In re M.S. CA2/3 ( 2020 )

Filed 12/10/20 In re M.S. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re M.S. et al., Persons Coming B302333
Under the Juvenile Court Law.
Los Angeles County
LOS ANGELES COUNTY Super. Ct. Nos.
DEPARTMENT OF CHILDREN 19CCJP06245A,
AND FAMILY SERVICES, 19CCJP06245B
Plaintiff and Respondent,
v.
MICHAEL S.,
Defendant and Appellant;
M.S., a Minor, etc., et al.,
Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Philip L. Soto, Judge. Reversed and
remanded, with directions.
Emery El Habiby, under appointment by the Court
of Appeal, for Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court
of Appeal, for Respondents M.S., a Minor, etc., and A.S., a Minor,
etc.
No appearance for Plaintiff and Respondent.
_________________________
INTRODUCTION
Father appeals from the juvenile court’s dispositional order
concerning visitation for father and his teenaged children, M.S.
and A.S. (children).1 Father contends the juvenile court abused
its discretion by failing to specify the frequency and duration
of visits in its order and placing sole discretion as to whether
any visits would occur in the hands of the children. We agree.
We thus reverse the visitation order and remand the matter
with directions to the juvenile court to enter a revised order.
BACKGROUND
The family was reported to the Los Angeles County
Department of Children and Family Services (Department) in
late August 2019 after father was arrested for domestic battery
on the children’s mother. Mother reported that father kicked
and struck her in the back while she was sleeping in A.S.’s room.
Father said he nudged mother in the rear/lower back to get her
to wake up. A.S. was in the room at the time, but M.S. was not
at home. Shortly after the incident, father moved out of the
family home to stay with paternal grandmother in San Diego.
A few days after the incident, Department social workers
interviewed the children at their respective schools. The children
1 M.S. was born in September 2002 and A.S. was born in
November 2005.
2
again were interviewed in October 2019 at home. M.S. described
father as an “abusive alcoholic.” He said father had been
drinking for about ten years. Both children stated father drinks
every night.
As for other incidents of domestic violence, M.S. told the
social worker that around June 2018, mother came into M.S.’s
room and told him that father had just hit her in the face. He did
not see father hit mother. M.S. later added that father promised
not to hit anyone after that incident.
M.S also recalled that when he was nine or 10 years old,
father tried to hit mother but accidentally hit A.S. A.S. described
the incident as happening when she got in bed with parents
after a nightmare. Father accidentally hit her on the head when
he got mad about something mother had said and tried to hit
mother.
M.S. denied father being abusive of him or A.S., but
remembered father pushed him onto the couch, causing him
to bump his head, after M.S. called father “stupid” when father
was drunk. M.S. later described father as having tried to take
a drunken swing at him when he was a sophomore in high school.
M.S. also described father as “ ‘verbally abusive’ ” to
mother. He has heard father call mother names. M.S. said
parents typically argued about financial issues. Mother had
quit her job when M.S. was born leaving father as the family’s
sole financial support. M.S. described father as getting “upset
with mother about not trying hard enough to find a job.” M.S.
understood father’s frustration, but did not think it excused
his behavior.
A.S. described the August 2019 incident to the Department
social worker. A.S. was at a desk in her bedroom and mother was
3
lying on the bottom bunk bed. Father kicked mother on the small
of her back, waking her up.2 Mother said, “ ‘I can’t believe you
kicked me in front of our daughter.’ ” Father left the room and
mother followed him. A.S. said that was the only time she
witnessed physical violence between her parents. However, A.S.
had “heard of father hitting mother.” Father hit mother once
when they were arguing, but A.S. did not see the altercation;
M.S. had told her to stay in her room. A.S. told the social worker
M.S. usually tried to stop the fight. A.S. also had heard father
call mother names. She denied father ever having hit her or
calling her names.
