Opinion
H047472
10-08-2020
In re M.P. et al, Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. G.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. 18JD025252, 18JD025254, 18JD025255, 18JD025256)
G.D. (mother) appeals from an order terminating the dependency jurisdiction of the juvenile court over her four children, granting physical and legal custody to their father (B.P.), granting mother supervised visitation with the children, and allowing father to determine when mother's visitation can become unsupervised. Mother argues the final aspect of the order improperly delegates to father the discretion to allow unsupervised visitation. For the reasons set forth below, we find no prejudicial error and affirm.
I. BACKGROUND
A. Dependency Petitions and Initial Detention Hearings
On June 26, 2018, the Santa Clara County Department of Family and Children's Services (the Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (c) on behalf of then-16-year-old Michelle P. The petition alleged that San Jose police had placed Michelle into protective custody two days earlier because mother had punched and slapped Michelle and pulled her hair during a physical altercation. The petition further alleged that mother had a history of using excessive physical discipline on the children and that father had perpetrated domestic violence against mother and exposed the children to that violence.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
A detention hearing was held on June 27, 2018. The juvenile court found that the Department had made a prima facie showing that Michelle came within section 300 and that remaining in mother's physical custody posed a substantial danger to Michelle's physical and emotional health. The court ordered Michelle detained.
The Department filed section 300 petitions on behalf of Michelle's younger siblings—M.P. (age 13), Jordan P. (age 9), and J.P. (age 7)—on June 28, 2018. Those petitions alleged the same facts as the petition filed on Michelle's behalf and alleged that there was a substantial risk that the children would suffer serious physical harm inflicted by mother (§ 300, subd. (a)), serious physical harm or illness as a result of the parents' failure or inability to protect them (id., subd. (b)(1)), and serious emotional damage as a result of the parents' conduct (id., subd. (c)). The petitions further alleged that the children's sibling, Michelle, had been abused and that there was a substantial risk that the they too would be abused or neglected. (Id., subd. (j).)
At a July 2, 2018 detention hearing, the juvenile court found that the Department had made a prima facie showing that M.P., Jordan, and J.P. came within section 300 and that remaining in mother's physical custody posed a substantial danger to their physical and emotional health. The court ordered them detained as well.
When the social worker came to take M.P., Jordan, and J.P. into protective custody, mother accused the social worker "zapping" or threatening to "zap" Jordan and called the police. When police responded, Jordan denied being zapped by the social worker.
B. Jurisdiction and Disposition Report and Hearing
The Department filed a jurisdiction and disposition report dated July 24, 2018 recommending that the petitions be sustained and that the parents receive family reunification services. The report stated that mother had filed for divorce from father in April 2017 and that the resulting family court case remained active. It further stated that mother had temporary sole custody of the children before they were taken into protective custody and that a domestic violence restraining order against father protecting mother and the children was in place. The report described 12 prior referrals for neglect and physical abuse involving the family dating back to 2006.
The Department social worker interviewed the family members multiple times. Michelle stated that the fight that led to her removal started when mother hit her and pulled her hair. Michelle admitted responding by biting mother. Michelle said that mother hits, slaps, and yells at the children and pulls their hair.
M.P. reported that the fight began when Michelle refused her mother's request to stop communicating with her boyfriend on her tablet. M.P. saw Michelle bite mother and saw mother punch Michelle during the fight. M.P. also told the social worker that mother and Michelle had engaged in multiple physical fights, which the younger children had tried to break up. M.P. said that mother regularly left the children home alone, hit them, and told them to lie about the abuse to the Department. M.P. reported experiencing suicidal thoughts in the past.
Jordan reported seeing mother pull his sisters' hair. He also told the social worker that he has anger problems and had hit his siblings and his mother in the past and had once considered suicide.
Mother's adult niece, who lived with mother from age nine to 18, told the social worker that mother regularly physically abused her and the other children by pulling their hair and hitting them in the face. The niece further reported that mother yelled, name-called, and was emotionally abusive.
Mother denied causing Michelle any injury during the fight and denied ever hitting or harming any of the children. She blamed father for the children's aggressive behavior. Mother told the social worker that Michelle is autistic and that all of the children have special needs.
An addendum report dated August 7, 2018 stated that the children were moved from foster care to placement with their paternal grandmother in early August. The social worker further reported that mother continued to take "no responsibility and accountability for her actions with respect to the physical abuse, describes the children as manipulative, dishonest, and continues to deny physical abuse towards the children." It was also reported that "mother has demonstrated paranoia, delusional thoughts and distorted reality" and "feels everyone is against her and blames the father and paternal relatives for all the children's behaviors and suffering."
The court held a jurisdictional and dispositional hearing on August 7, 2018. Mother and father submitted on the Department's reports. The court found the allegations in the petitions true and declared the children dependents of the court. The court also modified the outstanding restraining order to protect only mother, not the children. The parents were given supervised visitation with the children and reunification services. Mother's court-approved case plan required her to, among other things, complete a parenting class, a child abuser's treatment program, and a program of counseling or psychotherapy. Father's court-approved case plan required him to, among other things, complete a parenting class, a batterer's intervention program, and a program of counseling or psychotherapy.
