Opinion
E066902
06-27-2017
In re A.A., et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. N.A., Defendant and Appellant.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1200771) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed with directions. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
N.A. is the father (Father) of two girls, A.A. and E.A. (the Children), who were ages 10 and eight on the date of the challenged order, September 14, 2016. Father appeals from the juvenile court's exit orders on visitation because (1) the orders do not specify the number of visits Father is to receive with the Children, and (2) the court required Father to pay for a monitor if he wants to visit the Children. We affirm the court's orders, but remand with directions to the juvenile court to specify the frequency and duration of Father's visits.
FACTS AND PROCEDURE
In October 2012, the Children were removed from their mother (Mother) for physical abuse and general neglect. They were also removed from Father at that time. In July 2013, the court placed the Children with Father on family maintenance. In March 2015, a court granted temporary custody of the Children to Father after the Riverside County Department of Public Social Services (DPSS) again became involved with Mother regarding her care of her two younger children.
On January 6, 2016, the Hemet family court granted sole physical and legal custody of the Children to Mother because of an open referral in San Diego County alleging Father sexually abused his 11-year-old stepdaughter. In December 2015, the Children's 11-year-old stepsister had reported that Father had touched her sexually on two occasions in 2014. Father left the residence before law enforcement arrived. San Diego County was currently investigating the child abuse referral.
The Hemet family court granted Father no visitation, pending further orders. Mother was to enroll the Children in therapy, and she and the Children's stepfather (Stepfather) were to attend therapy at the therapist's discretion. Stepfather was not to provide daycare for or be alone with the Children, but could watch them if they were asleep and Mother needed to run out for a brief errand.
Stepfather was the father of Mother's two younger children. He made no effort to reunify with them during previous dependencies. Despite a previous court order that he not have contact with his two children, Mother allowed him to reside in her home.
On the same day the Hemet family court granted Mother custody of the Children, DPSS received a 10-day referral alleging general neglect regarding Mother. The reporting party expressed concern that during the previous dependency the Stepfather had been accused of physically abusing the Children, Mother had not had contact with the Children for some time, and the reporting party did not know if the Children would be comfortable living with Mother.
The social worker noted previous allegations that Stepfather physically abused the Children had been substantiated.
DPSS began investigating the referral regarding Mother and Stepfather on January 12, 2016. When interviewed at their new school, both Children indicated they felt safe in Mother's home and had not witnessed any domestic violence or drug use. Mother told the social worker that Father had abused her physically, sexually, and emotionally during their marriage. The social worker decided to file an out-of-custody petition because of the family's extensive case history, the Children's younger half siblings were currently in an open family maintenance case, prior allegations regarding the Stepfather physically abusing the Children had been substantiated, Mother had a history of not following court orders, including a restraining order against Stepfather, and mother had not yet enrolled the Children in court-ordered therapy. The social worker was unable to contact Father to interview him. Both Mother and the social worker on the open sexual abuse referral in San Diego County stated Father had fled to Mexico.
DPSS filed the petition on January 14, 2016, alleging under Welfare and Institutions Code section 300, subdivision (j) (abuse of sibling), that the Children's half siblings had been abused or neglected, thereby placing the Children at risk of suffering similar harm.
At a detention hearing held on January 15, 2016, the court found a prima facie case and ordered the Children placed with Mother.
On February 17, 2016, DPSS filed a report for the jurisdiction and disposition hearing. Father had left a message for the parent locator social worker indicating his mother had told him they were looking for him, he was in Sinaloa, Mexico but could not provide a telephone number, and that he would call back. Father had three prior convictions; one for domestic violence, one for driving with a suspended license, and one for driving under the influence.
Father appeared at the jurisdiction and disposition hearing on February 22, 2016. Mother waived her rights and the court sustained the petition. The court placed the Children with Mother on family maintenance, but did not offer Father reunification services because the Children were not removed from Mother, and Father was not a custodial parent. The court authorized Father to visit with the Children twice a week, supervised by DPSS or a third party approved by DPSS.
