Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. EJ1641C-E, Carol Isackson, Judge.
O'ROURKE, J.
William C. appeals juvenile court orders made at a six-month review hearing as to his minor children Peter C., Jennifer C. and Melissa C. (collectively, the minors). William contends the court erred by ordering him to have supervised visits with the minors, but allowing the minors to refuse a visit. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (Agency) has been involved with this family since 1999 when two-year-old Peter and one-year-old Jennifer became dependents of the juvenile court and were removed from parental custody based on findings William and the minors' mother, Tammy H., exposed the minors to domestic violence and William abused alcohol. When Melissa was born three months later, she was also declared a dependent and removed from the parents' custody.
William's progress was poor during the first six months of reunification services. When he threatened to kill the minors' relative caregiver and the social worker, the juvenile court issued a restraining order against him. The court continued services for both parents.
During the next review period, William was arrested for being drunk in public, and on another occasion, for domestic violence against Tammy. Tammy described a history of violent and threatening behavior by William that began in 1995. Tammy's injuries included three concussions, black eyes, lacerations to her mouth and facial bruising.
Tammy completed all aspects of her case plan and was having unsupervised visits with the minors. William was in residential treatment for alcoholism and was having supervised visits with the minors. The court returned the minors to Tammy's custody. It found William had not made substantive progress with his case plan, terminated his services and ordered him not to live in the family home.
In February 2001 William was arrested following a violent confrontation with Tammy while he was under the influence of alcohol. The court issued a restraining order against William, directing him to stay at least 200 yards away from the family home. By May 2001 William was attending Alcoholics Anonymous (AA) meetings, maintaining his sobriety and having unsupervised visits with the minors. Tammy had an extended support network and a safety plan for the minors. The court awarded physical custody of the minors to Tammy, ordered reasonable unsupervised visits for William and terminated dependency jurisdiction.
In April 2008 Agency filed petitions in the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging William had physically abused the minors (who were now 11, 10 and 8 years old). The petitions also alleged William drank excessively, rendering him unable to provide adequate care for the minors. William's physical abuse of the minors included choking, punching, hitting and kicking them, grabbing them by the hair, and throwing them across the room or into furniture. The court detained the minors in out-of-home care and ordered supervised visits for the parents.
Statutory references are to the Welfare and Institutions Code.
The minors said they were fearful of William, even when the social worker was present. They had seen him abuse alcohol and lose his temper, and they experienced physical abuse that caused marks or bruises on their bodies. Jennifer told the social worker she was afraid William would be angry and cause her to end up in the hospital. Jennifer said, "[He] hurts us so much, I don't feel it anymore. I am just use[d] to it." Melissa told the social worker, "[M]y daddy will be mad and beat us." Peter and Melissa were willing to attend a supervised visit with William, but Jennifer was not willing to do so because she was afraid of him.
Medical examinations confirmed the presence of injuries that were the result of physical abuse.
William refused to participate in services, including substance abuse treatment. The minors were encouraged to visit him. Peter and Melissa attended visits, and Melissa reported feeling "scared and... tingly with him like he is going to do something." Jennifer again refused to visit William.
At a contested jurisdiction and disposition hearing, the court sustained the allegations of the petitions as modified, declared the minors dependents and ordered them placed in out-of-home care. William appealed, and in an unpublished opinion, we affirmed the court's jurisdictional findings and dispositional orders. (In re Peter C. (Mar. 9, 2009, D053567) [nonpub. opn.].)
Specifically, William challenged the court's visitation order, arguing it did not address Jennifer's refusal to participate in visits with him.
In August 2008 William requested a special hearing to modify his case plan to include an order that the minors participate in visitation. Around the same time, Agency filed a section 387 petition on behalf of Peter, seeking to change his level of care from foster home placement to licensed group home. Agency alleged Peter had an emotional disability, including assaultive and self-injurious behaviors, requiring special care and treatment in a residential placement.
Agency reported Peter had engaged in violent behavior, injuring three staff members at New Alternatives. According to the clinical director at New Alternatives, the minors all expressed great fear of William, which manifested in their extreme behaviors. Their history of abuse and neglect was evident. Peter was assaultive and Melissa had a stress-related condition and an anxiety disorder. Jennifer also showed signs of anxiety.
