In re N.P. CA2/1 ( 2020 )

Filed 11/2/20 In re N.P. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re N.P., a Person Coming B304583
Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No.
19CCJP06926)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
DAVID P.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Pete R. Navarro, Judge Pro Tempore. Affirmed.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Jane Kwon, Principal Deputy County
Counsel, for Plaintiff and Respondent.
____________________________
David P. (father) appeals from the juvenile court’s denial at
a jurisdiction and disposition hearing of father’s request for
visitation at the Los Angeles County jail, where father was
incarcerated. Finding no abuse of discretion, we affirm the
juvenile court’s order.
BACKGROUND
N.P., then nine years old, came to the attention of the Los
Angeles County Department of Children and Family Services
(DCFS) in September 2019 as part of an investigation into
allegations that father had physically abused N.P.’s older half
sister, M.P.1 During DCFS’s initial investigation, N.P., father,
and mother denied that father had physically abused N.P. At an
1 N.P. and M.P. have different mothers. At the time of the
abuse that sparked this investigation, which happened during a
visit to father’s home, M.P. was living primarily with her mother,
Monique H. N.P. lived with father, Marina H. (mother), and
paternal cousin Marquis S. Mother was a party to the
proceedings in the juvenile court, but filed no notice of appeal.
Earlier DCFS referrals for allegations of father’s physical abuse
of both N.P. and M.P.—in 2007 (M.P.), 2013 (slapping M.P. and
punching N.P. in the chest), and 2017 (M.P. and N.P.)—were
closed as unfounded.
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unannounced DCFS home visit on October 18, 2019, N.P.
reported that he felt safe in the home.
On October 21, 2019, however, N.P.’s paternal cousin
Marquis S. called DCFS and reported that father had been
physically abusing both mother and N.P. and had been abusing
alcohol and prescription medication. Marquis provided DCFS
with an audio recording of father strangling mother on the
evening of September 3, 2019, as N.P. watched; both mother and
N.P. confirmed the contents and identities of the people in the
recording. In the transcript of the audio recording, father mocks
mother for screaming and gasping for air as he strangles her.
N.P. begs his mother to stop gasping for air and screaming.
Father was already strangling mother as the audio recording
began, and released her and then threatened to kill her shortly
before the 1 minute, 57 second audio recording ended.
On October 23, 2019, DCFS sought and the juvenile court
issued an expedited order to detain N.P. from father. The same
day, DCFS retrieved mother and N.P. from N.P.’s school and
drove them first to a DCFS office and then to a restaurant where
a domestic violence shelter arranged to have a taxi retrieve
mother and N.P. and drive them to the shelter’s undisclosed
location.
On October 25, 2019, DCFS filed a petition under Welfare
and Institutions Code section 300, alleging in three counts that
N.P. was a person described by section 300 based on allegations
of father’s domestic violence against mother (counts a-1 and b-1),
substance abuse (count b-2), and mother’s failure to protect (all
counts).2 At detention hearings on October 28 and 31, 2019, the
2 Further statutory references are to the Welfare and
Institutions Code.
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juvenile court concluded that a prima facie showing existed that
N.P. was a person described by section 300. Based on mother’s
temporary residence with N.P. at a domestic violence shelter, the
juvenile court detained N.P. from father and released him to
mother under DCFS’s supervision. The juvenile court initially (at
the October 28 hearing) ordered that father would have at least
one monitored visit with N.P. “at a DCFS office or other
appropriate location” before the next hearing date, but ultimately
(at the October 31 hearing) ordered no visitation based on
mother’s shelter’s requirement that there be no contact with
father while she remained in the shelter.3 The juvenile court set
the matter for hearing on December 19, 2019.
On December 5, 2019, DCFS filed its jurisdiction and
disposition report. DCFS explained that at an interview on
December 2, N.P. reported that, in addition to the domestic
violence allegations detailed in the original section 300 petition,
father had physically abused him by “slapping [N.P.] across the
face and punching him in the chest.” On December 18, 2019—the
day before the scheduled disposition and jurisdiction hearing—
DCFS filed an amended section 300 petition alleging two
additional counts (a-2 and b-3) regarding father’s physical abuse
of N.P.
That same day—December 18, 2019—father was arrested
on charges of “child abuse,” according to mother’s counsel, based
on “the subject of this case.” The juvenile court continued the
jurisdiction and disposition hearing to January 17, 2020, and
3At the October 31, 2019 hearing, mother’s counsel also
objected to father having any visitation based on a report that
“outside of the courtroom” before the hearing, “father was
attempting to tell [N.P.] what to say” at the hearing.
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issued an order that the Los Angeles County Sheriff’s
Department transport father from jail to the hearing and back.