DPSS filed a status review report on August 9, 2016. DPSS recommended terminating the dependency in favor of the family law orders from January 6, 2016 (granting Mother sole physical and legal custody), and that visitation for Father be supervised by a paid monitor or approved third party. Father was renting a room from his mother and working full time as a salesperson on commission. In addition to the Children, Father had a young son with his wife of five years, with whom the son lived. Father told the social worker that he was working on his relationship with his wife through counseling and that "whatever they are accusing me in San Diego is not true." While the San Diego County Child Welfare Service was investigating the sexual abuse referral regarding Father's stepdaughter, they implemented a safety plan stating Father was not to have contact with his son or stepchildren. Father had asked to have visitation with the Children once a week instead of the twice a week the court allowed, because of his work schedule. The visits took place at the DPSS office. Father was inconsistent with confirming the visits 24 hours in advance; for this reason, many visits were cancelled. Father was appropriate at the visits he did attend and the Children appeared bonded to him.
The six-month review hearing was held on August 22, 2016. Mother's counsel asked to have a further hearing set, with Mother asking that Father's visits with the Children be supervised by a professional paid monitor. Father objected. Father's counsel represented that they had a document from San Diego County indicating the sexual abuse referral regarding his stepdaughter had been closed, and asked DPSS to look into that. The court ordered DPSS to contact Mother regarding the visitation and authorized DPSS to contact San Diego County regarding Father's sexual abuse referral.
The letter referenced a different referral altogether. Dated April 22, 2016, the letter from San Diego County Child Welfare Services stated: "On 03/11/2016, we received a referral alleging that [Father's young son with his current wife] may be at-risk of General Neglect. [¶] After conducting an investigation, we have concluded that this referral may be closed, effective 04/22/2016. [¶] The agency recommends that father use appropriate services to communicate with [the young son] and children."
DPSS filed an addendum report on September 9, 2016. DPSS maintained the previous recommendations to terminate the dependency, that Mother have sole physical and legal custody of the Children, and Father have visits supervised by a paid monitor or an approved and mutually agreed-upon third party. Father had last visited with the Children in June of that year. The social worker met with each of the Children individually. Each child indicated they would like to visit with Father, but that sometimes he does not show up. Each child was excited about visiting with Father if the paternal grandmother (PGM) were to supervise the visit. Mother told the social worker that she was adamantly opposed to the PGM supervising the visits because: (1) she felt Father should build a relationship with the Children on his own, and that the PGM would become the focus of any visits if she was present; (2) Mother and the PGM did not have a good relationship and the PGM talks negatively about Mother; (3) she did not trust the PGM to be protective of the Children if Father were abusing drugs or alcohol, or if he was hurting the Children; and (4) the PGM had tried to take the Children to Mexico when the sexual abuse referral was made in San Diego.
The continued hearing was held on September 14, 2016. Counsel for the Children stated they wanted to visit with Father and recommended visits be conducted in the presence of a paid monitor because of the animosity between Mother and Father. Mother agreed. Father objected to having the visits supervised, on the basis that the current dependency was based on allegations regarding Mother, not Father, and that allegations regarding Father in San Diego County had been resolved. Father argued he would not be able to afford visits with a paid monitor because he was unemployed. He requested any supervision be done by the PGM or paternal aunts. DPSS was still recommending following the previous family law orders, but it appears from the record transcript that it was now recommending no visits for Father. The court terminated the dependency and granted sole physical and legal custody to Mother. The court ordered that "father's visits shall be supervised by a paid-for court monitor at father's expense."
Counsel for Father stated, "The only problem with that, Your Honor, is my client can't afford that. He's unemployed. Essentially that order would result in him not having visits."
"THE COURT: All right. And the Department's position is to follow the prior family law orders which deny father any visitation; correct [county counsel]?
[COUNTY COUNSEL]: Correct."
This differs from the recommendation in the previous and latest addendum reports that Father have supervised visits, so it may stem from a substitution in the appearing county counsel. In any case, the court did not follow this recommendation.
This appeal followed.
DISCUSSION
1. Failure to Specify Frequency and Duration of Visits
Father first contends the visitation order is illusory because the court did not specify the amount of visitation to which he is entitled. Father asks to have the matter remanded to the juvenile court so it can specify the frequency and duration of visitation.
DPSS responds initially that Father has forfeited his challenge regarding the frequency of visits because he failed to raise it at the hearing on September 14, 2016, at which the court made the order. Although we agree with DPSS that Father forfeited the issue by failing to raise it in the lower court (In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642; In re Richard K. (1994) 25 Cal.App.4th 580, 589-590), the waiver is not jurisdictional, and we choose to consider the claim on its merits (In re M.R. (2005) 132 Cal.App.4th 269, 272).