The minors were enjoying their unsupervised visits with Tammy at New Alternatives. The social worker recommended William's visits remain supervised. She also recommended the court consider the minors' wishes and allow them to refuse visits without confronting William. The social worker explained the minors were highly traumatized children who needed to feel safe. Peter and Melissa's self-injurious behaviors represented the emotional turmoil they were experiencing.
William was having weekly supervised visits with Peter and Melissa. William's visits with Peter were later changed to unsupervised on the grounds of Peter's group home. Jennifer continued to refuse visits. William had been verbally abusive and threatened some of the staff at New Alternatives. He was noncompliant with his case plan and told the social worker he did not intend to participate in services.
The social worker requested a restraining order against William after he made two threatening telephone calls to Agency, including a threat to kill everyone. After an unsupervised visit with William, Peter told the social worker he was uncomfortable with unsupervised contact. William was loud and demanding during a telephone call with Melissa. During a supervised visit with William, Melissa looked frightened and asked that the visit not last more than five minutes. Before another visit with William, Melissa appeared to be in distress.
The minors were in three different placements but had weekly contact with each other. Tammy was participating in therapy and a parenting class, and having overnight weekend visits with the minors. William was unwilling to sign his case plan or participate in services.
At a special hearing on November 13, 2008, William asked the court to reaffirm its orders for visitation with the minors. Minors' counsel informed the court that Jennifer consistently requested no contact with William, and that Peter and Melissa were inconsistent as to whether they wanted contact with him. The court ordered supervised visitation for William with all three minors, but noted the minors were not to be forced to visit him. The court further ordered the minors to address their relationship with William in therapy with the goal of facilitating visits.
William agreed to supervised, rather than unsupervised, visits with Peter.
DISCUSSION
William contends the court's visitation orders impermissibly gave the minors the power to refuse all visits. He asserts the orders violated his right to visitation, especially where there was no showing visits were detrimental to the minors.
We decline to grant Agency's request to dismiss the appeal on the ground of forfeiture because William did not specifically challenge court's unlawful delegation of its authority regarding visitation at the special hearing. The issue of whether William's visitation with the minors should continue and the details of the visitation orders were squarely before the court, and thus are sufficiently preserved for appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [reviewing court has discretion to consider forfeited claims].)
A
"Visitation is a necessary and integral component of any reunification plan." (In re S.H. (2003) 111 Cal.App.4th 310, 317.) The juvenile court defines a parent's visitation rights by balancing the parent's interests in visitation with the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may impose restrictions on parental visitation, consistent with the child's best interests under the particular circumstances of the case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009; In re Clara B. (1993) 20 Cal.App.4th 988, 999.) Visitation orders must provide flexibility in response to the changing needs of the child and to dynamic family circumstances. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374, 1376.) The state's obligation to provide for the best interests of the child justifies any limited intrusion on a parent's right to visitation. (In re Melissa H. (1974) 38 Cal.App.3d 173, 175.)
The court may, however, deny a parent visitation if visitation would be harmful to the child's emotional well-being. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838-839; see also § 362.1, subd. (a)(1)(B) ["No visitation order shall jeopardize the safety of the child."].)
The juvenile court has the sole authority to determine whether visitation will occur and may not delegate that authority to the social worker, therapist or the child. (In re Christopher H., supra, 50 Cal.App.4th at pp. 1008-1009; In re Julie M. (1999) 69 Cal.App.4th 41, 51; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505.) Although the juvenile court may delegate the ministerial tasks of overseeing visitation to the person or entity best able to perform them, it must ensure regular visitation occurs. (In re Jennifer G., supra, 221 Cal.App.3d at p. 757; In re Moriah T., supra, 23 Cal.App.4th at p. 1374; In re S.H., supra, 111 Cal.App.4th at p. 317.)
