Filed 2/27/18 In re J.P. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re J.P., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

J.P.,

Defendant and Appellant;

L.P.,

Intervener and Respondent.
D072990


(Super. Ct. No. J519438)

APPEAL from an order of the Superior Court of San Diego County, Kimberlee Lagotta, Judge. Affirmed.

Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, Guy B. Pittman, Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Judith Klein for Intervener and Respondent.
Two-month-old J.P.'s foot was severely burned during a bath while in her father's (Father) care and follow-up examinations revealed the presence of healing fractures to her ribs and legs. The juvenile court declared J.P. a dependent, placed her in the care of her maternal grandmother, ordered reunification services, and ordered Father's visits be supervised.
At the six-month review hearing, the court determined J.P. was safe with her mother (Mother) and terminated its jurisdiction. In the associated "exit" order, the court awarded sole physical custody to Mother and ordered that Father have supervised visitation, a minimum of twice per week for a minimum of two hours each visit. In addition, the court awarded joint legal custody to both parents, but placed restrictions on Father's access to certain information regarding J.P.'s daycare and medical appointments.
Father appeals and contends the court abused its discretion in the custody orders by refusing to allow him to have short unsupervised visits with J.P. and restricting his access to daycare and medical appointment information. We conclude the juvenile court did not abuse its discretion in issuing this order and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
When J.P. was two weeks old, Mother and Father had an argument over a bottle warmer. Mother called the police and reported that Father had hit her. When the police arrived both parents denied any physical altercation and instead said they had bumped into each other.
Two months later, Mother left J.P. in Father's care for a few hours and returned to find a severe burn on J.P.'s foot. Father said that he had attempted to rinse J.P. in the bath with a removable shower head and did not realize how hot the water was until J.P. screamed. Mother saw that the foot was bright red and that layers of skin had already fallen off. She took J.P. to the hospital. The doctor who examined J.P. at the emergency room reported the injury as "classic" for abuse as it looked like the burn was the result of the child's foot being dipped or submerged in hot water. The doctor transferred J.P. to a burn center for further treatment and evaluation.
The San Diego Police Department conducted a reenactment of the burn, as described by Father, and indicated that the water temperature in the shower Father was using reached a maximum of 121 degrees. J.P.'s treating physician, Dr. Suresh, reported that 121 degrees was not very hot and noted the temperature would have to be 140 degrees for six seconds or 130 degrees for 30 seconds to cause a second or third degree burn on an adult. She also stated it would take approximately one to three minutes for a child to sustain such a burn at 121 degrees. Dr. Suresh also expressed concern about Father's explanation of how the burn occurred as the burn pattern indicated it was caused by immersion in hot water, and not by spray, as the burn was in a specific area and there was no spray pattern.
Another physician conducted a skeletal survey. It revealed J.P. had multiple healing fractures, including fractures to several ribs and both tibias. The parents stated they were not aware of how the fractures occurred, but Mother later reported that one of the rib fractures may have occurred during an incident where she saw Father nearly drop J.P.
In light of these findings, the Riverside County Department of Public Social Services (the Department) filed a juvenile dependency petition. The Department asserted J.P. was subject to the juvenile court's jurisdiction in accordance with Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (e). In support, the Department alleged J.P. had suffered serious physical harm inflicted by Father resulting in a 4.5 percent burn on her foot and ankle, that she sustained patterned bilateral tibial fractures and a rib fracture while in the care of her parents, that the parents had engaged in acts of domestic violence, and that J.P. was therefore at risk of suffering additional harm.
At the detention hearing, the juvenile court found removal was necessary and placed J.P. with the maternal grandmother. The court granted liberal supervised visitation for both parents, and approved the maternal grandmother as a supervisor for those visits. In addition, the court granted the social worker discretion to lift the supervision for Mother's visits and, with concurrence from minor's counsel, to begin a 60-day trial visit with Mother.
Dr. Suresh conducted a follow-up bone study and reported J.P. had healing fractures to her fourth, fifth and sixth ribs on the right side, as well as her sixth rib on the left side, healed corner fractures to her left femur and right tibia, and a healing fracture to her left tibia. She indicated the rib fractures were consistent with being squeezed and the leg fractures were consistent with forceful pulling of the legs or lifting the child by her extremities. Further, the state of healing indicated these fractures were not caused by the birthing process and all were suggestive of child abuse.
