In re D.B. ( 2020 )

Filed 5/20/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.B., a Person Coming B298750
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP07975)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES, ORDER MODIFYING
OPINION
Plaintiff and Respondent,
[No change in judgment]
v.
B.K.,
Defendant and Appellant.
THE COURT:
IT IS ORDERED the opinion in the above-entitled matter
filed on April 30, 2020 be modified as follows:
1. On page 14, second sentence of the fourth paragraph, delete
the word “laudably.”
2. On page 16, delete both paragraphs under Section B.1.
Replace with the following paragraph under Section B.1:
“Father’s first argument is the juvenile court
impermissibly restricted the family court’s power to modify
custody or visitation. But the juvenile court did not restrict
the family court’s power. Father can go to family court as he
pleases and seek modification on whatever basis he wants.
What the juvenile court said about counseling does not limit
the family court’s power at all. The juvenile court order does
not tell the family court what to do. It tells Father and
Mother what to do. Father’s first argument is in error.”
There is no change in the judgment.
BIGELOW, P.J. GRIMES, J WILEY, J.
2
Filed 4/30/20 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re D.B., a Person Coming B298750
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 18CCJP07975)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.K.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Harry A. Staley, Judge. Affirmed.
Law Office of Melissa A. Chaitin and Melissa A. Chaitin,
under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
The juvenile court found jurisdiction over Daughter and
terminated the case with a juvenile custody order. Father appeals.
We affirm. All statutory citations are to the Welfare and
Institutions Code.
I
We recount facts about Daughter, Mother, and Father.
A
Daughter’s parents met in 2003 and dated for about a year.
The relationship ended because Father did not want a commitment.
Mother married another man but it did not work out and the
spouses separated. While still legally married to the other man,
Mother began seeing Father again and became pregnant by him.
Mother wanted to avoid conflict during pregnancy and so did not
tell Father about it.
Mother gave birth in the summer of 2006. Mother revealed
the fact to Father about a month later. Father responded by
accusing Mother of ruining his life: “‘How dare you have a kid?’”
The couple began proceedings in family court, where Father
declared Mother “masterplanned to get pregnant from me and she
refused to get [an] abortion.”
Mother and Father never married.
The family court granted Mother sole physical custody of
Daughter. The parents shared joint legal custody. Father’s visits
with Daughter were Monday and Wednesday evenings from 5:00
p.m. until 7:00 p.m. and alternating Saturdays, from 9:00 a.m. until
noon.
B
The Department of Children and Family Services became
involved and now is the respondent in this case.
2
On November 19, 2017, the Department received an
allegation Father was emotionally abusing Daughter. Father
refused to meet with the Department, which closed the referral as
inconclusive.
Less than a year passed before the Department heard more
about Father and Daughter. The child protection hotline got a call
on October 23, 2018, about the previous evening. Daughter was 12
years old. Father went to Daughter’s home for a visit but arrived
late, at about 7:15 p.m. The scheduled time had been 5:00 p.m. to
7:00 p.m. Daughter no longer wanted to go with Father because she
had to finish homework. Father left briefly but returned and began
throwing objects like rocks or metal at the front door and windows.
The sounds were like gunshots.
Father’s violence frightened Daughter. She was “‘very
stressed out and scared.’” Later there was testimony that, during
this event, Daughter hid in a closet, crying, and did not want to
come out. Police came but arrested no one.
C
Based on the hotline call, the Department opened an
investigation and gathered information.
Father wrote in court papers he had been in custody for 11 1/2
months because “I have been wrongly accused of a misdemeanor . . .
.”
The Department obtained police call out records for Father’s
home, which is different than Mother’s and Daughter’s. The
records for Father’s address showed 22 call outs over six years. The
episodes were diverse. The most recent was by “father, physical
assault by neighbor. Both parties taken to West Valley Police
Station.” The next is by “Kathy, [reporting party] has a restraining
order against the father.” Others involve “dispute with tenant,”
“Kathleen, father in back yard despite a Restraining Order in
3
place,” “ongoing neighbor dispute,” “father [reports] [n]eighbors
possibly throwing rocks at residence,” “suspect threatening him
with a taser and dog,” “[m]utual battery reports filed,” “suspect
throwing rocks,” “PD needed to keep the peace,” “[o]ne female is
threatening PR with a taser,” “[u]nknown suspect throwing rocks
and gravel at PR’s residence,” and “[p]ossible transient in front of
location yelling and talking to himself.”