Neither child said they felt unsafe at home, but M.S. said
he felt unsafe when father is abusive to mother. A.S. said she felt
“ ‘wary’ ” when father is around. She said father would become
more aggressive when he was drinking. A.S. felt there was “less
stress” at home with father having moved out. She said that the
issues at home “ ‘stress[ed her] out.’ ”
The social worker spoke to father by telephone. Father and
mother have been married for 18 years, but he described their
relationship as having deteriorated over the last few months.
With respect to the incident leading to the Department’s
involvement, father said he was trying to help mother find work,
but she had not sent her resume to a job prospect yet. He said
he jostled mother awake with his foot and told her to send the
resume. According to father, mother woke up and accused him
of kicking her. He left the room and went to sleep in the living
room. When he woke up, the police were there.
2 During her October 2019 interview, A.S. said, “ ‘I guess he
kicked her.’ ”
4
Father denied past domestic violence, but admitted he
and mother call each other names during arguments. He denied
the other instances of abuse described by the children. Father
admitted law enforcement responded to an argument about eight
years ago, but nothing happened.
Father admitted he had several beers in the evenings after
work and said he drinks “ ‘pretty much’ on a daily basis.” He told
the social worker he had not had any alcohol since the incident
and is attending Alcoholics Anonymous (AA) meetings almost
daily in San Diego. Father had sent the children an email
and communicated with M.S. He did not have plans to see
the children.
Mother did not make herself available to be interviewed.
On September 20, 2019, the juvenile court authorized
the removal of the children from father. On September 25, 2019,
the Department filed a juvenile dependency petition on behalf
of the children under Welfare and Institutions Code3 section 300,
subdivisions (a) and (b), alleging the children were at substantial
risk of harm as a result of father’s violent conduct with mother,
his alcohol abuse, and mother’s failure to protect the children.
The juvenile court held a detention hearing on September 26,
2019.
At the hearing, the court detained the children from father,
and released them to mother’s care. The court ordered father
was to have monitored visitation and monitored telephonic
contact with the children. The court also ordered father could
have unmonitored text and email contact with the children, as
3 Statutory references are to the Welfare and Institutions
Code.
5
long as the messages were shown to a Department social worker.
Finally, the court granted mother’s request for a temporary
restraining order against father precluding him from contacting
mother or the children except for monitored visitation.
The Department filed its jurisdiction/disposition report
on October 24, 2019. In addition to what already has been
described, the Department reported mother’s description of her
marriage and the August 2019 incident. Mother said the August
2019 incident was the first time father had physically hit her.
She described father as having “ ‘hostility and anger.’ ” She said
he has had a drinking problem since before they were married.
At one point he was in an AA program and did not drink for
a year and a half. Mother did not intend to reunify with father
and planned to file for divorce.
By this time, father was attending AA meetings three times
a week in San Diego and reported he had not had any alcohol
since August 26, 2019. Father had not had any visits with
the children because they refused to see him. In October 2019,
M.S. expressed his frustration and disappointment with father’s
drinking. He told the social worker he did not want “to physically
see [father] until he has proven he is sober.” A.S. said she
wanted to have a relationship with father, but also did not want
to see him “ ‘until he has stopped drinking.’ ” Both children were
communicating with father via text.
The Department believed the family required its
involvement “to ensure mother can demonstrate protective
capacities and father maintains his sobriety.”
The jurisdiction and disposition hearing was held on
November 8, 2019. At the hearing, the court also considered
6
mother’s request to extend the temporary restraining order for
a permanent restraining order against father.
Father’s counsel asked that the petition be dismissed for
lack of a current risk of harm. Father filed a written statement
with the court in support of his position. By this time, father and
mother had separated and planned to divorce. Father stated he
had voluntarily relocated to San Diego where he intended to live
for the foreseeable future and had abstained from alcohol and all
other substances since August 26, 2019, before the Department
became involved. Father said he had been regularly attending
and participating in AA meetings three times per week and
offered the meeting sign-in sheets as evidence. Father also noted
the criminal misdemeanor charge filed against him in August
had been dismissed.