At the jurisdictional hearing in December 2016, the parents submitted to the Department's allegations, with some modifications. The court made true findings as to jurisdiction by clear and convincing evidence and declared J.P. a dependent of the juvenile court. The court indicated it had read the case plan and found it to be appropriate and ordered the Department to provide reunification services to Mother and Father as set forth therein. The plan required Mother to comply with all court orders, submit to a psychological evaluation, attend counseling and mental health services as recommended by her therapist, and attend educational services related to appropriate child care and child abuse prevention. It required the same from Father, and also required that he attend an anger management program. Finally, both parents were to demonstrate their ability to properly care for J.P., as well as multiple ways to calm themselves when feeling overwhelmed or upset.
The court granted Mother short unsupervised visits, on the condition that they not occur at the same time as Father's, and stated the Department could place J.P. in Mother's care once she successfully completed certain components of her case plan. It ordered that Father's visits were to remain supervised, but that the social worker could increase the time of his visits and allow visits to occur in the home so long as Mother was not present.
The court reiterated that Mother and Father should not have visits at the same time, and that Mother was not to supervise Father's visits. Despite this admonition, the Department later received and substantiated an additional report indicating that Father had appeared at the house while Mother was home and a domestic dispute occurred while Mother was holding J.P. After the incident, Mother filed for a divorce from Father and remained compliant with all aspects of her case plan.
The following month, the maternal grandmother informed the Department she would no longer supervise Father's visits because he spent much of the time angry and complaining about Mother and the Department. The Department approved several additional individuals but each declined to supervise further visits within a month. Thereafter, either the social worker or a social service assistant (SSA) supervised Father's visits.
In a status review report submitted to the court a couple of months later, the social worker expressed a number of concerns with respect to the visits and Father's conduct. Father continually attempted to intimidate the social worker and threatened to take legal action against her for allegedly withholding visits and keeping him from his child, and sent dishonest, threatening and intimidating messages to Mother regarding the social worker and the visits. In one instance, J.P. needed to go to the doctor during one of Father's scheduled visits. After the SSA informed Father the visit was cancelled due to the appointment, Father called Mother and told her the SSA had agreed to supervise the visit at the appointment. A few days later, Father told Mother the social worker informed him that Mother had accused him of making J.P. sick by allowing her to ingest a substance from a leaf or tree she touched during a visit. The social worker indicated these statements were not true.
In March 2017, Father filed a petition pursuant to section 388 and asked the court to revise its earlier order to allow him to have short, unsupervised visits with J.P. The Department opposed the request. The court found Father had made a prima facie showing and ordered an evidentiary hearing. During the hearing, Father sent the social worker an e-mail stating that he took "full responsibility for the unintentional and accident [sic] of burning my daughter's foot." At the conclusion of the hearing, the court found that Father's explanation of how the burn occurred was inconsistent with the burn pattern and Dr. Suresh's opinion. The court concluded Father had not made substantial progress in his case plan and had not yet fully accepted responsibility for the burn incident, and denied the petition. Shortly thereafter, Father requested a meeting with the social worker and presented an entirely new explanation for how the burn occurred, stating, "[t]hat's my viable explanation of how this could have happened."
By the six-month review hearing, Mother had completed the requirements set forth in the reunification plan, and the Department had placed J.P. in her care. Father continued to have supervised visitation, and the social worker and SSA reported that the visits were generally positive but that they still had concerns regarding Father's ability to care for J.P. Father often walked away from J.P. while she was trying to stand and at least once walked away while she was in the highchair with the tray removed. He was overwhelmed and frustrated with J.P.'s constant movement and activity, appeared nervous and often frustrated with diaper changes, and got upset when J.P. made a mess and threw food on the floor during lunch.