Mother’s roommate and landlord won a restraining order
against Father. Father told Daughter this woman is a “‘fucking
bitch.’”
Father repeatedly came to the house other times outside of
the visitation schedule. This caused conflict.
Mother had called police “multiple times” about Father in the
past.
Over the previous three years, Daughter had become more
vocal about not wanting to visit with Father. Father made
disparaging remarks about Mother and her culture.
Father called Mother a “‘stupid whore and bitch’” in front of
Daughter.
Father texted Mother that Daughter would become a drug
addict by the time she was 18 years old, followed by the text “very
sad Spanish sty [sic] life.”
Mother’s family hails from Central America. Father’s
heritage is from a culture in which the native tongue is not Spanish.
Father repeatedly came to the home and was “verbally
aggressive, including racial remarks.” Daughter said Father talks
“‘badly about my mom’s family.’”
Daughter said that, even when Father tried to instigate
arguments with Mother, Mother would do her best to avoid
arguments with Father. Mother gave Daughter encouraging advice
and validated her concerns but still encouraged her to visit with
4
Father and to maintain a relationship with him. Mother told
Daughter she must always respect Father.
Many times Father made comments that made Daughter
upset. He called her a liar. Father told Daughter she would never
amount to anything. He said she was fat and would grow up to be a
loser like her mother. He made frequent comments about
Daughter’s weight. Father forced Daughter to ride a stationary
bike for an hour.
Daughter said “‘he’s never been a good dad.’” She felt
depressed and overwhelmed by Father’s actions and had
nightmares. Father was “usually difficult and irrational.” His
anger was “‘over the top irrational.’” Daughter was “‘scared about
what he will say or do.’” She was very fearful of Father and very
distraught after visits with him. Many times she returned from
these visits “very nervous to the point that her hands were
shaking.”
According to Daughter, nothing would make the relationship
better because Father “‘won’t cooperate with anything.’” He made
her feel “‘trapped.’” “‘[T]here is no way I would ever live with him.’”
She said Father “‘is a vicious man, and says if I stay with my
mother, I will be a drug addict like my mom.’” The Department,
however, received no information Mother had any involvement with
drugs.
When Father came to Daughter’s home in an aggressive
manner, it made her “‘hysterical.’” Daughter wrote to the court that
Father “‘does nothing but make me stressed out, insecure,
miserable, and sad.’”
D
On December 14, 2018, the Department filed a section 300
petition on behalf of Daughter, alleging Father’s conduct placed the
5
child at substantial risk of serious emotional damage pursuant to
subdivision (c).
The juvenile court held a detention hearing on December 17,
2018. Judge Stone appointed counsel for Father. Counsel,
including Father’s attorney, presented their clients’ positions to the
court.
Then Father broke in: “I need to be heard, Your Honor.” The
court told Father he had to speak with his attorney. Father replied:
“Well, if [my attorney] stops me, then I’m going to relieve him.
Then I speak and represent myself.” The court ordered Father to
talk to his attorney and to tell the attorney what Father wanted
said to the court.
Father interrupted and said, “This is what I said.”
At this point, the court said, “Sir, Sir, you are not in charge of
how this court is run.” The court patiently explained courtroom
procedure to Father. Father and his attorney conversed.
Father’s attorney then spoke, relaying Father’s concern.
While the court was responding, Father interrupted again: “I need
to be heard, Your Honor.”
The court again ordered Father to stop talking. Father again
interrupted the court.
The court said, “I’m going to have to ask you to leave if you
can’t remain quietly there at the table so—”
Father again interrupted: “This is about the child. We are
here for the child. This is in the interest of the child or not?”
The court responded it was aware “we’re here for the child.”
Father kept speaking. The court told Father “[y]ou don’t set
the rules here.” Father said, “This is not the rules.”
The court said, “I’m stopping you right now. And if not, you
will be leaving. Okay? That’s it.” Father said okay.
6
The court then found a prima facie case for detaining
Daughter from Father under section 300, subdivision (c). The court
ordered no visits for Father pending the next hearing and ordered
the Department to prepare a further report. The court set a date
for the next hearing.
On January 4, 2019, Judge Stone held a Marsden hearing.
On February 20, 2019, Judge Spear held a further hearing,
but a witness was sick. The court continued the matter to April 3,
2019.
On April 3, 2019, Referee Grodin held a further hearing,
which was continued because an attorney was on jury duty.
