In re Joshua C.
Filed 10/11/12 In re Joshua C. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re JOSHUA C., a Person
Coming Under the Juvenile Court Law.
B239282
(Los Angeles
County
Super. Ct.
No. CK86130)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
APPEAL from
orders of the Superior court of Los Angeles
County, Marilyn Kading Martinez, Temporary Judge. Affirmed in part, reversed in part, and
remanded.
Roni
Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Emery El
Habiby, Deputy County Counsel for Plaintiff and Respondent.
>
INTRODUCTION
J.C.,
presumed father (father) of now 16 year-old Joshua C., appeals from the
juvenile court’s order terminating jurisdiction pursuant to Welfare and
Institutions Code section 364, subdivision (c)[1] and its exit orders granting mother, J.G.
(mother), sole legal and physical custody of Joshua and failing to order
mandatory monitored visitation and conjoint counseling. We affirm the juvenile court’s termination of
jurisdiction and its exit orders, except for its visitation order, which order
we reverse and remand to the juvenile court.[2]
BACKGROUND
This matter
returns to this court for the second time.
We set forth the facts from our March
5, 2012, opinion (Court of Appeal Case No. B235651) as background:
“Mother and
father were not married. Mother and
father lived together until Joshua was two years old and then separated. Mother and father had conjoint custody of
Joshua. On December 4, 2010, while then
14-year old Joshua was visiting father, father accused Joshua of taking $2,000
from father and giving it to mother. When
Joshua denied taking the money, father became very upset and repeatedly hit
Joshua on his face and body with a closed fist.
Father also struck Joshua four times on his chest and leg with a belt. Father swore at Joshua and kicked him out of
the house, telling him not to return unless he had the money. Father said that if Joshua did not return
with the money within one hour, he would call the police. Joshua went to mother’s home and told mother
what father had done. Mother took Joshua
to a police station, and she and Joshua filed a report. An officer observed a red mark on Joshua’s
chest that was consistent with Joshua having been struck by a belt. Father was arrested, and mother obtained a
temporary restraining order against father.
“The social
worker who interviewed Joshua noted that Joshua’s face and neck were red. Joshua told the social worker that he did not
take father’s money. Joshua reported
that he was afraid of father who always mistreated and disparaged him. Joshua did not want to have visits with
father because he was afraid of father.
“Father
told the social worker that he could not talk about the case and that his
attorney would call the social worker.
Father’s attorney told the social worker that he had instructed father
not to speak with the social worker without the attorney being present. By letter, the social worker invited father
to be present at a team decision meeting.
Father responded by letter that he would not attend the meeting because
he had a criminal case pending and his attorney requested that he not make any
statements about his case.
“On January
18, 2011, the Department filed a petition under section 300 that, as amended,
alleged that father inappropriately physically disciplined Joshua by repeatedly
striking him with a belt; that such discipline was excessive and caused Joshua
unreasonable pain and suffering; that such discipline endangered Joshua’s
physical and emotional health and safety and placed Joshua at risk of physical
and emotional harm, damage, danger, and physical abuse; and that Joshua did not
want to reside with or visit father due to father’s discipline. The juvenile court found a prima facie case
that Joshua was a person described by section 300 and ordered Joshua
detained. The juvenile court released
Joshua to mother.
“On May 10, 2011, father pleaded no
contest to a violation of Penal Code section 273(a), subdivision (b),
misdemeanor cruelty to a child and was placed on summary probation for four
years with seven days in jail. On May 17, 2011, father pleaded no
contest to the allegations in the amended section 300 petition.
“On July
11, and 12, 2011, father filed substantively similar section 388 petitions that
sought to change the juvenile court’s orders detaining and releasing Joshua to
his mother. The juvenile court denied
father’s section 388 petitions without a hearing on the grounds that the
petitions did not state a change of circumstance or present new evidence and
the proposed orders did not promote Joshua’s best interest.”
In our
March 5, 2012, opinion, we held that the trial court did not err in denying
father’s section 388 petitions. The
following facts took place after the facts set forth in our prior opinion:
Father
visited Joshua in the beginning of July 2011.
Before the visit started, Joshua told father that he did not want to be
there. Father told Joshua to make the
best of it. Father and Joshua engaged
with each other as Joshua used father’s laptop computer to show father YouTube
videos and share music he had made.
Father praised Joshua for a job well done, and told him that he was
proud of him. Father and Joshua also
played games on the computer.
On August
4, 2011, a social worker picked up Joshua for a visit with father. While in the car, Joshua told the social
worker that he did not want to see father that day. When the social worker asked why Joshua had
not called and canceled the visit, Joshua said that he knew visits were
court-ordered and that he had not seen father in a while. According to the social worker, the visit
went well. Father brought his laptop
computer, and he and Joshua played computer games.