An order terminating a juvenile dependency proceeding and granting sole custody to one parent "may not delegate absolute discretion to determine whether any visitation occurs." (In re Chantal S. (1996) 13 Cal.4th 196, 213.) However, the court may delegate some discretion "to manage details of visitation such as the time, place, and manner thereof." (Ibid.) In Chantal S., for example, our Supreme Court held it was appropriate for the court to delegate some discretion to a therapist to determine when visitation should begin. (Id. at pp. 213-214.) The court may allow a third party, such as a guardian, "to decide the time, place, and manner in which visitation will take place." (In re M.R., supra, 132 Cal.App.4th at p. 274.) However, the court must set the frequency and duration of visitation. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314.) We review an exit order granting visitation under an abuse of discretion standard. (Ibid.)
Here, the court ordered, "The father's visits shall be supervised by a paid-for court monitor at father's expense." The court made no orders setting the frequency and duration of visits, effectively giving Mother discretion to decide how often, and whether, visits would actually occur. The remedy is to remand to the juvenile court with directions to specify the frequency and duration of Father's visits. (In re E.T. (2013) 217 Cal.App.4th 426, 439.)
DPSS relies on In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 and In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376, both of which hold that a juvenile court need not specify the frequency and duration of visits, as long as it does not delegate its discretion to determine whether any visitation will occur at all. These cases are readily distinguishable. In both cases, the juvenile court delegated its discretion to determine visit frequency and duration to the child welfare agency during ongoing dependency proceedings. As such, the court retained "supervision and control" over the agency's exercise of its discretion. (In re Christopher H., at p. 1010.) Here, the court made that delegation as part of orders terminating a dependency, the court delegated its discretion to the custodial parent with whom Father did not get along, and the court did not retain jurisdiction to supervise and control Mother's exercise of discretion over Father's visits. For these reasons, we do not find these cases persuasive or applicable to the facts of this case.
2. Requirement for Paid Visitation Monitor
Father also argues the juvenile court abused its discretion when it required that his visits with the Children be supervised by a paid monitor at his expense. Specifically, Father points to the evidence in the record that he was a noncustodial, nonoffending parent; that he was appropriate during visits with the Children; and the record does not establish that the Children would be at risk if he visited them unmonitored or monitored by his family members. Father's counsel argued in the trial court that Father was unemployed and so an order requiring a paid monitor would result in no visits.
"We normally review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or 'exit') order pursuant to section 362.4 for abuse of discretion (In re Stephanie M. (1994) 7 Cal.4th 295, 318) and may not disturb the order unless the court ' " 'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].' " ' [Citations.]" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.) " 'The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child. [Citation.]' " (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
We are not persuaded that the juvenile court abused its discretion. Mother obtained custody of the Children in January 2016, because child welfare officials were investigating reports that Father had sexually abused his 11-year-old stepdaughter in San Diego County. Father had avoided arrest by leaving the residence before law enforcement arrived, and then fled to Mexico. Although Father submitted a letter to the juvenile court stating that a separate referral regarding his young son had been closed, there is absolutely no evidence in the record that the sexual abuse referral had been resolved. For this reason alone, it was in the best interest of the Children to see their Father only in the presence of a professional monitor. Further, a neutral monitor, other than the PGM or a paternal aunt, was in the Children's best interest because Father and Mother did not get along, and Mother did not trust the paternal relatives to be protective of the Children, especially given Mother's claim that the PGM had tried to take the Children to Mexico during the child welfare referral in San Diego County. In addition, both the social worker and counsel for the Children stated it would be in the Children's best interest to have visits supervised by a paid, neutral monitor. Finally, as DPSS points out, Father had become inconsistent with his visits and as of September 2016, the Children had not seen him since June. It is reasonable to conclude that Father would be less likely to cancel scheduled visits if there was a fee associated with them. We acknowledge the statement of Father's counsel that Father was unemployed and unable to afford to pay a monitor. However, the record shows that Father had previously been employed full time, and there is no evidence that he had become unemployable. Even did the record contain evidence to that effect, it would still not negate best interest of the Children not to be left alone with a Father who faced unresolved accusations of sexually abusing their stepsister.
The court did not abuse its discretion when it ordered visits to be supervised by a paid monitor at Father's expense.
DISPOSITION
The court's orders are affirmed. We remand with directions to the juvenile court to specify the frequency and duration of Father's visits.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. FIELDS
J.