On May 22, 2019, Judge Staley heard the matter for trial.
Father asked for another Marsden hearing saying, “I had the
previous attorney, he did a bad job, the court let him go. They
assigned this gentleman.” The court held another Marsden hearing
and denied Father’s motion. Then Father moved to represent
himself. At the conclusion of the Faretta hearing, Father withdrew
his motion.
At trial, Father called Daughter to testify as a witness.
Daughter testified she was 12 years old. When asked whether
there were periods when she cried as a result of having to see her
father, Daughter answered, “Oh, many, yeah.” She had not seen
Father for five or six months and that made her feel “[g]ood. I
mean, I’m not feeling nearly as anxious or stressed out as I had
been when he was—when I was going and he was saying all those
bad things.” As a result of seeing Father, Daughter had had trouble
sleeping and had felt insecure, “[k]ind of hopeless,” and “like it was
never going to get better or anything.”
Father testified. He denied throwing things at Daughter’s
home. Father said he had encouraged Daughter to engage in
sports. Father testified Daughter was lying when she said he has
7
called her “overweight, fat, or chubby.” He confirmed he had called
Daughter a liar, and he had told Daughter Mother is a liar too.
Father testified, “I texted the mother that the way your group
is doing, the way you are doing this to the child, the child may
become [a] drug addict.” Father testified “I never said anything
negative about [Daughter’s] ethnicity.”
The court ruled the evidence supported the allegations in the
Department’s petition about the risk of severe emotional injury to
Daughter. The court then terminated jurisdiction and awarded full
legal and physical custody to Mother. The court permitted Father
monitored visits with Daughter upon completion of individual
counseling and also five counseling sessions to be held jointly with
Daughter. Father appealed.
II
The juvenile court correctly ruled evidence supported the
Department’s section 300 petition. We affirm findings under
section 300 when, as here, substantial evidence supports them. (In
re James C. (2002) 104 Cal.App.4th 470, 482.)
A
A child comes within the jurisdiction of the juvenile court
under subdivision (c) of section 300 if (with our italics) the child is
at “substantial risk of suffering serious emotional damage,
evidenced by severe anxiety, depression, withdrawal, or untoward
aggressive behavior toward self or others, as a result of the conduct
of the parent . . . .”
B
The confluence of five factors supports the court’s finding of a
risk of serious emotional damage to Daughter. The five factors are
violence, systematic verbal abuse, racism, impulsivity, and lack of
insight. This combination created substantial evidence Daughter
suffered “severe anxiety,” which in turn was evidence of a
8
“substantial risk” Daughter would suffer serious emotional damage.
We note each element in this set of five.
1
Father was violent. His violence scared Daughter and made
her anxious. Father’s violence made Daughter cower and cry in a
closet while he assaulted her home. Daughter’s fear of Father’s
violence made her unwilling to come out of the closet where she hid.
Father denied he ever was violent, and suggests, even if he
were, it was only once. The juvenile court, however, was entitled to
reject Father’s denial of violence as self-serving and unbelievable.
A 12-year-old can extrapolate from one vivid experience.
Daughter did. She considered Father a vicious man. An arresting
demonstration of a parent’s violent potential can reframe a child’s
understanding of her parent’s character and can increase her fright
and the risk of emotional damage to her. That was true here.
2
Father verbally abused Daughter in routine and wide-ranging
ways. He demeaned her character, her body, her prospects, her
mother, and her ethnic heritage. Father’s persistent emotional
abuse made Daughter fear every interaction with him. Joined with
other factors, severe and persistent verbal abuse can create a
substantial risk of serious emotional damage.
3
Racist harassment can be poisonous. This is particularly so
within what once was a family. It is one thing for a child to dismiss
racism in strangers as ignorant talk from people the child may not
respect and can avoid. It is another for the child to fend off racism
from those she is supposed to love and respect as role models and
teachers. When the authority figure aims the racism at the child’s
mother and her family and by extension to the child as well, the
risk of emotional damage increases.
9
4
Father’s impulsive court conduct tended to verify the
Department’s case. In the formal setting of a courtroom, with
counsel to advise him and to help moderate his conduct, and with
the court reporter capturing each word, Father nonetheless could
not easily restrain himself.
Across a range of conflicts, Father was the common
denominator. His anger made him “over the top irrational.”
Angry impulsivity tends to magnify issues of violence, verbal
abuse, and racism. This increased the risk of emotional damage to
Daughter.
