In re K.M. CA2/2 ( 2023 )

Filed 7/27/23 In re K.M. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re K.M., a Person Coming B325978
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 20CCJP02157A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MARK M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Senior Deputy County
Counsel, for Plaintiff and Respondent.
******
This is the third appeal by Mark. M. (father) in this
juvenile dependency case. This appeal challenges the juvenile
court’s orders terminating dependency jurisdiction over his
daughter, K.M., and issuing an exit order that granted K.P.
(mother) sole custody and limited father’s visitation.1 His
challenges to these orders ignore the record or ignore the law,
and accordingly lack merit. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Because we are issuing our opinion in father’s second
appeal simultaneously with this opinion, we hereby incorporate
Sections I through IV (on pages 3 through 10) of the Facts and
Procedural Background section from K.M. II, and will not restate
them here; we will number the sections herein as if they are a
1 Father’s second appeal—which we consider simultaneously
with this one—challenges the juvenile court’s orders retaining
dependency jurisdiction. (In re K.M. (July 27, 2023, B321344)
[nonpub. opn.] (K.M. II).) Thus, father is taking the
fundamentally inconsistent position that the same court in the
same case erred in retaining and terminating jurisdiction over
the same child.
2
continuation of the Facts and Procedural Background section in
K.M. II.
V. Father’s Conduct Giving Rise to Termination of
Jurisdiction and Exit Order
A. The Department recommends terminating
jurisdiction
In advance of the progress hearing the juvenile court had
set for October 13, 2022, the Los Angeles Department of Children
and Family Services (the Department) filed a last minute
information report. In that report, the Department
recommended that the juvenile court terminate jurisdiction, give
mother sole legal and sole physical custody of K.M., and grant
father biweekly monitored visits. This recommendation rested in
part on the Department’s view that father’s “relationship” with
K.M. was “emotionally unhealthy.” Despite being ordered not to
yell at or harass K.M., father continued to do so: K.M. reported
that father “raised his voice” at her, called her “‘bad names,’” and
then proceeded to say “horrible things about” mother; father
abruptly ended a visit due to K.M.’s “‘nasty ass attitude,’” which
he blamed on mother and the Department; father antagonized
K.M. for “not calling him daily” (even though father was granted
only weekly telephonic visits); and father called K.M.’s school to
pull K.M. out of classes for an in-person or telephonic visit. Even
when father was not yelling at or harassing K.M., he was always
“‘mad’” and “angry” during his visits with K.M. Father’s conduct
made K.M. “extremely distraught.” The Department observed
that father’s “angry outbursts” were related to his need to
“control” every situation. Father also had not finished his court-
ordered domestic violence class or enrolled in conjoint counseling
with K.M.
3
B. Mother files a section 388 petition
Echoing the Department’s recommendation, mother filed a
petition under Welfare and Institutions Code section 3882 one
week later asking the juvenile court to terminate dependency
jurisdiction, give mother sole physical and legal custody of K.M.
and limit father’s educational rights, and limit father to a two-
hour monitored visit every other week. Mother alleged,
consistent with the Department’s prior reports, that K.M. “dreads
contact” with father, “has anxiety when she is required to visit,”
and is “humiliated” by his “harassment of the school.”
C. The juvenile court holds a progress hearing
The juvenile court convened the progress hearing on
October 13, 2022.
Because the Department’s last minute information report
“substantiat[ed] the same claims” made by mother in her section
388 petition, the court found it appropriate to “go forward” with a
hearing on mother’s petition. The court also advanced the section
364 review hearing set for November 30, 2022 and vacated it.
Father objected, and argued that (1) the court was procedurally
required to set a noticed, contested hearing on mother’s petition,
and (2) he was entitled to call K.M. as a witness. The court
rejected both arguments. As to the timing of the hearing, the
court found that (1) “exigency”—namely, “the impact on [K.M.’s]
mental health”—necessitated hearing mother’s section 388
petition that day, and (2) a “detriment finding” could be made by
the court “at any time.” As to K.M. testifying, the court found
that (1) it would be “detrimental” to force her to testify, and (2)
her testimony was also not “necessary.”