The Department continued to express concerns regarding Father's ongoing propensity towards aggression, intimidation, and dishonesty, and his apparent refusal to take responsibility for the previous injuries he caused to J.P. Although Father was complying with his case plan, the Department opined he did not appear to be benefitting from services and supervision was still necessary to ensure J.P.'s safety. The Department recommended the juvenile court terminate jurisdiction, grant sole physical custody to Mother and joint legal custody to Mother and Father, and order that Father's visits remain supervised.
At trial, Father asserted that he had accepted responsibility for the burn and denied that he had changed his story as to how it occurred. He also denied that he caused the fractures identified on J.P.'s scans, but admitted that he sent Mother a text stating if he had broken the child's ribs, it would have been an accident. Regarding his previous relationships, he admitted a four-year-old child fell down a set of stairs and blacked out while in his care in 2010, and the child's mother had accused him of slamming her against a wall, but denied there had been any domestic violence. He also admitted a court had issued a protective order against him in at least one other relationship. Finally, he admitted he paid a fine for animal neglect sometime around 2008.
Mother testified Father had kicked and severely injured their dog when they lived together, and submitted photographic evidence of the injuries. Mother also stated that earlier in their relationship, before J.P. was born, Father had agreed to attend sex addiction therapy after she discovered pornography depicting adult youth fantasies on his computer. Concerning Father's most recent visits with J.P., Mother stated J.P. had returned from one such visit with blisters on her feet because Father had placed her on hot sand without shoes.
The juvenile court found Father lacked credibility and lacked insight into the case as he continued to minimize or deny his conduct, even when confronted with the compelling evidence of abuse. It found Father had a history of domestic violence, violence towards animals and questionable care of children in his care, and continued to express anger and volatile behavior throughout the case despite ongoing therapy. The court concluded that although Father engaged in services, he had failed to make substantial progress with respect to the goals set forth in his case plan, and that it would be in J.P.'s best interests for Father's visits to remain supervised. Regarding Mother, the court found she had made substantial progress in her case plan and that J.P. was safe in her care. The court adopted the recommendations of the Department, terminated jurisdiction and issued custody and visitation orders, to be forwarded to the appropriate family court.
In the associated written custody order, the court granted sole physical custody to Mother, and specified Father was to have a minimum of two supervised visits per week, each lasting a minimum of two hours. In addition, the court granted Mother and Father joint legal custody, but ordered that Mother and J.P.'s residence, the name and address of J.P.'s daycare, and the dates and times of J.P.'s future medical appointments remain confidential.
Father appeals.
DISCUSSION
I. The Juvenile Court's Authority to Issue Custody and Visitation Orders
When a juvenile court terminates its jurisdiction over a minor, it may issue an order addressing the custody of and visitation with the child, in accordance with section 362.4, subdivision (a). The juvenile court must make a finding that no substantial risk of harm exists to the child before doing so, but the court may make that determination in view of any restrictions set forth in its final custody and visitation orders. (In re Chantel S. (1996) 13 Cal.4th 196, 204 [juvenile court's determination regarding jurisdiction is premised on custody and visitation orders]; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712-713 [same].) Once issued, the custody and visitation orders of the juvenile court become part of any associated family court proceeding and remain in effect until they are terminated or modified by the family court. (§ 362.4, subd. (b); In re Roger S. (1992) 4 Cal.App.4th 25, 30.)
However, in contrast to the family court—which decides custody disputes between two presumptively fit parents—the juvenile court operates in the context of dependency, and thus has " 'a special responsibility to the child as parens partriae and . . . must look to the totality of a child's circumstances when making decisions . . . .' " (In re J.T. (2014) 228 Cal.App.4th 953, 963-964; In re Chantel S. (1996) 13 Cal.4th 196, 200-201.) That same responsibility applies when the court issues final custody and visitation orders, and the court therefore has broad discretion to put restrictions in place to protect the child. (In re J.T., at pp. 963-964; In re Chantel S., at pp. 200-201.) While parents have a fundamental right to the companionship, care, and custody of their children, the statutory procedures of the juvenile court provide due process and safeguard that right. (See In re Valerie A. (2007) 152 Cal.App.4th 987, 1006.)
