In re Steven P.

Filed 4/2/07 In re Steven P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Julie Koons-Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.

Monica O. (mother) is the mother of the minor Steven P. In this appeal, mother argues that the juvenile courts visitation order, made at the jurisdiction and disposition hearing, impermissibly delegated to the Department of Public Social Services (DPSS) and to Steven unlimited discretion to determine whether visits would take place at all. After reviewing the particular facts of this case in light of the relevant legal authorities, we conclude that the order itself grants mother the right to visitation, and that DPSSs role is limited to arranging visits after consulting with Steven as to the time, place and manner of the visits. Thus, we uphold the visitation order as written.

Statement of Facts and Procedure

Steven began living with his former neighbors, the W.s, in June 2005. The W.s pursued guardianship over Steven when it became apparent that mother would not become able to provide him with a steady home because of her mental health issues, and because she became disruptive to Steven at home and at school, and threatened to cut the W.s. In the course of that action, DPSS began to investigate the W.s as a suitable placement for Steven and to investigate mothers mental state and living situation. DPSSs investigation revealed that mother had previously lost custody of her five-year-old nephew or grandchild in 2004 because of caretaker incapacity and neglect, and had four prior referrals for those issues.

Section 300 Petition and Detention Hearing

On March 14, 2006, DPSS filed a petition pursuant to Welfare and Institutions Code section 300^[1]alleging that mothers mental illness, including paranoia and delusional thinking, along with her transient lifestyle, made her incapable of caring for Steven, who was then 16 years old. ( 300, subd. (b).) The petition also alleged that Steven was at risk of serious emotional damage because he just cant deal with his mother because of her mental illness, including paranoid delusions about people being after them or out to get them. ( 300, subd. (c).)

The detention hearing was held on March 15 and 16, 2006. Steven told the court that he wanted to continue living with the W.s. With my mom like I was constantly worrying about mood swings, and it was always a fight. There was always yelling, always stress, and I dont want to deal with that anymore. Im tired of going from place to place. . . . I know where Im sleeping for the next day. I dont have to worry about whats going to happen tonight or the day after. . . . I was in a bad situation. [] . . . Ive already tried to stay with my uncle, and he kicked me out of the house basically because he didnt want to have to deal with my mom . . . . The past year Ive been from place to place moving around a lot. I am really just tired of that. I dont want to have to go through it anymore. The juvenile court ordered Steven detained with the W.s.

The court referred the parties to mediation to work out visitation arrangements. However, the mediator was unable to forge a visitation agreement because she was unable to contact mother and Steven stated he was not interested in developing a visitation schedule with his mother at this time.

Pretrial Hearings

At a hearing held on April 6, 2006, the juvenile court continued the jurisdiction and disposition hearing and ordered mother to undergo two psychological evaluations. In the report prepared for that hearing, the social worker reported that Steven said he wanted his mother to get counseling on her own before he would participate in joint sessions with her. Steven also stated that he did not want to attend the next court hearing because he did not want to see his mother. Upon being questioned as to whether he wanted visits with his mother, Steven stated, maybe once every two weeks or something.

At a pretrial hearing held on May 11, 2006, the juvenile court ordered that mother contact Steven only through the social worker and that any direct contact be with Stevens consent. This was after Stevens counsel reported that mother has been contacting the placement and stressing the minor out, and that the foster parents were considering getting a restraining order because they believed mother would continue to call despite the courts instructions.

Jurisdiction and Disposition Hearing and Report

In an addendum report dated June 7, 2006, the social worker reported that Stevens father (father)^[2]had telephoned her after receiving a forwarded letter about the dependency. Father stated that he would not come to the jurisdiction hearing because he was in fear of mother and did not want any contact with her. Father reported that mother refused to give him a divorce after their separation five years ago, but that he left because everything makes her crazy and she is more crazy when she is high. Father stated that mother had threatened to kill him many times and actually threatened him with a gun three or four times, including an incident in which she went to his workplace and held a gun to his head to demand part of his paycheck. Father also stated that when he would visit with Steven after the separation, mother would yell at him and, on at least one occasion, threatened him with a gun, and another time with an ice pick. Father provided a mailing address so visits with minor could be arranged, but insisted the social worker keep the address confidential because mother had come by his previous address at all hours, yelling and screaming, demanding that I give her money.

In the June 7, 2006 report, the social worker also reported that Steven told her he does not want mother to call him, but rather prefers that he initiate contact. Mother had been calling Steven on his cellular and home phones to talk about various things of interest to her, but never about visits. For example, once mother called to talk to him about finding keys for a car. Another time she urged him to tell them you want to stay with me, and told him the foster parents are a cult. Steven stated that he tries to talk to his mother for a short time before she starts going off. Steven asked the social worker to tell mother and the court that he wants to be the one to initiate any contact. He commented that his skin had recently stopped breaking out and he was sleeping better because he was not all stressed out worrying about his mother.