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
4
The juvenile court granted mother’s section 388 petition.
The court observed that father’s “behavior is out of control” and
that he was “terrorizing” K.M. (Father’s conduct during the
hearing seemingly confirmed the court’s observations, as father
twice “hung up” on the court during the remote hearing.) The
court found that father’s “out of control and domestic violence
perpetrator behavior” constituted a change in circumstances.
The court further found that it was in K.M.’s “best interest” to
grant the petition.
The court thus issued (1) an order terminating jurisdiction
over K.M., and (2) an exit order granting mother sole legal and
physical custody of K.M., granting mother exclusive educational
rights, and according father one hour of monitored visitation per
month because “father’s actions” caused the court to find it would
be “detrimental for him to have any more visitation” than that.
However, the court retained jurisdiction pending “receipt of the”
exit order, and the exit order (Judicial Council form JV-200)
directed the “clerk of the juvenile court” “to transmit th[e] order
within 10 calendar days to the clerk” of the family court.
D. The juvenile court stays or vacates its orders
four days later
After further reflecting on father’s procedural objections
and ostensibly finding them to be well-taken, the juvenile court
stayed or “vacated” its termination order and its exit order on
October 17, 2022. The court simultaneously set a contested
hearing on mother’s section 388 petition for November 17, 2022
and advanced to that same date the section 364 review hearing
previously set for November 30, 2022. All parties received notice
of the November 17, 2022 hearing. The court also made a
5
“temporary detriment finding” to suspend father’s visits with
K.M. pending that subsequent hearing.
E. The juvenile court holds a contested hearing on
November 17, 2022
At the combined review hearing and evidentiary hearing on
mother’s section 388 petition, the court admitted a new last
minute information report in which the Department relayed that
father’s “anger is getting worse with each visit” with K.M. and
that father “continues to escalate his anger,” so much so that
K.M. “does not want to visit father ‘at all’” because he is “always”
“mad” and “yelling” at her “for no reason.” Father also
“demonstrated escalated irate behaviors” with the Department’s
staff by calling every secretary’s extension between 10 and 15
times every day, raising his voice, using profanity, and even
making ominous threats.3
Father took the stand to testify, but provided only a few
minutes of testimony before the juvenile court ordered him
escorted from the courtroom following a “threatening and
aggressive and inappropriate” “outburst” while on the stand.
The court granted mother’s section 388 petition. The court
found changed circumstances—namely, father “repeatedly”
showing that he “harass[es]” and is “emotionally abusive” toward
K.M., as well as toward “school officials” and “Department staff,”
and that he has “no accountability or responsibility for his
3 Two social workers requested a restraining order against
father for his harassing and intimidating conduct, including his
threatening statements like “This is not over yet . . .” and “God
forbid I see you in person.” After issuing a temporary restraining
order and holding a hearing, the juvenile court granted the
restraining order.
6
actions.” The court also found it in the “best interest” of K.M. for
K.M. to have no unmonitored contact with father given his
“abusive and emotionally damaging behaviors.” The court
terminated jurisdiction pending an exit order being finalized at
the next hearing scheduled for December 14, 2022.
F. Father moves to vacate the juvenile court’s
November 17, 2022 orders
On December 12, 2022, father filed a motion to vacate the
juvenile court’s orders on the ground that the court already
terminated jurisdiction back on October 13, 2022 and therefore
was divested of the ability to make any further findings or orders.
The court denied father’s motion at the December 14 hearing.
G. The juvenile court’s termination and exit orders
take effect
The court lifted its stay on the termination order on
December 15, 2022, the date the exit order was finalized by the
court (because the parties could not agree on the terms at the
December 14 hearing). The exit order awarded mother sole legal
custody and sole physical custody of K.M., and granted father one
monitored visit per month “in a therapeutic setting in conjoint
counseling when [the] therapist” to be selected by mother
“determines it is appropriate.”4
VI. Father Appeals
Father appealed from the juvenile court’s “findings and
orders” made at the October 13, November 17, December 14, and
December 15, 2022 hearings.
4 The juvenile court also extended mother’s restraining order
against father by two additional years, but that ruling is not
challenged on appeal.
