Opinion
H046530
10-22-2019
In re D.D., et al., Persons Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. K.V., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cruz County Super. Ct. Nos: 17JU00349,17JU00350, 17JU00351)
K.V. is the mother of 12-year-old D.D., 7-year-old S.D., and 5-year-old B.D. The Santa Cruz County Juvenile Court sustained a petition pursuant to Welfare and Institutions Code section 300 in 2017, declaring the children dependents of the court. In January 2019, the juvenile court terminated dependency jurisdiction and issued exit orders granting B.D., the children's father, sole legal and physical custody of the children and visitation for Mother.
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother appeals, arguing that the juvenile court's orders constituted an improper delegation of judicial authority because they granted Father complete discretion to decide if Mother would have visits with the children and failed to establish a minimum schedule of visitation for her. We agree, and reverse the orders regarding Mother's visitation with the children.
I. STATEMENT OF THE FACTS AND CASE
The Department first became involved with this family in 2006, when Mother gave birth to D.D. The Department investigated a general neglect allegation due to Mother's own severe trauma history. As a child and young adult, Mother lived in a cult-like setting with her family, and was molested by her biological father. When she became an adult, Mother had sex with her biological father in order to become pregnant and have a child with him. Mother ultimately gave birth to two of his children. In 2004, Mother's biological father murdered nine of his children who were the product of incest, including Mother's two children. The Department was concerned that Mother's experience would affect her ability to care for her newborn. Ultimately, the Department found the allegations of general neglect of Mother's newborn D.D. unfounded; however, it opened a voluntary family maintenance case to support Mother and Father from January 2007 to February 2008.
Mother and Father had two more children, S.D. and B.D. The couple never married, and terminated their intimate relationship in 2014. They remained friends and tried to co-parent their children as well as they could; however, Mother's emotional instability as a result of the severe trauma she had suffered affected her ability to safely care for her children. Mother suffered from severe Post-Traumatic Stress Disorder ("PTSD"), anxiety and depression. She had difficulty coping with the challenges of day to day living, and became overwhelmed by situations that others take in stride. Mother was prescribed medication for her depression, anxiety, and PTSD; but she took the medication inconsistently, and would stop taking it if she consumed alcohol.
In April 2014, the Department received two child welfare referrals regarding Mother driving under the influence of alcohol with the children in the car. The first referral occurred when Mother called Father to ask him to pick the children up because she drank alcohol while having dinner with her friend. Father refused to pick the children up and asked Mother to drive them home. The second referral was initiated when Mother drove into a parked car with her children in the car. The family agreed to a safety plan that prohibited Father from allowing Mother to care for the children if she was under the influence of medication or alcohol.
In 2016, the Department received a child welfare referral regarding alleged domestic violence against Mother by her then-boyfriend. The Department found the referral inconclusive; however, it instructed Father to seek full custody of the children in family court.
During August and September 2017, the Department received reports of incidents during which Mother seemed to be under the influence of alcohol and medication. The Department told Father it would evaluate the family for court-mandated services if he did not seek a family court order for full custody of the children.
On October 20, 2017, Father filed a request for a temporary emergency order of custody and visitation in the family court. The family court granted Father's request for temporary physical custody, care, and control of the children. Mother was granted at least four supervised visits with the children per week. Father agreed that pending the hearing for permanent visitation and custody orders scheduled for January 4, 2018, he would not leave the children in Mother's care unsupervised.
In November 2017, the Department filed a section 300 petition, requesting that the juvenile court take jurisdiction over the children. The petition alleged that the children had suffered, or there was a substantial risk that the children would suffer, serious physical harm or illness as a result of Mother's under treated mental health issues, including depression, anxiety and PTSD, and Mother's abuse of alcohol while taking her prescription medications. (§ 300, subd. (b)(1).) The petition also alleged that Father was unable to protect the children from Mother's behavior, because he was unable to establish firm boundaries with Mother, and allowed Mother to have unsupervised contact with the children. (§ 300, subd. (b)(1).) Finally, the petition alleged that the children were suffering or were at substantial risk of suffering serious emotional damage as the result of witnessing aggressive verbal arguments between the parents, which at times required law enforcement intervention. (§ 300, subd. (c).)
In an interview with the Department, Father responded to the allegations in the petition. Father said that he did not believe that Mother could function properly, and that Mother did not follow through with the visitation schedule set forth in the family court order. Father did not want Mother to lose her parental rights and he just wanted his children to be happy, healthy and safe. Father said that he wanted help for himself and Mother so that they could be the best parents they could be. Father explained that he was unable to maintain firm boundaries with Mother for many reasons, including the fact that he felt sorry for her because of her history of abuse. Father said that he felt torn between the needs of the children, Mother and himself.