A week
later, a social worker picked up Joshua to take him to visit father. Joshua told the social worker that he did not
like visiting father. The social worker
asked Joshua if he wanted to visit father that day. Joshua responded, “yes, because it is a court
order.” During the visit, Joshua seemed
upset, and father asked him if he was okay.
Joshua responded that he was “done with this,” and did not want to
continue visiting father. Father tried
to speak with Joshua several times during the visit. Eventually, Joshua “opened up” to father, and
they listened to music and watched music videos on father’s laptop
computer. Father was appropriate
throughout the visit. Joshua did not say
good-bye to father at the end of the visit.
When the social worker took Joshua home, Joshua said that he was through
visiting father.
The
following week, Joshua called the social worker and stated that he would not
attend his visit with father because he had things to do. Informed that Joshua would not attend the
visit, father stated that, pursuant to a court order, only he had the authority
to cancel visits.
Joshua and
father began conjoint counseling sessions in August 2011. Mother complained to the social worker that
according to Joshua, the focus of the first session was father’s issues with
his own mother and not father’s and Joshua’s problems. Later that month, Joshua told the social
worker that he did not want to continue conjoint counseling with father because
he was tired of father “blaming everyone about their problems and always
talking bad about his mother.” Joshua
told the social worker that at the most recent counseling session, father
complained that no one listened to him and that the social worker, mother, and
the Department were all against him.
According to Joshua, father spoke about “the abuse as ‘discipline,’” and
said that it was mother who had described the discipline as “abusive.” Joshua was tired of talking about father’s
physical abuse when father appeared unwilling to accept any
responsibility.
Shortly
thereafter, the social worker spoke with Joshua’s individual therapist. The therapist recommended that Joshua not
have any further contact with father.
When the social worker went to the family home to pick up Joshua for a
conjoint counseling session with father, Joshua said that he would not attend
the counseling session with father that day because he did not want to. The next day, the social worker received an
emergency progress report from Joshua’s therapist. The therapist stated that during the last
several weeks, she had seen a significant decomposition of Joshua’s mental
health. Joshua had extremely low energy,
appeared extremely fatigued, and was losing weight. Joshua’s depressed mood had noticeably
increased, and he had expressed suicidal thoughts and ideation. Joshua told his therapist that the increase
in symptoms and feelings of suicidal ideation were related directly to contact
with father. The therapist was “deeply
concerned” for Joshua’s mental health and physical safety and recommended to
the court that all contact between Joshua and father, including conjoint
counseling sessions and monitored visits, be suspended for some period of
time.
At the end
of August 2011, Joshua left the social worker a message that he would not
attend a conjoint counseling session with father because he would be going to
school for an orientation. When the
social worker contacted mother, mother explained that Joshua would be going to
dinner with friends after the orientation and did not want to attend conjoint
counseling with father. Mother told the
social worker that Joshua’s individual therapist had seen Joshua the day before
and stated that he appeared happy that he had not seen his father during the
past week.
A parenting
class progress report stated that father had attended eight of 20 classes since
July 2011, and that he needed to complete the remaining sessions to satisfy the
program’s requirements. Father’s
participation and cooperation in the class was described as “positive.”
In its
September 6, 2011, report, the Department stated that Joshua did not wish to
live with or visit father due to father’s inappropriate physical discipline of
Joshua. The Department stated its
concern about the amount of conflict between Joshua and father and recommended
that the court suspend visits between Joshua and father. After the Department filed its report, Joshua
had two visits with father in September.
Neither visit went well. Father
attempted to engage with Joshua, but Joshua was not interested. Joshua stated that he did not want to attend
any more visits. During one of the
September visits, Joshua stated that he did not want to be there because he had
too much homework. Father disputed
Joshua’s claim that he had too much homework to visit father. Joshua became upset with father and said that
“a visit should not be an obligation . . .
A visit should be because I want to see you. I don’t want to visit with you.”
Also in
September, Joshua’s individual
therapist prepared another report in which she stated that Joshua had
become more depressed and had discussed suicide. Joshua told his therapist that he thought
suicide was the only way to avoid seeing father. The therapist recommended that the court
suspend all contact between Joshua and father, including conjoint counseling
and monitored visits.
At the end
of September 2011, father and Joshua’s conjoint therapist reported that
although Joshua initially did not want to engage in therapy or speak with
father, he had since decided to engage in therapy and fully participate in the
sessions. During the most recent sessions,
Joshua had expressed his complaints about father. Father had been “very respectful” of Joshua
and “actively listened” to his complaints.