Father’s counsel informed the court that father was
communicating with the children through email and text, but
they did not wish to visit with him at this time. Father’s counsel
represented that father had indicated “he will respect their
wishes, and he has not sought visitation with the children.” In
his written statement, father acknowledged his “extreme regret
for the actions and behaviors that have led me and my family
to appear before this Court.” He stated that his children “are
intelligent, emotionally mature, well-rounded teenagers capable
of expressing their desires concerning visitation or any potential
custody issues: I will honor their wishes regarding issues of
visitation whether it be to forgo visitation or have visits in the
presence of a third person.”
After hearing argument, the juvenile court sustained
the petition as to father and declared the children dependents of
7
the juvenile court.4 The court removed the children from father
and released them to mother. The court ordered father was
to have monitored visits, and the children’s wishes were to be
taken into account regarding the visits.
The court then engaged in a long discussion with counsel
about the parameters and appropriateness of the restraining
order, and how to account for father’s visitation and
communications with the children. Counsel for the children—
who were not present at the hearing—informed the court that
the children were not ready to begin face-to-face visits with
father, but had asked for electronic communication with him.
The court agreed to include the children in the restraining
order, “with a carve out for monitored visitation with a neutral
monitor when they are ready to visit and unmonitored text
and emails.” The court ordered monitored visits to take place
in Los Angeles County “when [the children] are ready to visit.”
Addressing father directly, the court said, “Now, Dad, you are
going to have to be patient. I’m not going to make the children
visit until they are ready. But . . . again, the carve out will be
for allowing for unmonitored text and e-mails so long as they
are appropriate.”
As part of the court’s order, the court “set up a mechanism”
to enable father to come from San Diego to visit his children in
Los Angeles County “and with the anticipation that [the visits]
will be at a certain place at a certain time.” The court explained
there would be “no visits with the children until they say they are
ready. But when they say they are ready and Dad comes up to
4 At the hearing, the Department struck mother from the
petition.
8
LA County, I expect mother to cooperate and make sure that he
gets the visits that will be allowed under the order.”
The court then stated the terms of the order on the record,
including a three-year stay away order, no visits between father
and the children until the children are ready, but father could
contact the children through appropriate text and email. Visits
must take place in Los Angeles County, and mother was required
to take the children to the visits.
The November 8, 2019 minute order similarly reflected the
terms of father’s visitation. The court ordered monitored visits
and gave the Department discretion to liberalize the visits.
Additional terms are stated as: “Visits in a neutral setting[;]
[¶] Father not to visit or reside in the home[;] [¶] Mother not to
monitor his visits.” The court’s orders to the Department include
that, “Minors’ wishes to be taken into account re: visits,” and that
father was not to live or visit in the family home.
At the time of the November 8, 2019 jurisdiction and
disposition hearing, M.S. was 17 years old, and A.S was 14
years old.
DISCUSSION
Father’s sole contention on appeal is that the juvenile court
impermissibly delegated its authority over visitation by failing to
specify the frequency and duration of visits and placing the sole
discretion as to whether visits would take place with the children.
1. Father did not forfeit his right to challenge the
visitation order
As an initial matter, the children’s counsel argues father
forfeited his right to challenge the terms of the visitation order
because he failed to object to the trial court and “specifically
9
requested that no visits occur until the children were ready,
which the court adopted.”
Dependency matters are not exempt from the general rule
that a “reviewing court ordinarily will not consider a challenge
to a ruling if an objection could have been but was not made in
the trial court.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “The
purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected.” (Ibid.)
Father objected to the court’s declaring the children dependents
and asked the court to dismiss the matter “entirely.” After the
court sustained the petition, father’s counsel did not specifically
object to the visitation order, but she did note he had not had
a visit. Father’s counsel thus did not stand by “ ‘silently until
the conclusion of the proceedings.’ ” (In re C.M. (2017) 15
Cal.App.5th 376, 385.)