At the jurisdictional hearing on January 16, 2018, the juvenile court sustained the amended petition and declared the children dependents of the court. The children were ordered to remain in the care of Father. Family maintenance services were provided to the parents, including a psychological evaluation and assessment of Mother, as well as counseling and psychiatric treatment. Father's services included individual counseling for his self-reported anxiety and depression, and his issues of co-dependency with Mother. The juvenile court ordered a minimum of two supervised visits per week for Mother, and it gave the Department the ability to adjust the frequency, duration, and supervision of the visits based on Mother's progress.
The Department prepared a six-month status review report. In it, the Department indicated that Mother's visits with the children between April 2018 and June 2018, were difficult for Mother. On a number of occasions, Father believed Mother was under the influence of alcohol while caring for the children. The Department no longer allowed Mother to have overnight visits with the children. To obtain overnight visits once again, she was required to engage in her case plan and demonstrate safe supervision skills.
On July 5, 2018, the juvenile court conducted a six-month family maintenance review hearing. The Department recommended that the family continue to receive maintenance services. Mother was having difficulty participating in her case plan. Father was participating in his case plan, but was unable to create and enforce boundaries with Mother. The juvenile court adopted the recommendations in the report, continued the dependency of the children, and ordered that Mother and Father continue to receive family maintenance services.
In advance of the 12-month review hearing, the Department prepared a report recommending that the juvenile court terminate dependency jurisdiction. The Department also recommended that the juvenile court issue exit orders granting Father sole legal and physical custody of the children, and that visitation be ordered for Mother, "with discretion as to frequency and duration to be determined by [Father] when [Mother] presents as clean and sober." Father reported that the Department's services had provided him information and skills to maintain boundaries with Mother and to manage his stress. The Department indicated that Father had proven that he could protect his children and keep them safe, and through his actions had decreased the risk of abuse and neglect to the children.
On January 3, 2019, the juvenile court held the family maintenance review hearing. The parties submitted on the recommendation to terminate jurisdiction. The juvenile court and the parties discussed visitation for Mother. The juvenile court stated that it would like to order at least one visit for Mother per week. Counsel for the children agreed that one visit per week was appropriate, and that it would be beneficial for the children to see Mother as frequently as possible. Mother's counsel requested a minimum visitation order of three times per week. Father's counsel stated regarding Mother's visitation: "[I]t's important to him that the children have a strong relationship with their mother and regardless of what the frequency ends up saying on the order, he certainly does want to support as much visitation between the children and their mother as can happen safely . . . ."
The Department requested the juvenile court depart from the standard order granting a minimum number of visits, and instead, order that Father determine when and if Mother could visit with the children based on how well she was doing at the time. In response, the juvenile court stated: "I guess my concern here is that, again, I see [Father], if [Mother] is taking care of herself and she is being appropriate with the children, that they are going to have up to three times per week so long as it's supervised, but if she's not taking care of herself, which has shown in here that she—it may really be appropriate in this case that there be no visitation."
At the conclusion of the hearing, the juvenile court terminated dependency jurisdiction. In its final order of custody and visitation, the juvenile court stated: "These custody orders are going to open a family law case, and I am going to grant sole legal and physical custody to [Father]. I am not ordering specific visitation as per the attached JV[-]206, but the visit's [sic] frequency and duration shall be determined by [Father], or visits shall be supervised by [Father] or his designee. [Mother] must arrive—she must be sober, not under the influence of any controlled substance during the visits, and the children shall not be left unsupervised. [¶] The only thing—any visits missed due to her not presenting cannot be made up—I think that language might be confusing because it looks like a minimum, so I am going to take that language out. So those will be the existing orders."
The JV-200 custody order form filed in this case stated: "Visitation of [Mother] . . . (c.) No visitation order for the reasons stated on the attached form JV-206." The form also stated: "Other findings and orders . . .: Visitation frequency and duration to be determined by [Father]. Visits shall be supervised by [Father] or his designee. [Mother] must arrive clean and sober . . . . The children shall not be left unsupervised with [Mother]." The JV-200 form referred to a continuation on form JV-206, which identified two choices on the line for visitation. One choice was represented by a box that said "no visitation." The second choice was represented by a box that said "only supervised visitation." The box checked in this case was the latter, and reflected the choice of "only supervised visitation" for Mother.
Mother filed a timely notice of appeal on January 3, 2019.