Nevertheless, “substantial issues” remained between father and
Joshua.
At the
beginning of November 2011, father’s and Joshua’s conjoint therapist reported
on the most recent sessions with father and Joshua. According to the therapist, Joshua fully
participated in the sessions and consistently expresses his complaints about
and disappointments in father. Father
treated Joshua respectfully, listened to Joshua’s complaints, and apologized
for his shortcomings. The therapist
reported that “measurable progress” had been made and recommended that conjoint
counseling continue to further resolve the “many issues” that remained between
father and Joshua.
The
Department’s November 8, 2011, report chronicled additional visits between
Joshua and father in September and October.
Joshua did not want to attend the visits and largely did not interact
with father during the visits. At the
end of October, Joshua told a social worker that he wanted to discontinue
conjoint counseling and visits with father.
Joshua participated in conjoint counseling and visits with father
because they were court-ordered. Joshua
said that he did not want to have anything to do with father, that he did not
trust father, and that he would be better able to deal with father when he
turned 18 years old.
Joshua was
doing “very well” in mother’s care. A
social worker found that the risk level of abuse or neglect was “moderate” if
Joshua continued to live with mother and “high” if he were to live with
father. The Department did not identify
any current child safety concerns, and considered Joshua safe under mother’s
care. The Department recommended that
the court terminate jurisdiction over Joshua, and issue a family law order
granting primary physical custody to mother and joint legal custody to mother
and father. The Department further
recommended that father have monitored visits with Joshua and that father and
Joshua continue to participate in conjoint counseling.
According
to the Department’s December 9, 2011, report, Joshua missed a visit with father
in November 2011, because he did not want to see father. Two other visits went well, with father and
Joshua interacting well with each other.
Father and Joshua played games on father’s laptop computer. Father had completed his parenting class,
attending three sessions more than necessary.
A report
from father’s and Joshua’s conjoint therapist stated that father had made
substantial progress in his individual counseling, was better able to
understand Joshua’s complaints about father, had learned new listening skills,
and had demonstrated greater patience in dealing with Joshua. Father told Joshua at a December session that
it was hard for father to live in California and that he was moving to Texas to
live with relatives.
At a
hearing on December 9, 2011, father’s counsel informed the juvenile court that
father’s move to Texas was temporary. To
facilitate continued contact between father and Joshua, the juvenile court gave
the Department discretion to allow father to have unmonitored telephone calls,
texts, emails, and any other computer communication with Joshua. The next day, a social worker met with Joshua
concerning communication with father.
Joshua stated that he did not want to communicate with father at
all. At most, Joshua would accept
letters from father sent by mail.
In January
2012, Joshua gave a social worker a letter he had written to the court. The letter addressed the reasons Joshua did
not want to see father or have contact with him. Joshua stated that father had physically,
verbally, and mentally abused him in the past, and continued to “partially”
abuse him by using almost anything he said to father against him. Joshua also did not trust father because
father had accused him of stealing money from father.
In its
January 26, 2012, report, the Department stated its position that the case was
no longer a “safety” case as Joshua was doing “very well” in mother’s care and
Joshua continued to not want to visit or participate in conjoint counseling
with father. The Department recommended
the case be sent to Family Law Court because there were no safety issues with
the family and the only service that the Department was providing was
transporting Joshua to visits with father.
The Department again recommended that mother have primary physical
custody, that mother and father have joint legal custody, that father have
monitored visits with Joshua, and that father and Joshua participate in
conjoint counseling.
Near the
end of January 2012, Joshua’s individual therapist stated that Joshua had shown
great progress and appeared more relaxed and jovial during sessions. According to the therapist, Joshua felt less
pressure and stress recently due to the suspension of his visits with
father. Based on Joshua’s “significant
improvement,” Joshua’s therapy schedule was modified from weekly to
bi-weekly.
On January
26, 2012, father filed a section 388 petition seeking to have the juvenile
court grant him unmonitored visits with Joshua.
The juvenile court denied father’s petition. The juvenile court found that there was
insufficient evidence that unmonitored visits with father were in Joshua’s best
interest. Rather, the juvenile court
found, such visits were contrary to Joshua’s best interest. The juvenile court noted that Joshua’s
well-being had significantly improved after he stopped having contact with
father through conjoint counseling and visits.
The juvenile court then terminated its jurisdiction over Joshua and
issued a family law order pursuant to which it
granted mother sole legal and physical custody of
Joshua. The family law order provided
that father was permitted to have monitored correspondence with Joshua. If Joshua was in individual counseling, he
could have monitored visits with father in Joshua’s therapist’s office.