7
DISCUSSION
In this appeal, father raises what boils down to four
arguments.5 Specifically, he argues that (1) the juvenile court
violated the dependency statutes and his constitutional right to
due process by issuing its order terminating jurisdiction and its
exit order without first setting the matter for a properly noticed
contested hearing; (2) the court violated the dependency statutes
and his constitutional right to due process by refusing to allow
K.M. to testify; (3) the court removed K.M. from his custody
without making valid removal findings; and (4) the court’s exit
order improperly delegates to K.M.’s therapist the authority to
determine whether father could visit K.M.
5 Father makes two more arguments. He makes a threshold
argument that we must vacate all orders at issue in this appeal if
we find his second appeal (K.M. II) has merit; because father’s
second appeal is meritless, we necessarily reject that argument.
He makes the concluding argument that we must remand this
case to a different bench officer if we find further proceedings are
warranted; because we are affirming, we necessarily reject this
argument as well.
Father filed his reply brief late, and notwithstanding our
rejection of his request for an extension of time to file that brief.
Given that father’s counsel also filed the reply brief in the
companion appeal late, there appears to be a pattern of
disregarding this Court’s deadlines. We would be well within our
authority to strike the late-filed reply brief in this case.
However, to avoid punishing father for his counsel’s
transgressions, we allowed the reply brief to be filed, have
considered its arguments on their merits, and find them to lack
merit for the reasons set forth in the text.
8
I. Was Father Denied Prior Notice?
Father argues that the juvenile court’s December 2022
orders terminating dependency jurisdiction over K.M. and the
accompanying exit order are invalid because the court—on
October 13, 2022—violated father’s statutory rights and right to
due process. Father’s argument has two steps: (1) a parent has a
right to prior notice before a juvenile court conducts a contested
hearing in support of a section 388 petition or any section 364
review hearing, and (2) father was denied those rights when the
juvenile court held a contested hearing on October 13, 2022
regarding mother’s petition and held a review hearing without
giving father prior notice of its intention to conduct those
hearings on that day. These are arguments involving questions
of constitutional law or the application of constitutional or
statutory law to undisputed facts; as such, our review is de novo.
(In re Taylor (2015) 60 Cal.4th 1019, 1035 (Taylor) [constitutional
questions]; Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th
556, 568 [constitutional questions of notice]; People ex rel. Lockyer
v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 (Lockyer)
[application of law to undisputed facts]; In re R.C. (2011) 196
Cal.App.4th 741, 748 (R.C.) [same].)
The first premise of father’s argument—namely, that father
has the right to prior notice—is correct. A party to a juvenile
dependency case may file a petition under section 388 seeking to
“change, modify, or set aside” an existing juvenile court order or
to “terminate the jurisdiction of the court.” (§ 388, subd. (a)(1).)
Where, as is uncontested with respect to mother’s petition, a
section 388 petition sets forth a prima facie case for a relief, the
court must “order that a hearing be held” and “shall give prior
notice” of that hearing to all affected parties, including the
9
parents. (§§ 388, subd. (d), 386, 297, subd. (c)(1); Cal. Rules of
Court, rule 5.570(e) & (g)(2); accord, §§ 302, subd. (b), 385, 386;
see also In re Kelley L. (1998) 64 Cal.App.4th 1279, 1284 (Kelley
L.) [“notice to a parent is required for hearings pursuant to
section 388”]; In re Andrew A. (2010) 183 Cal.App.4th 1518, 1528
[same]; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92,
111-112 & fn. 16 [same].) Where a juvenile court is exerting
jurisdiction over a child that remains in the home of a parent,6
the court is required (1) to hold periodic review hearings under
section 364 to assess whether “conditions still exist which would
justify initial assumption of [dependency] jurisdiction” or are
“likely to exist if [juvenile court] supervision is withdrawn” (§
364, subds. (a) & (c)); and, if it determines jurisdiction is no
longer justified, (2) to issue an exit order fixing the terms of
custody and visitation and transferring the case to the family
court (§ 362.4; In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123;
In re Michael W. (1997) 54 Cal.App.4th 190, 194-195 (Michael
W.)). Because a party is entitled to present evidence at a hearing
preceding an exit order and because an exit order may be entered
at a section 364 review hearing, the parties have a right to
present evidence—and a concomitant right to prior notice of a
section 364 review hearing—before such a hearing may be
conducted. (Michael W., at pp. 194-195; In re R.F. (2021) 71
Cal.App.5th 459, 471, 473 (R.F.); Kelley L., at pp. 1284-1285 & fn.