5
Father lacked insight. The problem was always others, never
him. Father could not acknowledge he might be a source of
difficulty.
Realizing conduct needs improvement is a first step to
improvement. “One cannot correct a problem one fails to
acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
Father gave no sign he would change his conduct or alter the risks
his conduct was creating for Daughter.
C
Taken together, these five elements validate the court’s
decision. And when the juvenile court proceedings began and
sealed Father off from Daughter for months, Daughter flourished.
She began to feel good. The juvenile court was entitled to conclude
Father’s conduct did create a substantial risk of serious emotional
damage.
D
The long and ongoing family law proceeding between Father
and Mother does not change the analysis under section 300 here.
True, the juvenile court must never, for illegitimate tactical
10
reasons, become a new front in a family law war. (E.g., In re
Nicholas E. (2015) 236 Cal.App.4th 458, 466.) But nothing suggests
Mother engineered a bad faith flanking maneuver into juvenile
court to shop for judges.
E
Father cites inapposite cases.
The decision in Nahid H. v. Superior Court (1997) 53
Cal.App.4th 1051, 1070 (Nahid) made a sage observation. “Parents
may entertain beliefs and engage in activities with which their
children disagree, including political beliefs and activities. One
need only recall the student protests over the Vietnam War in the
1960's to recognize that serious political differences can arise
between the generations within a family. But no one would
seriously propose that political differences between parent and
child—even major ones—would support the dependency jurisdiction
of a juvenile court, absent a substantial risk of palpable harm to the
child.”
Nahid was right but does not apply. It was not some political
difference that divided Father and Daughter.
Nor does the opinion in In re A.G. (2013) 220 Cal.App.4th 675,
683–686 (A.G.) govern. There the Department asserted jurisdiction
on a different basis than it did in this case. The mother in A.G.
suffered from a grave mental illness and stayed in her room. (Id. at
p. 684.) The Department claimed jurisdiction on the ground she
could not care for the children. (Id. at p. 682.) The A.G. decision
rejected this claim because the father had been effective in
providing all needed care. (Id. at p. 684.) “Although the evidence
supported the finding that Mother was unable to provide regular
care for the minors due to her mental illness, Father has shown
remarkable dedication to the minors and that he is able to protect
them from any harm from Mother's mental illness.” (Ibid.) By
11
contrast, in this case no one claims Mother is unable to provide
Daughter with needed care. Rather the Department proved Father
created a risk of emotional injury to Daughter through his visits
with her—visits the family court ordered and that Mother was
powerless to block. A.G. has no application here.
The same analysis applies to Father’s citation of In re Phoenix
B. (1990) 218 Cal.App.3d 787, 792. (“The Department detained
Phoenix because of her mother's psychiatric commitment. It then
investigated Phoenix's immediate circumstances and discovered
that her father was willing and able to provide for her care.”)
Also inapposite is In re Patrick S. (2013) 218 Cal.App.4th
1254, 1263, where the court determined the father was an
admirable parent in every respect.
Father cites In re Brison C. (2000) 81 Cal.App.4th 1373,
1379–82 (Brison C.). Regarding this case, we quote In re A.J. (2011)
197 Cal.App.4th 1095, 1105–1106: “We question the soundness of
the Brison C. court’s conclusion the minor displayed no signs of
serious emotional damage. The minor in Brison C. feared his
father, had suicidal ideation if forced to visit or live with him, and
suffered nightmares. (Brison C., supra, 81 Cal.App.4th at p. 1377.)
The conflict between his parents caused him “‘upset, confusion and
gastrointestinal distress.’”
We share these questions.
Apart from these questions, Brison C. also differed from this
case. The father there realized “‘that he could have handled things
differently, that he could have chosen different words when he
spoke with Brison.’” (Brison C., supra, 81 Cal.App.4th at p. 1377;
see also id. at p. 1381 [both parents recognized their past behavior
was inappropriate].) In contrast to Father, the parents in Brison C.
had some insight.
12
In sum, the evidence supported the court’s assertion of
jurisdiction.
II
Father incorrectly argues the juvenile court erred by
terminating jurisdiction over Daughter at disposition. Citing In re
Sarah M. (1991) 233 Cal.App.3d 1486, 1491, Father contends that,
“[g]iven the strained and damaged relationship between mother and
father, it was premature for the court to terminate jurisdiction at
the disposition hearing.”