Nevertheless, “application of the forfeiture rule is not
automatic.” (In re S.B., supra, 32 Cal.4th at p. 1293.) When the
appeal involves an important legal issue, we may exercise our
discretion to consider the forfeited claim. (Id. at pp. 1293-1294
[Court of Appeal did not abuse its discretion in considering
challenge to visitation order, despite parent’s failure to object,
where trial court delegated authority to allow or prohibit
visitation to legal guardians].) Even if father did not properly
object to the juvenile court’s order, his challenge implicates an
important legal issue—whether the juvenile court impermissibly
abdicated its discretion to decide whether visitation will occur
at all. (In re S.H. (2003) 111 Cal.App.4th 310, 318-319 (S.H.)
[allowing third party to determine whether “any visitation will
occur” violates the separation of powers doctrine].)
10
We also disagree that father “requested that no visits occur
until the children were ready.” Rather, father acknowledged
the children did not wish to see him and agreed to honor their
wishes. That father did not want to force the children to visit
him, however, was not an agreement to permit the juvenile court
to give the children “de facto veto power” over all visitation.
(S.H., supra, 111 Cal.App.4th at p. 319.)
2. The visitation order must be revised
We review the juvenile court’s order setting visitation
terms for abuse of discretion. (In re Brittany C. (2011) 191
Cal.App.4th 1343, 1356.) Visitation between a noncustodial
parent and child is an important part of a reunification plan.
(§ 362.1, subd. (a)(1)(A).) “It is the juvenile court’s responsibility
to ensure regular parent-child visitation occurs while at the
same time providing for flexibility in response to the changing
needs of the child and to dynamic family circumstances.” ( S.H.,
supra, 111 Cal.App.4th at p. 317.)5
To maintain this flexibility, the juvenile court may
“delegate discretion to determine the time, place and manner
of the visits.” (In re Christopher H., supra, 50 Cal.App.4th at
p. 1009; S.H., supra, 111 Cal.App.4th at p. 317.) The “child’s
input and refusal and the possible adverse consequences if a visit
is forced against the child’s will are factors to be considered in
administrating visitation.” (S.H., at p. 317.) Nevertheless, the
“sole power to determine whether visitation will occur” lies with
the juvenile court. (Christopher H., at pp. 1008-1009; S.H., at
5 A court may deny visitation only if it would be harmful
to the child. (§ 362.1, subd. (a)(1)(B); In re Christopher H. (1996)
50 Cal.App.4th 1001, 1008-1009.)
11
p. 317.) When the court orders visitation, however, “it must
also ensure that at least some visitation, at a minimum level
determined by the court itself, will in fact occur.” (S.H., at
p. 313.) Thus, a juvenile court violates the separation of powers
doctrine when it “abdicates its discretion” by “permit[ting] a third
party, whether social worker, therapist or the child, to determine
whether any visitation will occur.” (Id., at pp. 317-318 & fn. 10
[noting a therapist may be permitted to determine when
visitation should begin].)
S.H. is instructive. There, the juvenile court ordered
monitored visitation for the mother, but because the children
feared their mother and had refused visits during their initial
detention, the visitation order specified, “ ‘if the children refuse
a visit, then they shall not be forced to have a visit.’ ” (S.H.,
supra, 111 Cal.App.4th at pp. 313, 316.) Division Seven of this
court reversed the order, finding it “impermissibly delegate[d]
to [the] children the authority to determine whether any visits
will occur.” (Id. at p. 313.) The court acknowledged the order
“affirmatively determine[d]” mother’s right to visitation “rather
than making [it] entirely contingent on the child’s consent.” (Id.
at p. 318.) It also noted the juvenile court made additional orders
designed to encourage visitation, including ordering counseling
for the children and for their mother. (Id. at pp. 318-319.)
Nevertheless, the court concluded that “by failing to mandate any
minimum number of monitored visits per month or even to order
that some visitation must occur each month, the [juvenile] court’s
abstract recognition of [the mother’s] right to visitation [was]
illusory, transforming the children’s ability to refuse ‘a visit’ into
the practical ability to forestall any visits at all.” (Id. at p. 319.)