9.) Due process also guarantees parents in dependency
proceedings the right to prior notice. (In re Mia M. (2022) 75
6 As we discussed in K.M. II, given the lack of clarity as to
whether section 364 or section 361.2 applies to the circumstances
here, we have assumed that section 364—and its standard that is
more favorable to father—applies here.
10
Cal.App.5th 792, 807 [“‘due process requires parents be given
notice that is reasonably calculated to advise them an action is
pending and afford them an opportunity to defend’”]; R.F., at p.
470 [due process in dependency litigation is “‘focused principally
on the right to a hearing and the right to notice’”].)
However, the second premise of father’s argument—
namely, that father was denied his statutory and constitutional
rights to prior notice—is incorrect. Although the juvenile court
did not give father prior notice before it conducted—on October
13, 2022—a contested hearing on mother’s section 388 petition
and advanced the section 364 review hearing, the court corrected
its misstep by subsequently staying or vacating the orders made
at that hearing and thereafter conducting—on November 17,
2022—a properly noticed contested section 388 petition hearing
and section 364 review hearing. Indeed, father does not deny
that the prior notice given for the November 17, 2022 hearing
was proper, or that he actively participated in that hearing by
presenting evidence.7 Thus, father was not denied his right to
prior notice. And even if we assume that he was denied that
right, the court’s subsequent conduct in correcting its misstep
renders that misstep harmless under any standard: There is zero
possibility that father would have obtained a more favorable
result if he had been given prior notice because we know that,
after a subsequent hearing with proper prior notice and where
father put on evidence, the juvenile court came to the same
7 The Department urges that the juvenile court’s subsequent
acts render father’s appeal moot. We exercise our “‘inherent
discretion’” to entertain father’s ostensibly moot challenge to the
October 13, 2022 orders. (In re D.P. (2023) 14 Cal.5th 266, 276,
282, 285-286.)
11
conclusion—namely, that father’s anger and control issues
warranted the termination of dependency jurisdiction and an exit
order placing K.M. in mother’s sole custody. Father’s entreaty
that we view any due process misstep—even one that was later
remedied—to be reversible per se defies common sense as well as
binding Supreme Court precedent. (In re Celine R. (2003) 31
Cal.4th 45, 59-60 [harmless error analysis applies in dependency
cases]; In re James F. (2008) 42 Cal.4th 901, 915-916, 918 [same];
R.F., supra, 71 Cal.App.5th at p. 474 [same]; In re Christopher L.
(2022) 12 Cal.5th 1063, 1081 [automatic reversal rule should not
be applied to “errors that do not invariably lead to fundamental
unfairness” because doing so “would exact a particularly steep
cost”].)
Father resists our conclusion with what boils down to three
arguments.
First, father argues that the juvenile court did not correct
its misstep because the court’s October 17, 2022 order staying or
vacating the termination and exit orders is itself void because the
court on October 13, 2022 terminated its own jurisdiction and
thereby deprived itself of the authority to issue any further
orders in the case.
Father is wrong. To be sure, after a dependency proceeding
has been terminated, a juvenile court no longer has jurisdiction
and may not take any further action in the proceeding. (In re
A.S. (2009) 174 Cal.App.4th 1511, 1514-1515; In re Sarah M.
(1991) 233 Cal.App.3d 1486, 1504, overruled on other grounds in
In re Chantal S. (1996) 13 Cal.4th 196, 204 (Chantal S.).)
According to father, the juvenile court’s issuance of the exit order
on October 13, 2022 instantaneously deprived the court of all
jurisdiction. This is incorrect for a few reasons.