At the jurisdiction and disposition hearing on January 17,
2020, the juvenile court sustained the amended petition as to
both parents, placed N.P. with mother under DCFS’s supervision,
ordered family maintenance services to N.P. and mother and
enhancement services to father, and ordered that father have one
two-hour monitored visit per week at a DCFS office. The juvenile
court gave DCFS discretion to liberalize visits. Based on his
incarceration, father requested that visitation be required at the
jail. The juvenile court denied father’s request, initially stating,
“I’m disinclined to order visitation, that he be taken to county
jail. That’s not the best place to visit.” The juvenile court then
stated, “I’m going to allow monitored visits in a [DCFS] office. If
[father is] pending trial, I don’t want to run the risk of tainting—
any attempts to taint or coerce the minor, influence the minor in
changing his testimony. I don’t want to put him on . . . once he
completes his criminal case, you can file the appropriate
motions.”
Father filed a timely notice of appeal.
DISCUSSION
Father appeals from the denial of visitation with his son
while father was incarcerated pending criminal proceedings
because the juvenile court did not make a finding that visitation
at the county jail would be detrimental to N.P. (See § 366.21,
subd. (h).) DCFS argues that it was not required to show a
detriment to N.P. because the juvenile court did not order
reunification services, but rather enhancement services. The
detriment standard in section 366.21, subdivision (h), DCFS
explains, is not the applicable standard. According to DCFS, the
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juvenile court was required only to balance N.P.’s best interests
against father’s interests in visitation, and not whether visitation
in the county jail would be detrimental to N.P. (See In re
Jennifer G. (1990) 221 Cal. App. 3d 752, 756-757 (Jennifer G.).)
He argues that section 366.21, subdivision (h) supports his
claim. We disagree. That section provides: “[i]n any case in
which the court orders that a hearing pursuant to Section 366.26
[to terminate parental rights] shall be held, it shall also order the
termination of reunification services to the parent or legal
guardian. The court shall continue to permit the parent or legal
guardian to visit the child pending the [section 366.26] hearing
unless it finds that visitation would be detrimental to the child.”
(Italics added.) On its face, then, section 366.21, subdivision (h)
only requires the juvenile court to find that visitation would be
detrimental to the child if both (a) the juvenile court orders a
termination of parental rights hearing and (b) the juvenile court
orders that the parent will have no visitation. (Cf. In re Manolito
L. (2001) 90 Cal. App. 4th 753, 759-760.)
The juvenile court ordered no reunification services, nor
could it do so; N.P. was always in mother’s custody. (§ 16507,
subd. (b).) And the case was never set for permanency planning
under section 366.26. “[T]he focus of dependency proceedings ‘is
to reunify the child with a parent, when safe to do so for the child.
[Citations.] The goal of dependency proceedings—to reunify a
child with at least one parent—has been met when, at
disposition, a child is placed with a former custodial parent and
afforded family maintenance services.” (In re Pedro Z. (2010) 190
Cal. App. 4th 12, 20, original italics.)
Father correctly contends that “[p]arents have the right of
visitation from the fact of parenthood.” (See Jennifer G., supra,
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221 Cal.App.3d at p. 756.) “Thus, the court must define the
rights of the parties to visitation.” (Id. at p. 757.) To define the
rights of the parties to visitation in this particular context, the
juvenile court must “balanc[e] . . . the interests of the parent in
visitation with the best interests of the child. In balancing these
interests, the court in the exercise of its judicial discretion should
determine whether there should be any right to visitation and, if
so, the frequency and length of visitation. The court may, of
course, impose any other conditions or requirements to further
define the right to visitation in light of the particular
circumstances of the case before it.” (Ibid.)
The juvenile court was not required to make a finding of
detriment to N.P. before declining to allow visitation at county
jail, but rather was required only to balance father’s interest in
visitation against N.P.’s best interests. Here, the juvenile court
considered the particular circumstances—father had already
attempted to coach N.P. about how to testify in court, and in
advance of father’s criminal proceedings about the circumstances
that gave rise to this dependency proceeding the juvenile court
did not want to place N.P. in that situation—and denied father’s
request that visitation be ordered at father’s place of
incarceration. As did the court in Jennifer G., we note that while
father does not “have the power to redefine the right to visitation,
[he] may petition the court to modify its order defining that right”
should the circumstances informing the juvenile court’s discretion
change. (Id. at p. 757; § 388.)
We conclude that the juvenile court applied the correct
standard to its determination whether to allow father visitation
in county jail in advance of father’s criminal proceedings; no
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finding of detriment under section 366.21, subdivision (h) was
required. And we find no abuse of the juvenile court’s discretion.
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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