12
We conclude the visitation order here similarly placed
the sole discretion as to whether any visitation would occur
in the hands of the children. As in S.H., the juvenile court here
affirmatively acknowledged father’s right to visitation. The
court also entered orders to facilitate visitation by creating “a
mechanism” for father to visit the children in Los Angeles County
“with the anticipation that they will be at a certain place at
a certain time.” As children’s counsel notes, the court ordered
“specific parameters” for father’s visitation. The court ordered
visits to be monitored at a neutral setting with a neutral monitor;
that, “[w]hen visits start,” mother must confirm the scheduled
visits 24 hours in advance with father; and that mother take
the children to the visits.
Like the order in S.H., however, the visitation order here
did not require any minimum number of monitored visits per
month or otherwise order some visitation to take place.6 (S.H.,
supra, 111 Cal.App.4th at p. 319.) Rather, the court ordered,
“no visits with the children until they say they are ready.”
Accordingly, the order essentially granted the children total
discretion to determine when visits would begin and whether
they would take place at all.
Although we agree the visitation order here was more
specific than that in S.H. by articulating how visits would occur
once they began, we disagree with the children’s counsel that
the order was sufficient “in the context of the family dynamics
at play” and father’s agreement “to forgo visitation” if that is
6 The court permitted father to communicate with children
through email or text, but, as father’s counsel noted, the children
could block father from their phone or delete his emails.
13
what the children wanted. Without providing guidance as to how
frequently visitation should occur, the juvenile court effectively
ceded its discretion to the children as to whether visits should
occur at all. (See In re Kyle E. (2010) 185 Cal.App.4th 1130, 1136
[reversing visitation order as improperly delegating authority
to determine whether visitation would occur at all where order
failed “to set a minimum number of visits or provide that
appellant could visit the minor ‘regularly’ ”]; In re Jennifer G.
(1990) 221 Cal.App.3d 752, 757 [“court must define the rights
of the parties to visitation,” including, “the frequency and length
of visitation”].)
We agree the children’s wishes must be taken into account,
particularly here where the children are teenagers who have
expressed they do not wish to visit their father, and father has
stated his desire to honor his children’s wishes. Nevertheless,
“while the juvenile court may allow the child to refuse to attend
a particular visit, to prevent the child from exercising a de facto
veto power, there must be some assurance that, should that
occur, another visit will be scheduled and actually take place.”
(S.H., supra, 111 Cal.App.4th at p. 319.) As the court in S.H.
so aptly stated, “In no event, however, may the child’s wishes be
the sole factor in determining whether any visitation takes place,
either as a formal matter or, as occurred in the case now before
us, by effectively giving the children the power to veto all visits.”
(Ibid.)
Here, the children’s wishes were the sole factor in
determining whether monitored visits with their father would
occur, making father’s right to visitation essentially illusory,
as was the mother’s in S.H. Even with the mechanism crafted
by the court in place, neither the Department nor father had any
14
way of ensuring visits would take place, such as by rescheduling
missed visits that the children decided not to attend. We
therefore conclude the juvenile court abused its discretion by
ordering no visits were to take place until the children “are
ready,” without providing any guidance as to how frequently
visitation should occur.
Our holding, however, does not preclude the juvenile court
from ordering the children’s wishes to be taken into account
with respect to scheduling visits with father, nor should it be
read to force children to visit with father. We hold only, as courts
have held before us, that the children’s wishes not be the sole
factor in determining whether any visitation takes place. (E.g.,
S.H., supra, 111 Cal.App.4th at p. 319; In re Julie M. (1999) 69
Cal.App.4th 41, 50-51 [child’s “aversion to visiting abusive parent
may be a ‘dominant’ factor in administering visitation” but not
“the sole factor”], citing In re Danielle W. (1989) 207 Cal.App.3d
1227, 1237.)
15
DISPOSITION
The portion of the November 8, 2019 order regarding
father’s monitored in-person visitation with the children
is reversed. The matter is remanded to the juvenile court
with directions to conduct further proceedings to revise the
dispositional order to sufficiently define father’s visitation rights
by including the frequency and/or minimum amount of father’s
visits with the children.7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
7 M.S. has now reached age 18. If the juvenile court has
terminated its jurisdiction over M.S. due to his age, the visitation
order should be revised as to A.S. only.
16