C. Interim Review Report and Six-Month Review
In the Department's interim review report, dated October 1, 2018, the social worker reported that mother and father were "engaging in their case plan services," had "maintained ongoing communication with this Social Worker," and had been "consistent with their weekly visits and are communicating with this Social Worker for any visitation issues."
In advance of the six-month review, the Department filed a status review report dated February 4, 2019. The Department recommended reunifying the children with father and providing mother with services to enhance visitation. The report stated that mother had been denied enrollment in a child abuser's treatment program because she did not admit having abused the children and the program coordinator stated that the program only works for those who are accountable for their actions. The social worker reported that the older children did not engage with mother during her supervised visits and at times walked out of those visits. Mother denied that there was anything she needed to work on. Father's visits had moved to unsupervised. The social worker had observed some of father's visits and reported that all of the children's faces lit up when they saw their father and they would run up to hug him. Father interacted appropriately with the children during those visits. Michelle and M.P. stated that they wanted to live with father. Jordan stated that he wanted to spend time with both parents, but if he had to choose to spend more time with one parent it would be father.
On April 3, 2019, the court ordered the children into father's care under a family maintenance plan. Mother's family reunification services were terminated; she was offered visitation enhancement services and granted two-hour-long supervised visits with children twice a week.
D. Family Maintenance Review
The Department filed a status review report dated September 30, 2019 in which it recommended that, at the twelve-month family maintenance review, the court dismiss the dependency and grant physical custody to the father and joint legal custody to father and mother. The social worker reported that Michelle, M.P., and Jordan all wanted to continue living with father. Michelle and M.P. believed they could have unsupervised visits with mother. However, they expressed concern about their younger brothers being alone with mother for fear that she would bad mouth father or be unable to break up fights between the boys without hitting them. The social worker further reported that mother was in the process of completing a child abuse treatment program. A progress report from that program stated that, at the beginning of the program, mother had been focused on father and the changes he needed to make. Her attitude had improved, and she had become more self-focused. However, it was noted that she continued "to focus on her children's father and place a lot of blame on him."
The Department noted in an addendum report that, while mother states that Michelle is autistic, Michelle and father deny that she has autism and the Department had no documentation confirming an autism diagnosis. The addendum report further stated that "[t]here was a concern that M[.P.] might have Macular Degeneration disorder, however . . . the paternal grandmother took [her] to see an Ophthalmologist. The paternal grandmother stated that she was informed that M[.P.] does not have Macular Degeneration disorder." Finally, the Department reported that a psychiatrist had determined that Jordan no longer needed to take Ritalin for ADHD.
The court held a contested 12-month review hearing on October 21, 2019. Mother testified that Michelle is autistic and has various other special needs, that M.P. has macular degeneration that is causing her to lose her eyesight and her hearing, and that Jordan has severe ADHD.
E. Dismissal and Exit Order
At the close of the contested review hearing, the juvenile court terminated its jurisdiction, dismissed the dependency, and granted father physical and legal custody of the children. The court further ordered that mother have supervised visitation with the children for a minimum of four hours once a week. Orally, the court stated that it was giving father "the authority, in particular for the girls, to determine when a move to unsupervised visits would be appropriate. . . . I appreciate that, certainly, Michelle and [M.P.] believe that they can have unsupervised. I don't think that's warranted at this time, but [father] can make that determination. It's clear that Michelle is creeping toward 18 [years old], so the closer she gets to 18, probably the more flexibility she should have in terms of that visitation, but the Court will not be making that determination. That will be up to [father]." The minute order states: "[Father] shall determine when visits between the mother and Michelle & [M.P.] will move to unsupervised."
Mother timely appealed.
II. DISCUSSION
Mother challenges the aspect of the exit order granting father discretion to determine when visitation with Michelle and M.P. can move from supervised to unsupervised. Mother argues that order constitutes an improper delegation of judicial authority. Father and the minors argue that the juvenile court did not err or, if it did, that any error was not prejudicial to mother. The Department has filed a letter brief in which it takes no position regarding whether the juvenile court appropriately delegated visitation decisions to father.
A. Legal Principles
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make exit orders regarding custody and visitation. These orders become part of any family court proceeding concerning the same child and will remain in effect until they are modified or terminated by the family court. The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the juvenile court and may not be delegated to nonjudicial officials or private parties, including the parents themselves. [Citations.] The rule of nondelegation applies to exit orders issued when the dependency jurisdiction is terminated. [Citations.]" (In re Armando L. (2016) 1 Cal.App.5th 606, 616.) "A visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner." (In re T.H. (2010) 190 Cal.App.4th 1119, 1123 (T.H.).)
We review exit orders for abuse of discretion and must affirm unless the court's decision was arbitrary, capricious, or patently absurd. (In re M.R. (2017) 7 Cal.App.5th 886, 902.)