12
To begin, a dependency proceeding of the type here is not
terminated until the exit order is transmitted to the clerk of the
family court within a 10-day window (§ 362.4, subd. (b); Cal.
Rules of Court, rule 5.700(b)(2)), and we can presume that the
juvenile court fulfilled its official duty to transmit that order by
the end of that window (Evid. Code, § 664). The court’s October
17, 2022 order was entered only four days into that 10-day
window, and father—as the party with the burden of proof on
appeal—has pointed to nothing in the record showing that the
exit order here was transmitted to the family court prior to
October 17, 2022. (See generally People v. Hopson (2017) 3
Cal.5th 424, 461 (dis. opn. of Cantil-Sakauye, C.J.) [noting “most
fundamental rule of appellate law” that appellant bears the
burden of showing error].) By not objecting to the court
conducting the November 17, 2022 contested hearing (and by
actively participating in that hearing), father’s contemporaneous
conduct reaffirms that the October 13, 2022 order had not been
transmitted to the family court prior to October 17, 2022, and
that the juvenile court still had jurisdiction over this case. There
is also no evidence that the family court ever accepted
jurisdiction.8
Next, father’s contention at oral argument that the court’s
October 17, 2022 order staying or vacating the termination and
exit orders was ineffectual because it was oral—and that this oral
order was not memorialized in a minute order or a written order
8 At oral argument, father for the first time asked this court
to grant him the opportunity to obtain discovery regarding the
family court’s action vis-à-vis this transfer. We recognize our
authority to hear any such newly gathered evidence (Code of Civ.
Proc., § 909), and exercise our discretion to decline this request.
13
using identical “stayed” or “vacated” language—lacks merit. The
court did issue a minute order, and that order states that K.M.
“remains a dependent of the Court” and sets a new contested
hearing on mother’s section 388 petition. This order necessarily
implies that the juvenile court vacated the prior order (because
there would be no other way in which K.M. would remain a
dependent) and confirms what the court orally announced to all
parties at the October 17, 2022 hearing.
Further, had the juvenile court’s jurisdiction over K.M.
terminated instantaneously, K.M. would be in a jurisdictional
limbo during the 10-day window pending transmission of the exit
order to the family court. We decline to read the dependency
statutes to create such a limbo.
Finally, as noted above, even if the juvenile court’s October
17, 2022 order was void, the November 17, 2022 hearing still
establishes that the deficiency in notice prior to the October 13,
2022 hearing was harmless.
Second, father argues that he had no “meaningful notice” of
the basis for the juvenile court’s rulings because the notice of
hearing served by the Department for the October 13, 2022
progress hearing did not identify the Department’s
recommendations that jurisdiction be terminated and mother be
granted sole custody of K.M. Again, father is wrong. Not only
does this argument ignore the juvenile court’s orders staying or
vacating the October 13, 2022 orders, but this argument
completely ignores that the Department—in last minute
information reports filed in advance of both the October 13 and
November 17, 2022 hearings—set forth its recommendation to
terminate jurisdiction and grant father only limited visitation,
along with the detailed reasons for that recommendation.
14
Third, father argues that the juvenile court was not
permitted to rely on exigent circumstances to advance the review
hearing and consider mother’s petition on October 13, 2022
without prior notice. But the court’s reasoning expediting those
matters is irrelevant because, as noted above, the court
subsequently stayed or vacated those orders four days later, and
made an interim finding suspending father’s visits until a
properly noticed hearing could be conducted.
II. Did the Juvenile Court Abuse Its Discretion in Not
Allowing Father to Call K.M. as a Witness?
Although parents have a due process right to cross-examine
and confront witnesses during dependency proceedings (In re
Amy M. (1991) 232 Cal.App.3d 849, 867-868 (Amy M.)), that right
is less than “‘full-fledged’” (J.H. v. Superior Court (2018) 20
Cal.App.5th 530, 536); a juvenile court retains discretion to
preclude live testimony from a child witness where “[(1)] the
child’s desires and wishes can be directly presented without live
testimony, [(2)] where the issues to be resolved would not be
materially affected by the child’s testimony, and [(3)] where it is
shown that the child would be psychologically damaged by being
required to testify” (In re Jennifer J. (1992) 8 Cal.App.4th 1080,
1089 (Jennifer J.); see also In re Daniela G. (2018) 23 Cal.App.5th
1083, 1086-1087 (Daniela G.); In re Juan H. (1992) 11
Cal.App.4th 169, 172-173; cf. Amy M., at pp. 863-865 [error to
exclude child witness where there was no substitute for his
material testimony on disputed issue]). We review a juvenile
court’s exclusion of a child’s testimony for abuse of discretion, and
review any subsidiary factual findings for substantial evidence.