We review custody orders issued pursuant to section 362.4 for an abuse of the juvenile court's discretion, and will not disturb the orders unless they are arbitrary, capricious, or patently absurd. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300; see In re M.R. (2017) 7 Cal.App.5th 886, 902.) So long as any rational trier of fact could conclude that the trial court order advanced the best interests of the child, the juvenile court has not abused its discretion. (In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1337.)
II. Analysis
Father asserts the juvenile court abused its discretion in its final custody order by restricting him to supervised visitation twice per week for two hours and in restricting his access to information regarding J.P.'s daycare and medical information. He argues there was no evidence he was unable to parent J.P. in short unsupervised visits and that it was in J.P.'s best interests to have more visits with him. Further, he contends the information restrictions violate the court's grant of joint legal custody and his right to jointly parent his child by sharing in the decisionmaking process regarding her health, education, and welfare.
A. Requirement that Father's Visitation Remain Supervised
We first address the court's order regarding supervised visitation. Contrary to Father's assertions, substantial evidence supports the order and it was not an abuse of discretion.
Father had a history of aggressive and abusive behavior toward children and animals, had caused a severe burn to J.P. at a very young age during a relatively short period of being left alone with her, and continued to express anger and volatile behavior throughout the case. Father had not taken full responsibility for the burn and, instead, continued to refer to it as an accident and offered changing accounts of what had occurred. Father also claimed he did not know how J.P. sustained multiple broken bones, but the juvenile court found that Father lacked credibility and that there was reason to believe Father was also responsible for those injuries. Moreover, J.P. is still a vulnerable child of tender years, and the social worker reported that Father continued to have trouble meeting the child's needs during his supervised visits, quickly became frustrated by normal toddler behaviors, and allowed J.P. to injure herself on at least one occasion. Additionally, Father displayed aggressive and deceitful behaviors toward the social worker and Mother. These facts support the juvenile court's conclusion that it was in J.P.'s best interests that visitation with Father remain supervised.
Father asserts he was following his case plan, and that his therapists reported he was making progress. The court acknowledged Father had complied with a number of the provisions of his case plan, but based on ample evidence concluded Father had not made sufficient progress towards the objectives set forth therein. The court correctly focused on whether Father had made sufficient progress toward the goals of reducing his anger and effectively parenting J.P., and properly noted Father's compliance in terms of attending classes and therapy was not sufficient, on its own, to allay the concerns that led the court to remove J.P. from his care in the first instance. (See, e.g., In re Dustin R. (1997) 54 Cal.App.4th 1131 [compliance with case plan is not determinative as reasons for removing child must be ameliorated].)
Father contends there were no issues with his most recent visits with J.P., and argues the juvenile court placed too much emphasis on his past mistakes. However, past actions are a strong indicator of potential future actions and, as discussed, the court determined Father has not progressed enough in his parenting or anger management skills to ensure J.P. was safe in his care without supervision. (See In re Laura F. (1983) 33 Cal.3d 826, 833 ["a measure of a parent's future potential is undoubtedly revealed in the parent's past behavior with the child"].) The fact that Father had recently had some successful supervised visits does not negate the significant evidence before the court indicating he continued to pose a risk to J.P.
Father asserts he had bonded with J.P., J.P. cried and reached for him when he left visits, and it was therefore in J.P.'s best interests to spend more than four hours per week with him. (See In re John W. (1996) 41 Cal.App.4th 961, 965 [juvenile court exit orders must be in best interests of the child].) In making this argument, Father fails to recognize that the court ordered that he have a minimum of two hours of visitation and a minimum of two times per week. The court did not limit Father's visitation to just four hours per week, and certainly did not preclude Father from having a relationship with the child, but did give appropriate weight to its obligation to protect J.P. from the significant risk that she could be harmed again if left in Father's care unsupervised. Thus, contrary to Father's assertions, the juvenile court's orders are in the best interests of J.P.