The question is whether juvenile court services and ongoing
supervision were necessary to protect the child from harm. (In re
Destiny D. (2017) 15 Cal.App.5th 197, 205–213.) If Daughter was
safe, then services and supervision were unnecessary and the
juvenile court could close the case. Statutes grant the juvenile
court broad authority to enter orders to protect a dependent child
and to reunite the family and terminate jurisdiction as quickly as
possible. (Id. at p. 207.) That authority includes discretion to
terminate dependency jurisdiction when the child is in parental
custody and no protective issue remains. (Ibid.)
Father agrees the standard of review is deferential. (See In re
Ethan J. (2015) 236 Cal.App.4th 654, 660 (Ethan).)
There was no termination error. Substantial evidence showed
Daughter was safe. The court did not abuse its discretion.
Daughter’s safety arose from the orders and timing in this
case. The court’s initial and provisional order on December 17,
2018, was no visits for Father. The court continued the matter for
months. The reasons were various and happenstance: someone
was sick, another time someone was on jury duty, and so on. By the
time the evidentiary hearing finally went forward on May 22, 2019,
Daughter had gone for months without contact from Father. She
13
had been free of Father’s emotional abuse. This freedom improved
her life and restored her emotional health.
No evidence suggested Mother or Father would stop
complying with the court’s orders if the court closed the case.
Rather, all the evidence was Daughter would be safe without the
court watching her. There was no need for jurisdiction over
Daughter to continue after May 22, 2019. Father had been the
problem, and Father had been gone.
Father’s reply brief in this court did not respond to the
Department’s analysis of this issue.
The juvenile court did not err by terminating jurisdiction.
III
Father’s final argument is the juvenile court’s order
unreasonably restricted the family court’s power to modify custody
or visitation. Father laudably acknowledges the juvenile court is
vested with broad discretion to make orders when it terminates
jurisdiction. The juvenile court’s primary focus is the best interests
of the minor.
First we describe the challenged order. Then we examine and
reject Father’s attacks upon it.
A
The court consulted with the parties about the proper juvenile
custody order. The issue was whether Father could visit Daughter
and, if so, on what terms.
Daughter’s counsel asked the court to order “either no visits
or monitored visits in accordance with the child’s wishes, Your
Honor.” Mother’s counsel said she “would agree with that provision
regarding visitation.”
The court began to issue such an order: “The court will
terminate jurisdiction and provide full legal and physical custody to
14
Mother. Monitored visits for the father at the discretion of the
child—”
The Department interrupted the court: “Your Honor, I’m
going to have to object to that order.” The Department’s objection
was it “is reversible error. There is case law that the court can’t do
it.”
The court immediately agreed with the Department’s
objection: “As I was saying that, I was thinking I can’t leave that
up to the child.” Father’s attorney chimed in: “Thank you, Your
Honor.”
The Department recommended no visits until Father “has
been in individual counseling and there has been conjoint
counseling sessions as well. And those sessions would be
equivalent, in some sense, to a monitored visitation order. But at
this point, given the testimony of the father and his lack of insight
and compliance—”
The court broke in. “Let me interrupt. The court is inclined
to modify its order to make those monitored visits for the father
upon completion of individual counseling and a minimum of five
conjoint therapy sessions with the child.”
Mother’s counsel asked for clarification. “[I]t’s individual
counseling for the father and then five conjoint therapy sessions
with the minor?” The court responded “[a] minimum of five, yes.”
Father objected.
The court responded to Father. “The father has made no
attempts to be involved in any rehabilitation efforts up to this point,
has treated the child—although the child is doing better now—and
that’s clear from the testimony . . . . But that wasn’t the situation
when the father was having contact with the child and making
negative comments about the mother to the child and negative
comments to the child about the child and about her prospects in
15
life, becoming an addict a possibility. And that request [by Father
for immediate unmonitored contact with Daughter] is denied.”
The juvenile court’s minute order was that “Father is to have
monitored visits upon completion of individual counseling and 5
conjoint therapy sessions with the minor.” Its further written order
was Father “may have monitored visitation upon completion of or a
showing of substantial compliance in individual counseling and five
conjoint counseling sessions with the child.”
B
Father makes three unavailing attacks on this order.
1
Father’s first argument is the juvenile court impermissibly
restricted the family court's power to modify custody or visitation.
This invalid argument ignores what the custody order says.
The juvenile court did not restrict the family court’s power.