(Daniela G., at p. 1090; Jennifer J., at p. 1088.)
15
The juvenile court did not abuse its discretion in denying
father’s request to call K.M. as a witness.
To begin, to the extent father urges error because the
juvenile court did not consider having K.M. testify in chambers,
father has forfeited that argument by not asking the juvenile
court for such an accommodation. (Daniela G., supra, 23
Cal.App.5th at p. 1090.) Father responds that his forfeiture
should be excused because he would have requested that
procedure “in writing” had he been given prior notice that the
court would consider terminating jurisdiction at the October 13,
2022 hearing, but an oral request would have sufficed and, more
to the point, father did not ask for in-chambers testimony at the
subsequent hearing on November 17, 2022, for which father was
given prior notice.
The juvenile court’s order denying father’s request to call
K.M. as a witness was not an abuse of discretion in any event
because substantial evidence supports the findings that (1) K.M.’s
wishes were presented, often verbatim, in the Department’s
reports (cf. Amy M., supra, 232 Cal.App.3d at pp. 865-866 [error
not to allow testimony where no reports were based on child’s
own articulation of their views]); (2) K.M.’s testimony would not
materially affect the pending issues (In re Jacob P. (2007) 157
Cal.App.4th 819, 832 [child’s wishes “cannot be dispositive”]; In
re Patrick S. (2013) 218 Cal.App.4th 1254, 1265 [same, “even
when that child is a teenager”]); and (3) K.M. would be “further
traumatize[d]” from testifying considering father’s uncontested
emotional abuse against her.
Father responds with several contentions that reduce to a
single argument. He argues that he was entitled to elicit
testimony from K.M. “firsthand” to rebut the “self-serving”
16
characterizations in mother’s petition that father’s behavior was
harmful to K.M.’s “mental health” and to uncover that K.M. had
been “coach[ed].” Father ignores that there was already ample
evidence in the Department’s reports—and exhibited by father
himself in the courtroom—substantiating the claims in mother’s
petition that father’s fixation on control and unchecked anger
was damaging to K.M.’s well-being. What is more, the juvenile
court ordered the Department to interview K.M. in a neutral
location to root out any inappropriate coaching; there was none.
III. Did the Court Improperly Remove K.M.?
Father argues that K.M. was removed from him on October
13, 2022—when the juvenile court initially granted mother’s
section 388 petition, terminated jurisdiction, and issued an exit
order placing K.M. in mother’s sole custody—without first
making removal findings. To the extent this issue involves the
interpretation of statutes or the application of law to undisputed
facts, our review is de novo (Lockyer, supra, 24 Cal.4th at p. 432;
R.C., supra, 196 Cal.App.4th at p. 748); to the extent it involves
the evaluation of factual findings, we review only for substantial
evidence (In re R.T. (2017) 3 Cal.5th 622, 633). Father’s
argument lacks merit for two reasons.
First, although a juvenile court may not remove a child
from her parent unless the court has found, by clear and
convincing evidence (and as pertinent here), that “[t]here is or
would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the [child] if the
[child] were returned home” (§ 361, subd. (c)(1)),9 this standard
9 Section 361, subdivision (c)(1), also requires a finding that
there are no reasonable means short of removal that would
17
does not apply when a court is deciding whether to terminate its
jurisdiction at a section 364 review hearing (or issuing an exit
order). (In re J.M. (2023) 89 Cal.App.5th 95, 113-115 (J.M.) [so
holding, and rejecting an argument identical to father’s].)