At the jurisdiction and disposition hearing held on June 7, 2006, the court found the allegations in the section 300 petition to be true, declared Steven a dependent and ordered reunification services for mother. The court ordered mother not to contact Steven or the foster parents and ordered that supervised visitation [s]hall be as directed by [DPSS] and with consent of the child. The court also ordered mother to remain in the courtroom so DPSS could prepare and serve her with a temporary restraining order. This appeal followed.

On June 27, 2006, the court issued a permanent restraining order against mother to protect Steven, with an exception for visitation.

Discussion

Mother argues that the juvenile court, in making its June 7, 2006 order that supervised visitation [s]hall be as directed by [DPSS] and with consent of the child, impermissibly delegated to DPSS and to Steven unlimited discretion to determine whether visitation would occur at all.

We note that counsel for Steven filed a letter brief supporting the juvenile courts visitation order.

The juvenile court has broad discretion in fashioning visitation orders. (See, e.g., In re Julie M. (1999) 69 Cal.App.4th 41, 48.) The reviewing court must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial courts ruling. [Citation.] 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.] We are required to uphold the ruling if it is correct on any basis, regardless of whether it is the ground relied upon by the trial judge. [Citation.] [Citation.] The trial court is accorded wide discretion and its determination will not be disturbed on appeal absent a manifest showing of abuse. [Citation.] (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

A court may not delegate its discretion to determine whether any visitation will occur, but it may delegate decisions such as the time, place and manner of visitation. (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164, superseded by statute on another ground as stated in In re S.B. (2004) 32 Cal.4th 1287, 1294-1295.) As stated in [In re Jennifer G . (1990) 221 Cal.App.3d 752], the ministerial tasks of overseeing visitation as defined by the juvenile court can, and should, be delegated to the entity best able to perform them, here the department of social services. [Citation.] Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function. [Citation.] (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) [T]he frequency and length of visits are simply aspects of the time, place and manner of visitation. Accordingly, the juvenile court may grant to the county agency the discretion to determine the frequency and length of visitation ordered by the court. (Id. at pp. 1376-1377.)

For example, in the leading case of In re Danielle W. (1989) 207 Cal.App.3d 1227, the juvenile court ordered all visitation to be at the social workers discretion and the childrens discretion. (Id. at p. 1233.) The appellate court found that the order did not delegate all control over visitation, but rather ordered visitation under specific conditions. The appellate court found that the Los Angeles County Department of Childrens Services (the Department) could properly act as an arm of the court in implementing the visitation order: It was within the Departments role as a representative of the state and as an arm of the court, as empowered by the Legislature, to exercise limited discretion in the administration of the juvenile courts visitation order. (Id. at p. 1235.)

The appellate court in In reDanielle W. also rejected the argument that the order violated the separation of powers doctrine and that it was an improper delegation of judicial power. (In re Danielle W., supra, 207 Cal.App.3d at pp. 1235-1237.) There was no improper delegation to the children because they were only allowed to express their views regarding visitation. The order was also interpreted as authorizing the Department to administer the details of visitation: Although the order grants the Department some discretion to determine whether a specific proposed visit would be in the best interests of the child, the dominant factor in the exercise of that discretion is the desire of the child to visit the mother. (Id. at p. 1237.)

As so interpreted, the order in In reDanielle W. was valid because the Departments role was limited and subject to supervision. However, the court noted that a visitation order granting the Department complete and total discretion to determine whether or not visitation occurs would be invalid. . . . The juvenile court must first determine whether or not visitation should occur, as was done here, and then provide the Department with guidelines as to the prerequisites of visitation or any limitations or required circumstances. (In re Danielle W., supra, 207 Cal.App.3d at p. 1237, fn. omitted, original italics.) With regard to due process concerns, the court stated, As administrator of the courts order, the parole officer or [the] Department is subject to the supervision of the juvenile court which provides the parent with the required due process. (Id. at p. 1238.)

Other cases emphasize the distinction between a proper delegation to a social worker to administer a visitation order and an improper delegation to a social worker to determine whether or not visitation occurs. For example, in In re Kristin W. (1990) 222 Cal.App.3d 234, the court did not make any orders regarding visitation and declined to consider the issue. The court held that [t]he absence of an order concerning visitation is akin to an order granting total discretion. (Id. at p. 256.) The case was remanded for reconsideration of the visitation issue.

