California Cases April 01, 2020: L.A. Cnty. Dep't of Children & Family Servs. v. P.P. (In re A.P.)

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. 18CCJP01447)

APPEAL from an order of the Superior Court of Los Angeles County, Mary E. Kelly, Judge. Reversed and remanded.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

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P.P. (Father) appeals from the juvenile court's order terminating jurisdiction and the exit order governing visitation with his sons, A.P. and Ar.P. He contends that the court abused its discretion by delegating authority to regulate visitation to the children and their therapist. As we explain, we agree and reverse and remand.

A. The Family's Prior Involvement with the Dependency System

The family in this matter consists of Father, A.P. (born in 2002) and Ar.P. (born in 2008) (collectively, the children) and their mother, F.M. In 2011, the juvenile court sustained a Welfare and Institutions Code section 300, subdivision (b)(1) petition based on allegations of domestic violence between the parents. In 2012, the parents divorced, and in October 2012, after the family successfully participated in court-ordered family maintenance services, the juvenile court terminated jurisdiction and issued a family law exit order granting the parents joint (50/50) physical and legal custody.

B. Current Proceedings

The Department of Children and Family Services (DCFS) received a referral alleging that on February 3, 2018, Father had threatened A.P. (then 15 years old) with a baseball bat, and as a result, Father had been arrested for making criminal threats.

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On February 5, 2018, the mother obtained a temporary restraining order (TRO) from the family law court, prohibiting Father from having any contact with the children or the mother.

DCFS's investigation revealed that Father had called A.P. numerous times on his cellular phone, accusing A.P. of lying about the schedule for A.P.'s basketball game. After A.P. did not respond to Father's cellular phone messages, Father went to the mother's home, where the children were staying, and threatened to harm A.P. with a baseball bat.

The children reported to the DCFS social worker that, although Father had not physically abused them, he threatened and "talk[ed] down" to them. A.P. stated that Father had issues with anger and had no self-control; both boys stated that they never wanted to have contact with their Father again. The social worker also spoke with Father, who admitted that he was angry at A.P. and that he had threatened his son with a baseball bat. Father conceded that he overreacted to the situation, but claimed he had since enrolled in therapy and attended anger management classes.

On March 5, 2018, DCFS filed a section 300, subdivisions (a) and (b)(1) petition, alleging that the children were at risk because of Father's history of volatile and aggressive conduct and because Father threatened to harm A.P. with a baseball bat. The petition also alleged that the children did not want to visit him. At the March 6, 2018 detention hearing, the mother's counsel reported that, despite Father being admonished at the TRO hearing not to contact the children, he had violated the TRO by calling them and appearing at various places trying to see them. The juvenile court detained the children from Father, maintained them in the

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mother's custody, and ordered no visitation for Father pending the jurisdictional hearing.

The jurisdiction/disposition report disclosed that, according to the children, Father had always been an angry person and had a history of yelling, screaming, and throwing things. A.P. reported that Father slapped him on his face when he was seven or eight years old, which left a temporary mark, and that Father once dragged Ar.P. across the floor.

The mother told the investigator that, although she never saw bruises on the boys, she believed Father "emotionally torture[d]" them, had an anger problem, and was controlling. She stated that she planned to seek full custody of the boys. When the investigator met with Father, he admitted that he threatened A.P. with the baseball bat but claimed that he was not a bad father, but rather, "just had a bad day." The last minute information report indicated that Father continued to violate the TRO by showing up at the children's sports practices and relatives' homes attempting to see the children.

On April 10, 2018, at the adjudication hearing, the court sustained the allegations of the petition, declared the children dependents, removed them from Father, maintained them in the mother's custody, ordered the family to participate in services, and continued the hearing on the request to extend the TRO to a permanent restraining order. The court order that Father participate in individual counseling to address anger management, coping skills, parenting, and case issues, and if recommended by the children's therapist, conjoint counseling with the children. The

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juvenile court also ordered, "monitored visitation for [F]ather in a therapeutic setting, upon minor[s'] therapist deeming [visits] appropriate."

In August 2018, Father filed a section 388 petition, complaining that he had not yet had any visits with the children, and requesting that the court immediately order monitored visits in a therapeutic setting. Father attached documents from his service providers that disclosed he had been participating in services, including individual counseling, a parenting group, and an anger management program, and had been making progress on case issues. The juvenile court scheduled a hearing on Father's section 388 petition and ordered DCFS to prepare a report in response.

In response to the section 388 petition, DCFS reported that as of September 2018, the children and Father had not begun their conjoint counseling or monitored visits because the boys' therapist had reported that the children were not ready to have contact with Father, and had refused to see him. DCFS believed, however, it was in the children's best interest to rebuild their relationship with Father and acknowledged that Father had made progress in his programs and appeared interested in rebuilding his relationship with the children. Father had expressed remorse and wanted the opportunity to apologize to the children. DCFS recommended that the court order continued family maintenance services. It also recommended that "visits between [F]ather and the children be monitored visitation in a therapeutic setting; visits to commence as soon as can be arranged."

On October 9, 2018, at the combined hearing on Father's section 388 petition and the section 364 status review, the juvenile court denied Father's petition and ordered a three-month progress

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report to address visitation. The court also ordered Father to participate in an Evidence Code section 730 evaluation (evaluation). In February 2019, the children and Father were interviewed for that evaluation. The children both stated that they did not want to see Father and that their lives were better after they stopped going to Father's home. In his interview, Father admitted that he had made a mistake, but also maintained he had always shown the children love and respect and wanted the court to lift the restraining order.