Father argues he will not be permitted to have more than the minimum number of hours of visitation set forth in the order, but that is speculation. Further, if Mother does refuse to allow additional visitation that Father believes is warranted, he may seek recourse in the family court. (See, e.g., In re Jennifer R., supra, 14 Cal.App.4th at p. 714.) Father also asserts the limitation on his visitation rights is prejudicial because it will remain in place unless the family court makes such a modification, and will influence the family court's analysis going forward. As noted, the record is clear as to the reasons the juvenile court determined the restriction was necessary, substantial evidence supports the order, and it was not an abuse of the juvenile court's discretion. Should the circumstances change—for example, as J.P. gets older and if Father continues to progress in his therapy—Father has an avenue available to seek a modification in the family court. (See, e.g., In re Jennifer R., at p. 714.)
B. Restriction on Daycare and Medical Appointment Information
In addition to requiring that Father's visits with J.P. remain supervised, the juvenile court also ordered that the name and address of J.P.'s daycare and the dates and times of her medical appointments remain confidential from Father. Father asserts these restrictions are inconsistent with the court's grant of joint custody and improperly limit his right to participate in decisions regarding J.P.'s health and education.
As with the visitation order, the record fully supports the juvenile court's restriction in this regard. Father's history of violent and abusive behavior, lack of impulse control, aggressive behavior during the dependency proceeding, and a lack of progress in addressing these issues supports the need for increased supervision of his interactions with J.P., a vulnerable child of tender years. Moreover, Father has attempted to evade the supervision requirement in the past, and specifically lied to Mother and the SSA to gain unauthorized access to J.P. during a medical appointment. Because it was reasonable for the court to infer this behavior would continue, an order restricting Father's knowledge of the location of J.P.'s daycare as well as the dates and times of J.P.'s future medical appointments was in J.P.'s best interests and was not an abuse of discretion. Further, as the court followed the appropriate procedures and found that the orders were necessary to protect J.P., they do not violate Father's fundamental due process rights. (See In re Valerie A., supra, 152 Cal.App.4th at p. 1006; see also In re Marilyn H. (1993) 5 Cal.4th 295, 306 [parental interests weighed against child's compelling right to live free from abuse and neglect].)
Father argues the restrictions are inconsistent with the definition of joint custody set forth in Family Code section 3003, which states, "both parents shall share the right and the responsibility to make decisions relating to health, education, and welfare of a child." Because the juvenile and family courts serve distinct and separate purposes though, the provisions of the Family Code typically do not apply in dependency proceedings. (In re J.T., supra, 228 Cal.App.4th at p. 961.) Regardless, the restrictions do not preclude Father from taking an active role in making decisions regarding J.P.'s health, education, or welfare. Despite the restrictions, Father may still receive information and updates regarding J.P.'s health and education, and may speak to her caregivers, preschool, and medical providers over the phone or through written correspondence.
Father asserts he will not be able to weigh in on urgent medical decisions if he is not permitted to attend medical appointments and that he would not be able to pick J.P. up from daycare in an emergency if he does not know where it is. However, Father could certainly discuss any such situation with Mother and/or any medical professionals or care providers over the phone. Further, as Mother has sole physical custody of J.P., Father is not entitled to know J.P.'s whereabouts at all times such that, even without these restrictions, there would be a significant chance that he would not know where exactly she was in the case of an emergency even if he did know the address of her daycare.
Beyond the alleged inconsistency with the Family Code definition of joint custody, Father does not present any authority indicating a grant of joint custody limits the juvenile court's authority to order restrictions of this nature in any way. To the contrary, juvenile courts have the authority to restrict educational and medical rights, and often do so in a limited manner, to avoid removing the parent's legal rights altogether. (See, e.g., § 361, subd. (a)(1); In re D.C. (2015) 243 Cal.App.4th 41, 58-59; see also Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 62 [restriction on mother's right to make medical decisions appropriate where in the best interests of the child].) Here, the juvenile court determined the restrictions were necessary to ensure J.P.'s safety and, regardless, the restrictions do not interfere with Father's right to participate in decisionmaking.
The juvenile court did not abuse its discretion in requiring that Father's visits with J.P. remain supervised, or in restricting Father's access to information concerning J.P.'s daycare and medical appointments.
DISPOSITION
The order is affirmed.



HALLER, J.

WE CONCUR:




BENKE, Acting P. J.




AARON, J.