DISCUSSION
I. Termination of Jurisdiction and
Custody Orders
Father
contends that the juvenile court abused its discretion when it terminated its
jurisdiction over Joshua and awarded mother sole physical and legal custody of
Joshua. Instead, father argues, the
juvenile court should have retained jurisdiction because the “difficult relationship”
between father and Joshua “has the potential to be addressed given additional
time in individual and conjoint counseling.”
The juvenile court acted within its discretion.
of Review
We review a
juvenile court’s termination of dependency jurisdiction pursuant to section 364
and its decision to issue a custody (or “exit”
order pursuant to section 362.4for an abuse of discretion. (
Cal.App.4th 285, 300.) A juvenile
court’s ruling is an abuse of discretion when it is arbitrary, capricious, or
patently absurd. (Ibid.)
of Relevant Principles
Section
364, subdivision (c) provides, “After hearing any evidence presented by the
social worker, the parent, the guardian, or the child, the court shall
determine whether continued supervision is necessary. The court shall terminate its jurisdiction
unless the social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which would justify
initial assumption of jurisdiction under Section 300, or that those conditions
are likely to exist if supervision is withdrawn. Failure of the parent or guardian to
participate regularly in any court ordered treatment program shall constitute
prima facie evidence that the conditions which justified initial assumption of
jurisdiction still exist and that continued supervision is necessary.”
This matter
came before the juvenile court pursuant to section 300 due to father’s
excessive and inappropriate physical discipline of Joshua. In its January 26, 2012, report, the
Department stated its position that the case was no longer a “safety” case as
Joshua was doing “very well” in mother’s care.
As of early December 2011, father had completed his parenting course,
completing more than the required number of classes. Because there were no safety issues with the
family and the only service it was providing was transporting Joshua to visits
with father, the Department recommended that the juvenile court terminate
jurisdiction and send the case to Family Law Court.
Father
contends that the juvenile court should have retained jurisdiction because
mother had attempted to interfere with his relationship with Joshua and there
remained the possibility that his “difficult relationship” with Joshua could
have been “addressed” with additional counseling. Under section 364, subdivision (c), however,
the juvenile court was required to terminate jurisdiction if it determined that
the conditions that initially justified section 300 jurisdiction were no longer
present or likely to be present without supervision. The juvenile court did not abuse its
discretion in accepting the Department’s position that Joshua was no longer at
risk of excessive, inappropriate physical discipline by father, and by
following the mandate in section 364, subdivision (c) to terminate
jurisdiction. (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 300.)
Father contends that the juvenile
court abused its discretion in awarding mother sole physical and legal custody
of Joshua because there were no safety issues in the case and he and Joshua
“were working in conjoint therapy and visitation toward a resolution of a
difficult time in their relationship and a positive future.” The juvenile court’s award of sole physical
and legal custody of Joshua to mother was not arbitrary, capricious, or
patently absurd. (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p.
300.) As for sole physical custody,
Joshua was doing “very well” in mother’s care.
Joshua was happier and more relaxed, and felt less pressure and stress
when he did not spend time with father.
Contrary to father’s suggestion, Joshua did not willingly participate in
conjoint counseling or visit father. As
for sole legal custody, the juvenile court apparently awarded such custody
because father had moved to Texas, and father and mother had mutual restraining
orders making father’s participation in emergency and non-emergency decisions
impractical. Father does not explain how
the lack of safety issues or the participation in conjoint counseling or visits
concerns the award of sole legal custody.
II. Visitation and Conjoint Counseling
Father
contends that the juvenile court abused its discretion when it failed to order
mandatory monitored visitation and conjoint counseling as part of its exit
orders.[3] The juvenile court did not err.
of Review
A juvenile
court’s order concerning visitation is reviewed for an abuse of
discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
of Relevant Principles
“When a
juvenile court terminates its jurisdiction over a dependent child, it is
empowered to make ‘exit orders’ regarding custody and visitation. (§§ 364, subd. (c), 362.4; In re Kenneth
S., Jr. (2008) 169 Cal.App.4th 1353, 1358 [87 Cal.Rptr.3d 715].) Such
orders become part of any family court proceeding concerning the same child and
will remain in effect until they are terminated or modified by the family
court. (In re Roger S. (1992) 4 Cal.App.4th 25, 30 [5 Cal.Rptr.2d 208] (Roger
S.).)” (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1124.) “[I]n making exit orders, the juvenile court
must look at the best interests of the child.”
(In re John W. (1996) 41
Cal.App.4th 961, 973.)
“Absent a
showing of detriment caused by visitation, ordinarily it is improper to suspend
or halt visits even after the end of the reunification period. [Citations.]