The evaluator opined that, although Father expressed remorse over threatening A.P. with a baseball bat and wanted to reestablish his relationship with his sons, Father remained prone to impulsively acting out and had rigid expectations. The evaluator did not believe, however, that given their ages, the children should be given the authority to refuse to have contact with Father. In addition, the evaluator expressed a concern that the children and their mother had the same therapist, which raised the possibility that the mother's interests might be influencing the children's therapist's recommendations concerning visitation for Father. The report recommended that visitation begin with "virtual 'contact,' " using "Facetime" in sessions with a new therapist. After that, they should be referred to a different conjoint therapist to work on gradually liberalizing visits. (Italics omitted.)

The March 15, 2019 status review report filed in advance of the status review hearing scheduled for May 2019 indicated that neither conjoint therapy nor visitation had begun between Father and the children.

Father's parenting support group facilitator reported that Father had been consistently attending sessions and had been doing relatively well addressing case issues. Father's therapist reported that Father had attended sessions, was making progress, and recommended that he continue in therapy. Father's anger

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management facilitator reported that Father completed 52 weeks of the program, but also recommended that Father participate in additional sessions because of his demanding communication style. He believed Father might be a candidate for domestic violence intervention and further reported that Father still had not yet fully taken responsibility for his behavior.

The DCFS report disclosed that the children had not been to individual therapy in several months, but as of February 2019, the therapist continued to recommend against visitation for Father because the children were still afraid of him and not ready to visit. DCFS recommended that the court terminate jurisdiction and issue a family law exit order granting the mother sole physical and legal custody of the children and monitored visits for Father in a therapeutic setting when deemed appropriate by the children's therapist.

On May 22, 2019, the juvenile court conducted the contested section 364 review hearing. DCFS, the mother's and the children's respective counsel, urged the court to terminate jurisdiction with a family law order granting the mother sole physical and legal

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custody and monitored visits for Father in a therapeutic setting when deemed appropriate by the children's therapist. Father's counsel objected to the delegation of authority to the children and their therapist to make the decisions about visitation, asked the court to maintain jurisdiction, and immediately to order virtual visits in a therapeutic setting.

The court terminated jurisdiction with an exit order granting the mother sole legal and physical custody of the boys. As to visitation, the exit order provides: "The court finds that it would be detrimental to the children to visit with their father at this time. When the minors['] therapist deems it is appropriate, the father shall visit[ ] with the children one time per month in a virtual therapeutic setting. The minors shall not be forced to participate."

Father timely appealed.

When making an exit order, the dependency court must be guided by the best interests of the children. ( In re John W . (1996) 41 Cal.App.4th 961, 973.) We review the court's order for abuse of discretion. ( Bridget A . v . Superior Court (2007) 148 Cal.App.4th 285, 300.)

The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. ( In re Donnovan J . (1997) 58 Cal.App.4th 1474, 1476 ( Donnovan J .) [rule of non-delegation applies to exit orders issued when dependency jurisdiction is terminated]; see In re Chantal S . (1996) 13 Cal.4th 196, 213-214 ( Chantal S .) [same].) In finding the exit order in Donnovan J . an improper delegation of judicial power to the children's therapist, the court explained: The order "neither requires that the therapists manage visitation ordered by the court, nor sets criteria (such as satisfactory progress) to inform

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the therapists when visitation is appropriate. Instead it conditions visitation on the children's therapists' sole discretion. Under this order, the therapists, not the court, have unlimited discretion to decide whether visitation is appropriate. That is an improper delegation of judicial power." ( Donnovan J ., supra , 58 Cal.App.4th at pp. 1477-1478.)

DCFS argues that the visitation order in this case is more like the order in Chantal S ., rather than Donnovan J . We disagree. The order upheld in Chantal S . conditioned the father's visitation on his conduct— his progress in counseling as determined by his therapist. In contrast, here not only does the order leave the determination of whether Father will ever have any visits exclusively to the children's therapist, it also offers Father no guidance on what he can do, if anything, to ensure visits will occur or how long he must wait before visits are deemed appropriate. We, therefore, conclude, the court's exit order for visits at the discretion of the children's therapist constitutes an unlawful delegation of judicial authority, and it must be reversed.

Likewise, the order's provision that the children can refuse visitation is also an abuse of discretion because it gives the children veto power as to whether any visitation would occur. (See In re Julie M . (1999) 69 Cal.App.4th 41, 48 [finding court abused its discretion where the visitation plan required the consent of the older children]; In re S . H . (2003) 111 Cal.App.4th 310, 319 [reversing a visitation order where the court gave the children the ability to refuse visits].) Because the order was erroneous as a matter of law, it constituted an abuse of discretion.

Nor would it be appropriate to deny all visitation. A decision that visits would not be in the children's best interest must be based on something more than evidence that the children do not want to visit with a parent. (See In re Julie M ., supra , 69 Cal.App.4th at p. 50 [child's aversion to visiting an abusive

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parent cannot be the only evidence determining the appropriateness of parental visits]; see also In re S . H ., supra , 111 Cal.App.4th at p. 319.) As Father points out, the evidence in the record showed he participated in services throughout the reunification period, and DCFS recognized that he had made progress in his programs. Father had expressed remorse and wanted the opportunity to apologize to his sons. Visitation was critical to any possibility of Father rebuilding his relationship with them. Monitored visits in some form would protect the children from any potential physical violence, and, given Father's eagerness to reestablish a relationship, it is highly unlikely that he would verbally abuse them.

In view of the foregoing, the case must be remanded to the trial court to determine whether jurisdiction should be continued, and to formulate a new visitation order that does not give the children or their therapist authority to determine visitation. Given that the family's circumstances may have changed since dependency was terminated in May 2019, the court should consider any relevant evidence proffered by the parties regarding the terms of the visitation order.

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The order terminating dependency jurisdiction is reversed, and the visitation order is vacated. The case is remanded for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED .

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.