A visitation order may properly permit consideration of a child's wishes regarding visits with a parent. "[T]he parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation." (In re S.H., supra, 111 Cal.App.4th at p. 317.) The court's duty to focus on the best interests of the minor includes considering "the 'possibility of adverse psychological consequences of an unwanted visit between [parent] and child.' " (In re Julie M., supra, 69 Cal.App.4th at p. 50, quoting In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238.) Thus, a child's aversion to visiting a parent may be a dominant factor in administering visitation, as long as it is not the sole factor. (In re Julie M., supra, 69 Cal.App.4th at p. 51.)
In making visitation orders, the court has broad discretion, which we review for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352.) In this regard, the juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
B
Here, the court's order does not vest the minors with absolute discretion to determine whether visitation should occur. Rather, the court ordered supervised visits between William and the minors, and balanced William's right to visitation with the minors' emotional well-being by allowing the minors to refuse a particular visit while at the same time requiring them to address the parent-child relationship in therapy. The court emphasized visits were to occur. While recognizing the minors should not be forced to visit William because of possible adverse consequences, the court noted it was important for the minors to improve their relationship with him. The court commented:
"So the most productive way to approach this and the healthiest way to approach it for the children and certainly for the father-child relationship is to keep the order [for supervised visitation] in place but to give the children the discretion, particularly given the ambivalence of the two girls, to accept or reject the offered visits on a regular basis with the understanding that this is an issue that they are to work on in therapy and that, ultimately, the expectation is that there will be some visitation, and there will be a relationship of some sort. The relationship can't be dealt with by saying we are going cold turkey and there will be no contact."
The court's visitation order reflects the history of this case in that William had been physically violent toward Tammy and the minors. Additionally, William instilled fear not only in the minors, but in their caregiver and the professionals involved in the case, requiring several restraining orders against him. When Jennifer was taken into protective custody in April 2008, she said William beat her so often that she had become used to it. All three minors expressed their ongoing fear of William. Peter was sometimes terrified of William, and worried that William's hostility would cause him to hurt people at Peter's group home.
Further, the minors' fear of William manifested in their serious emotional problems. Peter was assaultive, and he and Melissa engaged in self-injurious behaviors. Melissa had an anxiety disorder, and Jennifer was always worried, often in conjunction with William's visits. In the social worker's opinion, these were highly traumatized children who continued to experience emotional turmoil and needed to feel safe. Despite knowing the minors feared him, William consistently refused to participate in services to alleviate the protective issues. He never acknowledged the minors had been physically abused, and he denied having an anger or alcohol problem. Because the focus of dependency law is on the well-being of the child, the court could reasonably find forced contact with William could emotionally harm the minors. (See In re Mark L. (2001) 94 Cal.App.4th 573, 581.)
Moreover, the minors vacillated in their desires and willingness to see William but expressed their opinions to their therapists and the social worker about whether they wanted visits with him. Thus, the court was acting in the minors' best interests by making their input on visits a dominant factor in implementing the visitation order. (See In re Danielle W., supra, 207 Cal.App.3d at p. 1237.)
C
William relies on In re S.H., supra, 111 Cal.App.4th 310 and In re Hunter S., supra, 142 Cal.App.4th 1497, to support his argument the court's visitation orders impermissibly give the minors "de facto veto power to ensure no visitation will occur." We agree with the holdings in those cases to the extent they prohibit an order that allows a minor to have absolute discretion to veto or forestall any visitation at all. (In re S.H., supra, 111 Cal.App.4th at p. 319; In re Hunter S., supra, 142 Cal.App.4th at p. 1505; see also In re Julie M., supra, 69 Cal.App.4th at pp. 48-49 [juvenile court improperly delegated judicial power to the minors by giving them absolute discretion to decide whether mother could visit them].) Here, however, the court did not abdicate its authority to determine whether any visitation would occur. Indeed, the court made clear that visits would occur, but that the minors could express their opinions as to whether they were comfortable with a particular visit. The court conditioned its order on the minors' participation in therapy to address their relationship with William, and authorized conjoint therapy with William when appropriate. The minors were not given the power to veto all visits, but instead, the ultimate supervision and control for visitation remained with the court. (In re Danielle W., supra, 207 Cal.App.4th at p. 1237.) The court's visitation orders were well within its broad discretion.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.