Visitation may be seen as an element critical to promotion of the
parents’ interest in the care and management of their children, even if actual
physical custody is not the outcome.
[Citation.]” (In re Luke L.
(1996) 44 Cal.App.4th 670, 679.)
However, “a parent’s liberty interest in the care, custody and
companionship of children cannot be maintained at the expense of their
well-being. [Citation.] While visitation is a key element of
reunification, the court must focus on the best interests of the children ‘and
on the elimination of conditions which led to the juvenile court’s finding that
the child has suffered, or is at risk of suffering, harm specified in section
300.’ [Citation.] This includes the ‘possibility of adverse
psychological consequences of an unwanted visit between [parent] and
child.’ [Citation.]” (In re Julie M. (1999) 69 Cal.App.4th 41,
50.)
If a
juvenile court “grants visitation,
‘it must also ensure that at least some visitation at a minimum level
determined by the court itself, will in fact occur.’ [Citation.]”
(In re Hunter S. (2006) 142
Cal.App.4th 1497, 1505.) “[B]y failing to
mandate any minimum number of monitored visits [within a stated period of
time], the court’s abstract recognition of [a parent’s] right to visitation is
illusory,
transforming the children’s ability to refuse ‘a visit’ into the practical
ability to forestall any visits at all.”
(In re S.H. (2003) 111
Cal.App.4th 310, 319; see also In re
Hunter S., supra, 142 Cal.App.4th at p. 1505 [a child may not be allowed to
control whether visitation occurs]; In re Chantal S. (1996) 13 Cal.4th
196, 213 [a juvenile court abuses its discretion when it delegates to a third
party the complete authority to decide whether visitation takes place].)
In issuing
exit orders, the juvenile court ruled, “In the event—let me say also, Joshua,
so long as he is in individual counseling, may also have monitored visits with
his father in a therapeutic setting with Joshua’s therapist only. [¶]
Should those occur, Joshua and his father may have monitored visits
immediately preceding the conjoint session.
Or I should say immediately preceding the therapeutic—the monitored
visit in the therapeutic setting.”
Mother’s counsel subsequently prepared a family law order concerning
custody and visitation that was reviewed by the parties and entered by the
juvenile court. With respect to visitation,
the family law order stated, “No face to face visits with minor, JOSHUA . . .
and father . . . unless monitored by private agency. Monitored visits may occur without conjoint
counseling. [¶] Any conjoint counseling between minor, JOSHUA
. . . and father . . . shall be with JOSHUA’S therapist. If conjoint counseling occurs then monitored
visits shall take place just prior to conjoint counseling sessions.”
The
juvenile court’s order with respect to monitored visitation is unclear. Because the order appears to grant
visitation, but does not provide for the terms of any visitation, other than
such visitation be monitored, any such grant of visitation is illusory because
it is subject to the cooperation of Joshua and mother. (In re Hunter S., supra, 142
Cal.App.4th at p. 1505; In re S.H.,
supra, 111 Cal.App.4th at p. 319.)
Accordingly, the case is remanded so that the juvenile court can
exercise its discretion in formulating a clear order specifying the amount and
terms of visitation to which father is entitled.
DISPOSITION
We reverse
the juvenile court’s visitation order and remand for further proceedings
consistent with this opinion. We
otherwise affirm the juvenile court’s termination of jurisdiction and its other
exit orders.
NOT TO BE
PUBLISHED IN THE OFFICIAL RESULTS.
MOSK,
J.
I concur:
KRIEGLER,
J.
>
I concur in
my colleagues’ analysis concerning the propriety of the termination and custody
orders. I only disagree about the need
to redraft the written custody order. The
reporter’s transcript reveals the father’s counsel had reviewed the written
custody order. The clerk’s transcript
indicates the issue of whether to sign the order proceeded as a submitted
matter. Thus, any objection to the
written custody order has been forfeited.
(In re Ana C. (2012) 204
Cal.App.4th 1317, 1326; In re Richard K.
(1994) 25 Cal.App.4th 580, 588-590.)
Moreover,
the father’s counsel never asserted there was any illusory effect of the
written order. No objection was
interposed because there had been an improper delegation of the right to
control the pace and duration of visitation.
The father’s counsel never even bothered to appear at the hearing where
the written custody order was signed.
There is no evidence to support the father’s assertion that any improper
delegation of visitation will occur.
Thus, I would affirm the orders under review in their entirety.
TURNER,
P.J.
[1] All statutory citations are to the Welfare and Institutions
Code.
[2] The
Los Angeles County Department of Children and Family Services (Department)
takes no position with respect to the visitation issue.