II. DISCUSSION
A. Standard of Review
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123 (T.H.); §§ 364, 362.4.) These orders become part of any family court proceeding regarding the child, and remain in effect unless and until the family court terminates or modifies them. (In re Roger S. (1992) 4 Cal.App.4th 25, 30.) We review such orders for abuse of discretion. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) The court abuses its discretion when it allows a third party, including the child, the therapist, the custodial parent, or the social worker, to determine whether any visitation will occur, for this constitutes a violation of the separation of powers doctrine. (In re S.H. (2003) 111 Cal.App.4th 310, 317 (S.H.); In re Julie M. (1999) 69 Cal.App.4th 41, 49-50.) "The power to decide whether any visitation occurs belongs to the court alone." (S.H., supra, at p. 318.) The principle that the power to determine the right and extent of visitation by a noncustodial parent resides with the court alone and may not be delegated to third parties applies both to orders issued during dependency jurisdiction and "exit orders" issued under sections 362.4 and 364 when dependency jurisdiction is terminated. (T.H., supra, 190 Cal.App.4th at p. 1123.)
Courts also recognize that visitation arrangements require flexibility to maintain and strengthen the relationship between a parent and child while protecting the child's well-being. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374, 1376.) The court thus may delegate to a third party the responsibility for managing the details such as the time, place and manner of the visits; however, it may not delegate to any third party the discretion to determine the frequency and length of visits because to do so allows the third party to decide whether visitation will occur. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314; see also T.H., supra, 190 Cal.App.4th at pp. 1123-1124 [abuse of discretion for the court to issue a visitation order that provided that visitation would occur as "determined by the parents"]; In re Jennifer G. (1990) 221 Cal.App.3d 752, 757-758 [visitation order is improper if it fails to specify the frequency and length of visitation].)
B. The Custody and Visitation Exit Order Constituted an Improper Delegation of Judicial Authority
Mother argues the exit orders in this case were improper because, while they granted her "supervised visitation," they failed to specify the minimum frequency of her visits, allowing Father complete discretion to decide whether visitation would actually occur. The Department concedes that if the juvenile court grants visitation, "it must . . . ensure that at least some visitation, at a minimum level determined by the court itself, will in fact occur." (S.H., supra, 111 Cal.App.4th at p. 313.) The Department acknowledges the visitation orders in this case delegated the authority to determine the frequency of Mother's visits, or whether visits would occur at all, to Father; however, the Department asserts the juvenile court did not err in this case, because it ordered that Mother should have "no visitation." Therefore, according to the Department, the juvenile court was not required to specify a minimum amount of visitation.
The record does not support the Department's contention. As noted above, the two custody forms used in this case were utilized by the court to devise visitation orders for Mother. While the JV-200 custody form stated: "Visitation of [Mother] . . . (c.) No visitation order for the reasons stated on the attached form JV-206," the JV-206 form itself provided that Mother have "supervised visitation," rather than "no visitation." It is reasonable to conclude that had the juvenile court intended that Mother have no visitation whatsoever, the box on form JV-206 stating "no visitation" would have been checked.
The clerk's minute orders from the hearing similarly reflected that the juvenile court did not issue a "no visitation" order for Mother. The orders stated: "Sole legal and physical custody and primary residence awarded to father. No specific visitation is ordered. Visitation may occur as outlined in the order as follows: visitation frequency and duration to be determined by father. Visits shall be supervised by father or his designee. Mother must arrive to visits clean and sober, and the minor[s] shall not be left unsupervised with mother." The use of the phrase "no specific visitation is ordered," reflected the court's intent that no minimum number of visits be specified, not that Mother be precluded entirely from visiting the children, which is the import of a "no visitation" order.
Finally, the reporter's transcript of the hearing confirms that the juvenile court did not issue a "no visitation" order. At the conclusion of the hearing, the juvenile court stated: "I am not ordering specific visitation as per the attached JV[-]206, but the visit's frequency and duration shall be determined by [Father], or visits shall be supervised by [Father] or his designee. [Mother] must arrive—she must be sober, not under the influence of any controlled substances during the visits, and children shall not be left unsupervised." The juvenile court's orders did not state Mother should be denied all visitation; rather, the orders outlined the conditions Mother must meet to exercise supervised visitation. Based on the written and oral record of the proceedings, we conclude the juvenile court ordered supervised visitation for Mother. The clerk's minute orders, the JV-200 and JV-206 custody forms, and the oral record at the family maintenance hearing, when considered as a whole, evidence the intent of the juvenile court to grant Mother supervised visitation if she was sober and stable.
We recognize the challenge the juvenile court encountered when attempting to craft exit orders that maintained the safety of the children while honoring the progress of these parents. Throughout the period of the dependency, the family navigated the social services system such that the juvenile court determined it was no longer required to exercise its jurisdiction to guarantee the safety of the children. The record makes it clear that by issuing exit orders, the juvenile court and the juvenile justice partners present at the hearing were celebrating a success for this family. However, the court and the Department remained concerned that Mother would relapse after the termination of dependency jurisdiction. As a result, the juvenile court attempted to safeguard the children through Father.