B. Analysis
This appeal raises two issues: (1) is the decision whether visitation by a noncustodial parent must be supervised the type of ministerial task that the court may delegate to a third party and (2) if so, may the court delegate that decision to the custodial parent. We address each in turn.
First, however, we consider the issue of forfeiture. Mother did not object to the exit order below on grounds it improperly delegated judicial power to father. Accordingly, she has forfeited the claim on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Even if we were to exercise our discretion to excuse any forfeiture, as mother urges us to do, we would reject mother's challenges for failure to show prejudice as discussed below.
No published case specifically addresses whether the decision to require supervision of court-ordered visitation may be delegated. However, case law supports the conclusion that it may be. Courts have stated that "[o]nly when [a visitation order] delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.) [same]; T.H., supra, 190 Cal.App.4th at p. 1123 ["Several appellate courts have overturned visitation orders that delegate discretion to determine whether visitation will occur, as opposed to simply the management of the details"].) Indeed, we have found no case, and mother cites none, reversing an exit order for delegation of anything short of the discretion to determine whether any visitation will take place. Here, there is no dispute that court-ordered visitation will occur; the question is whether visitation with the two eldest children will be supervised.
Mother suggests that there exists a parental right to unsupervised visitation that is distinct from the right to supervised visitation, both of which the juvenile court must define. However, she identifies no legal authority for that position, nor are we aware of any. We are sympathetic to mother's desire to attain unsupervised visits with her children and do not disagree with the premise that qualitative differences exist between supervised and unsupervised visits. Nevertheless, case law does not support mother's view that the juvenile court cannot delegate the decision to move from supervised to unsupervised visitation.
T.H., on which mother relies, is distinguishable. There, the exit order "provided that supervised visitation would occur, but only upon the 'agreement of the parents[,]' . . . [thereby] effectively delegat[ing] to [the custodial parent] the power to determine whether visitation [would] occur at all." (T.H., supra, 190 Cal.App.4th at p. 1123.) The exit order here gives father no such veto power with respect to visitation. It ensures that visitation will occur, giving father discretion only as to whether the visits with the eldest children are supervised.
We need not definitively decide whether the juvenile court properly can delegate the decision whether visitation will be supervised because, even assuming the juvenile court erred, mother suffered no prejudice. In In re Chantal S. (1996) 13 Cal.4th 196, 202 (Chantal S.), our Supreme Court considered the propriety of an exit order stating that father could have visitation only after "attend[ing] therapy regularly and mak[ing] satisfactory progress for a time . . . as determined by his therapist." The court acknowledged that the order vested "some discretion in a therapist of [father's] choice, to determine when 'satisfactory progress' has been made and the ordered visitation may begin," but concluded that "[e]ven assuming arguendo that the order delegated too much judicial discretion, father is not prejudiced thereby." (Id. at pp. 213-214.) Noting that the father conceded that "the juvenile court would have been within its discretion if it simply denied him any visitation," the court reasoned that the challenged order amounted "to a windfall to father, not a violation of his rights." (Id. at p. 214.) Accordingly, the court rejected the father's challenge and affirmed the exit order. (Id. at pp. 214-215.)
Similarly, here, mother does not dispute that the juvenile court could have ordered only supervised visitation without any possibility of unsupervised visits without abusing its discretion. Citing Justice Mosk's dissent in Chantal S., mother argues that the juvenile court nevertheless erred because "[t]he authority to deny lawfully does not entail a power to grant unlawfully." (Chantal S., supra, 13 Cal.4th at p. 216. (conc. & dis. opn. of Mosk. J.).) Of course, it is the majority's decision in Chantal S. that we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And it compels us to reject mother's challenge to the exit order on the ground that she suffered no prejudice.
Mother also argues that, even if the decision to require supervision of court-ordered visitation may be delegated to a third party, it may not be delegated to the custodial parent. She maintains that such authority may be delegated only to an entity, such as the County Department of Family and Children's Services, that " 'acts as an arm of the court in the best interests of the minor . . . .' " (In re Moriah T., supra, 23 Cal.App.4th at p. 1374 [justifying delegation of responsibility to manage the details of visitation to county welfare department].) At least one court of appeal has noted that the delegation of authority to a third party that is "not statutorily bound to 'act as a cooperative arm of the juvenile court' " "raises additional concerns." (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 [reversing order delegating to private therapist sole discretion as to whether any visitation is permitted].)
Given the contentious nature of mother and father's relationship, mother's concern that father may struggle to exercise his discretion regarding unsupervised visitation objectively and in the children's best interest is not unreasonable. Notably, here, the Department asserts in its letter brief that the decision regarding whether visits would remain supervised could not have been delegated to it in this case because, after the juvenile court dismisses a case, the Department is no longer formally involved with the family. We need to determine whether the court erred in delegating the issue of supervision to father. For the reasons discussed above, binding Supreme Court precedent compels us to conclude that any error resulted in no prejudice to mother and to reject her challenge on that basis. (Chantal S., supra, 13 Cal.4th at pp. 213-214.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P.J. /s/_________
BAMATTRE-MANOUKIAN, J.