In In re Moriah T., supra, 23 Cal.App.4th 1367, the appellate court approved an order which ordered regular visitation and delegated to Butte County Child Protective Services the responsibility to arrange for and monitor visitation. The appellate court held that the order did not have to specify the frequency and length of visits. (Id. at pp. 1374-1375.)

In In re Julie M., supra, 69 Cal.App.4th 41, the appellate court invalidated an order which gave the children absolute discretion to consent to, or refuse, visits with their mother. (Id. at pp. 48-49.) The court found the order essentially delegated judicial power to the children -- an abdication of governmental responsibility . . . . (Id. at p. 49.)

In addition, the appellate court in In re Shawna M. (1993) 19 Cal.App.4th 1686 found an improper delegation where the order was for visitation to be arranged through, and approved by, the San Benito County Human Services Agency. (Id. at p. 1688.)

In In re Donnovan J. (1997) 58 Cal.App.4th 1474, improper delegation was found in an order that there be no visitation unless the childrens therapist gave permission. (Id. at p. 1475.) The court held that this order was an improper delegation because it provided no criteria for the therapist to utilize and the private therapist, unlike the social worker, was not an arm of the court. (Id. at pp. 1475-1476.)

In In re S.H. (2003) 111 Cal.App.4th 310, a visitation order was reversed where the court had not specified the length or frequency of visitation and had permitted the children to veto visits. (Id. at pp. 318-319.) As discussed below, the record in the present matter reveals that the parties did not anticipate, and the juvenile court did not intend, that Steven be able to veto visits with mother.

On the other hand, In re Christopher H. (1996) 50 Cal.App.4th 1001 held that a bare bones order for reasonable visits was not an improper delegation. (Id. at pp. 1008-1009.) The court explained, Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine. [Citations.] (Id. at p. 1009.)

Our Supreme Court has approved an order stating, Visitation . . . for father . . . to be facilitated by [Chantals] therapist . . . . (In re Chantal S. (1996) 13 Cal.4th 196, 202.) There, the court concluded, The order gives Chantals therapist no discretion whatsoever. The directive that Chantals therapist facilitate visitation appears designed merely to mandate that Chantals therapist cooperate with the courts order that visitation occur once certain conditions are met. (Id. at p. 213.)

In the present matter, the juvenile court at the June 7, 2006 hearing ordered visitation between mother and Steven to be as directed by [DPSS] and with consent of the child. In addition, the juvenile court issued a written visitation order, form JV-205, which granted mother supervised visitation, to be supervised by DPSS and/or an adult approved of by DPSS and with minors consent. We view this order in the context of the facts of this case. Unlike the minor in In re Hunter S. (2006) 142 Cal.App.4th 1497, to which case mother cites extensively, Steven is not refusing all visitation with mother. Rather, Steven specifically told the social worker to express to the court that he wanted to be the one to initiate contact with his mother, and had in fact previously suggested a frequency of maybe once every two weeks or something. As Stevens counsel argued at the June 7, 2006 hearing, Steven from the get go has always been willing to have contact with his mother, but he just wanted it to be on his terms, because her contact was so frequent, and the things she was saying were so disturbing to him that he needed to take a step back from her and it started to destroy him emotionally. Thus, the record fully supports DPSSs position that Stevens input into visitation was to be limited to the time, place and manner of the visits.

Further, there is also no indication in the record that the juvenile court intended to delegate to DPSS the power to do anything more than supervise and facilitate the visits, to which the court itself determined that mother was entitled. The court never indicated in any of the hearings that it intended to allow DPSS to determine whether mother would receive any visits at all. Neither did DPSS ever request the court to delegate to it this power or suggest that a cessation of visits was necessary or desirable. Further, as set forth above, the juvenile court issued a written visitation order, form JV-205, which granted mother supervised visitation.

As the court of appeal pointed out in In re Danielle W., supra, 207 Cal.App.3d at page 1238, the limited power delegated to DPSS to implement mothers visitation rights, given to her by the juvenile court, is still subject to periodic review by the juvenile court. In other words, should mother believe at some point that DPSS is preventing her from exercising her visitation rights, she can ask the court to order DPSS to carry out its duties, or to order a specific visitation schedule. We also note that, as in In re Danielle W., there is arguably sufficient evidence to support a finding of detriment to Steven from visits with mother, based on the documented effects that contacts with mother have had on Stevens psychological and physical well-being, and the fact that the juvenile court was concerned enough to issue a restraining order against mother. However, rather than order no visitation at all, the court here ordered visitation under specific conditions, including that Steven consent to the frequency and form of the contacts. Finally, there is no indication in this record that either Steven or DPSS has refused to allow mother to exercise the absolute visitation rights granted to her by the court.

Disposition

The order of the juvenile court is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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^[1]All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]Father is not a party to this appeal.