Where the juvenile court erred was in ceding to Father the sole authority to determine the minimum frequency and duration of the visits. Had the court ordered a minimum number of supervised visits of a certain duration within a given period, the juvenile court would have met its obligation to establish Mother's right to visit with the children, and the order would have been properly issued. (S.H., supra, 111 Cal.App.4th at p. 313.) Nor would such an order have eliminated the court's goal of providing flexibility to increase Mother's visitation if she remained sober; having established a baseline schedule of visitation to Mother, nothing precluded the parents from agreeing on additional safe visitation.
However, by virtue of the wording of the orders, the juvenile court granted Father discretion to determine the duration and frequency of Mother's visitation, even if Mother was not posing a risk to the well-being of the children. In delegating this authority to determine when, how often and for how long visits were to occur, the juvenile court abused its discretion; having determined that Mother should be allowed supervised visitation, the court was required to establish a minimum number of visits Mother was entitled to receive so that Father could not veto that right entirely. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690-1691 [visitation order was improper because it provided the child services agency with no guidance as to when, how often, and under what circumstances visitation should occur]; T.H., supra, 190 Cal.App.4th at p. 1124 [when juvenile court ordered supervised visitation upon the "agreement of the parents," it provided mother an effective veto power over father's right to supervised visitation].)
As written, the order granted Father the discretion to forestall all visitation to Mother without violating the order's terms, for reasons not based on Mother's sobriety or any risk of harm she posed to the children. He could, for instance, approve Mother's safe visitation with the children no more than one time yearly without technically violating the order. While the parents at the time the court issued the exit orders appeared to be cooperating in the children's best interest, the juvenile court, having deemed an award of visitation to Mother appropriate, was required to issue exit orders that would recognize her rights as the noncustodial parent by establishing a minimum visitation schedule, enforceable even if the relationship between the parents deteriorated.
We note that the juvenile court's exit orders also required Mother to "arrive to visits clean and sober." This imposed an obligation on Father, as the stable custodial parent and visitation supervisor, or on the person he designated to supervise the visits, to determine if Mother should be permitted to visit the children based on her sobriety at the scheduled time of the proposed visit. The reviewing court in T.H. concluded that a supervised visitation order providing for visitation on the "agreement of the parents" was improper because it granted the mother, who was hostile to the father's visitation, de facto power to veto visitation. (T.H., supra, 190 Cal.App.4th at p. 1123.) However, for the benefit of the juvenile court on remand, we conclude that although the supervised visitation and sobriety conditions before us also provided Father or his designee the ability to deny or terminate a visit, this order would have been properly issued had the juvenile court established a minimum visitation schedule, fully exercising its power to determine the right and extent of visitation to Mother as the noncustodial parent.
The role of a visitation supervisor, as well as a parent, is to protect children from any possible impact of the supervised parent's behavior that poses a danger to the children. A major reason the juvenile court initially established dependency jurisdiction over the children was Father's failure to meet his parental obligation to protect the children from the effects of Mother's substance abuse and her experience of depression and anxiety. Father struggled with his inability to establish appropriate boundaries with Mother when she abused alcohol and prescription medications or exhibited mental health symptoms that placed the children at risk. If the juvenile court established a minimal visitation schedule and required supervised visitation with conditions of sobriety and safe conduct by Mother, assuming she maintained sobriety and did not evidence mental instability around the children, Father would have no authority to deny Mother her right to supervised visitation with the children. Only if Mother violated that sobriety condition or otherwise endangered the children in the visit would Father or his designee be authorized to deny or terminate a particular visit for the safety of the children. This aspect of the juvenile court's order therefore appropriately described the circumstance under which Mother's visitation could proceed, and did not award Father unfettered discretion to establish a visitation schedule, or to deny Mother access to the children when she was sober and in good mental health. Coupled with the juvenile court's establishment of a minimum schedule of visitation, Father's obligation to terminate or deny a visit based on Mother's lapse from sobriety or conduct placing the children at risk, would not constitute an improper delegation of judicial authority, but would be an appropriate method to ensure the safety of the children at the visits established by the juvenile court's orders.
Because the juvenile court improperly delegated its authority to establish a minimum visitation schedule to Father, we reverse the exit orders and remand the matter to the juvenile court to formulate orders that establish the frequency of visitation appropriate for Mother, if visitation is in the children's best interest when the court conducts its hearing. (In re John W. (1996) 41 Cal.App.4th 961, 973.) Because the circumstances of the family may have changed since the court issued its exit orders, "the court should consider any relevant evidence proffered by the parties regarding the terms of the visitation order. [Citations.]" (T.H., supra, 190 Cal.App.4th at p. 1124.)
III. DISPOSITION
The order dated January 3, 2019 is reversed. The matter is remanded to the juvenile court for the purpose of ordering visitation for Mother, if such award of visitation is in the best interest of the children.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.