Although J.M. was decided weeks before father filed his opening
brief and months before he filed his late-filed reply brief and
notice of additional authority, father nowhere cites this on-point
but adverse precedent.
Second, even if a court were required to make a removal
finding when issuing an exit order upon terminating jurisdiction,
the juvenile court here made that finding. On October 13, 2022,
the court explicitly “ma[de] a detriment finding” that warranted
limiting father to one hour of visitation per month, and on
October 17, 2022, made a further “temporary detriment finding”
before reinstating its original order on November 17, 2022. A
finding that a child would suffer “detriment” if placed with a
parent is equivalent to a finding that “[t]here is or would be a
substantial danger” to the child’s health and well-being within
the meaning of the removal statute. (J.M., supra, 89 Cal.App.5th
at p. 113 [treating the two as interchangeable].) Although the
juvenile court did not expressly make its finding “by clear and
convincing evidence,” we may infer that the court is aware of the
requirement to do so and made its finding by that standard of
proof (e.g., People v. Asghedom (2015) 243 Cal.App.4th 718, 725
[appellate courts must infer trial court applied proper standard of
proof absent evidence to contrary]), and we conclude that any
failure to do so is harmless beyond a reasonable doubt in light of
protect the child’s health, but father does not fault the juvenile
court for not making that finding.
18
the overwhelming evidence of father’s abusive and controlling
behavior.
IV. Was the Therapist Improperly Delegated Judicial
Power Over Visitation?
Father argues that the exit order must be reversed because
the juvenile court improperly delegated power over his visitation
with K.M. to K.M.’s therapist.
A visitation order that actually or effectively allows a third
party—including social workers, therapists, or the child herself—
to decide whether visitation occurs at all is impermissible
because it erroneously delegates the judicial power to decide
visitation. (In re S.H. (2003) 111 Cal.App.4th 310, 317-319; In re
Julie M. (1999) 69 Cal.App.4th 41, 48-49; In re Korbin Z. (2016) 3
Cal.App.5th 511, 516-517; In re Hunter S. (2006) 142 Cal.App.4th
1497, 1504-1508.) However, a juvenile court may delegate the
responsibility to manage details of visitation, such as the time,
place, and manner of the visit. (In re Moriah T. (1994) 23
Cal.App.4th 1367, 1374-1376.) Although we independently
review the legal question whether a juvenile court has
unconstitutionally delegated its judicial power (see Taylor, supra,60 Cal.4th at p. 1035 [constitutional questions reviewed de
novo]), we review orders setting the terms of visitation for an
abuse of discretion (In re Brittany C. (2011) 191 Cal.App.4th
1343, 1356; Bridget A. v. Superior Court (2007) 148 Cal.App.4th
285, 300).
The juvenile court did not impermissibly delegate its
authority to fix parental visitation. The exit order explicitly fixed
the frequency of visits when it specified that father would visit
K.M. once per month “in a therapeutic setting in conjoint
counseling when [K.M.’s] therapist determines it is appropriate.”
19
The only aspect of visitation delegated to the therapist was when
the court’s order authorizing visitation takes effect. This more
limited delegation is not impermissible. In Chantal S., supra, 13
Cal.4th at pp. 213-215, our Supreme court upheld as valid—and
not an impermissible delegation—a juvenile court order that
predicated visitation upon a therapist’s finding that the parent
has made “satisfactory progress.” As in Chantal S., the juvenile
court made visitation contingent upon the therapist’s
determination of when such visits would be “appropriate” (no
doubt due to the progress of both father and K.M. in their
therapy); indeed, making visitation contingent upon a therapist’s
finding of propriety ostensibly grants father a “windfall” because,
just like in Chantal S., the court here “would have been within its
discretion to simply deny father any visitation.” (Id., at p. 214; In
re C.S. (2022) 80 Cal.App.5th 631, 640-641 [no improper
delegation where “therapist’s only role . . . was to decide when it
was safe for visits to begin”]; cf. In re Donnovan J. (1997) 58
Cal.App.4th 1474, 1477-1478 [improper delegation where order
“neither requires that the therapists manage visitation . . . nor
sets criteria . . . to inform the therapists when visitation is
appropriate”].)
20
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
21