Father can go to family court as he pleases and seek modification on
whatever basis he wants. What the juvenile court said about
counseling does not limit the family court’s power at all. The
juvenile court order does not tell the family court what to do. It
tells Father and Mother what to do. Father’s first argument is in
error.
2
Second, Father claims the order invalidly conditions Father’s
visits and modifications to the order upon the completion of
counseling, citing In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456
(Cole). The court’s order, Father contends, violates subdivision (d)
of section 302.
Subdivision (d) of section 302 provides “[a]ny custody or
visitation order issued by the juvenile court at the time the juvenile
court terminates its jurisdiction . . . shall be a final judgment and
shall remain in effect after that jurisdiction is terminated. The
16
order shall not be modified in a proceeding or action described in
Section 3021 of the Family Code unless the court finds that there
has been a significant change of circumstances since the juvenile
court issued the order and modification of the order is in the best
interests of the child.”
We do not understand how this provision, which empowers
the juvenile court, can operate to constrict its power. For this
reason, at the least, we respectfully distinguish Cole, supra, 233
Cal.App.4th at p. 1456. As the Department points out, this case
differs from Cole in that here Father’s contacts with Daughter
directly caused the risk to her emotional well-being. This was not
true of the situation in Cole.
Father’s reply brief in this court did not respond to the
Department’s analysis of this issue.
3
Father’s third argument is the juvenile court’s order was
particularly egregious given Daughter’s aversion to visiting Father
and her own unwillingness to enroll in counseling, let alone conjoint
counseling with her father. Father maintains the juvenile court
abdicated its discretion and in effect allowed Daughter to determine
whether any visits will occur. The juvenile court, he claims,
impermissibly delegated the court’s authority over visits to the child
and thus virtually guaranteed visits would never occur. Father
cites In re Julie M. (1999) 69 Cal.App.4th 41, 51 (“[T]he ultimate
supervision and control over this discretion must remain with the
court . . . .”) (Julie) and Ethan, supra, 236 Cal.App.4th at p. 662.)
In short, Father objects the order impermissibly gave
Daughter veto power. He says Daughter can shut him out simply
by refusing to attend joint counseling with him.
Father’s argument misconstrues the juvenile court order. It
is true, as we have detailed, that the juvenile court initially was
17
attracted to Daughter’s counsel’s suggestion the court should
empower Daughter to decide about visits with Father. This
attorney asked for “either no visits or monitored visits in
accordance with the child’s wishes, Your Honor.” (Italics added.)
The juvenile court began to create such an order, prompting a
mid-sentence interruption by vigilant Department counsel, who
interjected that to give veto power to Daughter would be “reversible
error. There is case law that the court can’t do it.” The court
immediately grasped the Department’s point and agreed: “As I was
saying that, I was thinking I can’t leave that up to the child.”
The court then issued a different custody order. This order is
properly interpreted in light of this context. The order does not
grant Daughter power to veto visits with Father. The court began
to give Daughter that power but reversed itself in response to the
Department’s objection. Instead the court went with the
Department’s recommendation to bar visits until Father had
completed his individual counseling, and then to require Father and
Daughter to complete five joint counseling sessions, which the
Department accurately described as “equivalent” to a “monitored
visitation order.”
This order is mandatory. It gives discretion neither to Father
nor to Daughter. Father is to complete or make substantial
progress in his individual counseling. Father and Daughter are to
complete five joint counseling sessions, which are to amount to
monitored visits. The order gives Daughter no veto power. Rather,
once Father completes his individual counseling, Father has a right
to five joint counseling sessions with Daughter, to be monitored and
supervised by the counselor.
If Daughter refuses to cooperate with this order, Father
would be entitled to seek modification of the order in family court.
(In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)
18
This case thus differs from Julie, where the juvenile court
simply gave children “the option to consent to, or refuse, any future
visits” with the parent. (Julie, supra, 69 Cal.App.4th at p. 46; see
also id. at pp. 48–51.) It also differs from Ethan. (See Ethan,
supra, 236 Cal.App.4th at p. 661 [juvenile court dismissed
jurisdiction with knowledge its visitation order was not going to be
honored because son refused adamantly visitation, so juvenile court
“virtually guaranteed that visitation would not occur”].)
Father’s reply brief in this court did not respond to the
Department’s analysis of this issue.
We have authoritatively interpreted the custody order. So
interpreted, it is valid.
DISPOSITION
We affirm.
WILEY, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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