In re A.C. CA4/1

Filed 9/10/20 In re A.C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
In re A.C., a Person Coming Under
the Juvenile Court Law.
SAN MATEO COUNTY HUMAN
SERVICES AGENCY, A159351
Plaintiff and Respondent,
v. (San Mateo County
T.C., Super. Ct. No. 17JD0799)
Defendant and Appellant.
This juvenile dependency appeal is before us for the second time. T.C.
(father) challenges the juvenile court’s exit order pursuant to Welfare and
Institutions Code section 362.4 granting him one hour of supervised
visitation every six months with his 15-year-old daughter, A.C.1
The juvenile court issued the challenged order on remand after this
court, in a prior nonpublished opinion, reversed a visitation order that
improperly delegated to A.C. or her therapist the authority to decide whether
or not to have any visitation with father. (In re A.C. (July 29, 2019, A154176)
at pp. 15–16 (A.C. I).) In this prior opinion, we also affirmed the juvenile
Unless otherwise stated, all statutory citations below are to the
1
Welfare and Institutions Code.
1
court’s dispositional findings and orders that (1) sustained multiple
allegations of sexual, physical and emotional abuse of A.C. by father;
(2) placed A.C. in the sole physical and legal custody of her mother; and
(3) terminated the court’s dependency jurisdiction. (Id. at pp. 11–12.)
In the present appeal, father contends the juvenile court’s refashioned
visitation order is an abuse of discretion and contrary to our holding in A.C. I.
For reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the name of judicial efficiency, we limit our recitation of the facts to
those relevant to the present appeal. A more complete statement of the
procedural and factual background of this matter may be found in our
previous opinion. (A.C. I, supra, A154176, at pp. 2–10.)
In A.C. I, we upheld the juvenile court’s findings that A.C., then age 13,
came under section 300, subdivision (b)(1), because father:
(1) inappropriately touched or attempted to touch A.C.’s breasts over her
clothing on three occasions between October 2016 and July 2017; (2) stared at
A.C. while she was changing her clothing over her protestations; (3) made
inappropriate sexualized comments regarding A.C.’s legs and breasts;
(4) threw A.C. to the ground and then grabbed and lifted her by her face; and
(5) threatened to “ ‘ “slap her butt until it turns red.” ’ ” (A.C. I, supra,
A154176, at pp. 2, 12.) We also upheld the court’s finding that A.C. came
under section 300, subdivision (c) because she was suffering or had suffered
serious emotional damage (including fear and anxiety) as a result of father’s
repeated acts of sexual abuse and his aggressive and emotionally abusive
behavior during his 11-year family court battle with A.C.’s mother. (Id. at p.
12.)
2
In A.C. I, we reversed, however, the juvenile court’s visitation order,
concluding that, as stated, the order improperly “le[ft] solely in A.C.’s hands
the authority to decide whether to visit father.”2 (A.C. I, supra, A154176, at
p. 14.) We therefore remanded the matter to the juvenile court with the
following explanation: “As several courts—and witnesses in this case—have
observed, maintaining some sort of relationship between parent and child is
healthy and beneficial for both individuals. Yet, based on A.C.’s traumatic
experiences as both a victim of father’s abuse and a child of parents’ high-
conflict divorce, she more than likely will not decide on her own to visit
father, at least not in the near term. . . . ‘(See also In re Brittany S. (1993) 17
Cal.App.4th 1399, 1407 [22 Cal.Rptr.2d 50] [“By not providing visitation, SSA
virtually assured the erosion (and termination) of any meaningful
relationship between Sheri and Brittany.”].)’ (In re Julie M. [(1999)] 69
Cal.App.4th [41,] 50.) [¶] Clearly, the juvenile court was appropriately
focused here on A.C.’s best interests and ‘on the elimination of conditions
which led to [its] finding that [she] has suffered, or is at risk of suffering,
harm specified in section 300.’ [Citation.] However, the appropriate course of
action is for the juvenile court to maintain this focus while crafting a
visitation order that leaves the ultimate decision to grant or deny visitation
under its control while delegating to the agency the authority to manage the
details of such visitation.” (Id. at pp. 14–15.)
On remand from this court, the juvenile court then held a special
hearing on visitation. In anticipation of this hearing, the San Mateo County
Human Services Agency (agency) filed an interim report. This report noted
2 The juvenile court’s visitation order of April 2018 authorized
“visitation between the child and father, if and when [A.C.] is ready, and the
initial visitation must be therapeutically supervised.” (A.C. I, supra,
A154176, at p. 22.)
3
that A.C. had “flourished in her mother’s care since dismissal of [the] matter
in April 2018” and that A.C. had no present interest in having contact with
father “given his history of emotional abuse and sexually inappropriate
behavior, and the anxiety she experiences regarding the possibility of future
maltreatment if forced to interact with him.” The agency recommended that
“supervised visits occur once every three months, for one hour, and that these
visits take place in the neutral setting of a visitation center. It is also
recommended that the father pay for the cost of supervised visitation, and
that there be no contact between the father and child other than at these
visits.”
At the January 9, 2020 hearing, father objected to the admission or
consideration of the agency’s report on the ground that it contained new
evidence, which was improper on remittitur. The juvenile court ruled that
the report would be admitted only for the purpose of providing an update on
A.C.’s well-being and not for the purpose of refashioning the visitation order.
Father also argued against the agency’s visitation recommendation on
the ground that it “violates the spirit” of A.C. I. Instead, father asked for
weekly therapeutic visits with A.C.
A.C. then provided a statement to the court that she was not yet ready
to see father, explaining: “I . . . am scared of him and still nervous. And I
still feel very uncomfortable even being close to him. And every time I write
something or I think about him I begin shaking.”
At the conclusion of the January 9, 2020 hearing, the juvenile court
ruled as follows: “I am going to follow the recommendations of the agency,
with the following modification. Instead of having visitation every three
months for one hour at a time, it will be every six months for one hour at a
time. [¶] This allows the child to have contact with the father and the father
4
to have contact with the child, under the supervision of the center. It
presents some spacing so that both the father and child can re-evaluate
what’s going on in visitation. And at the next visitation they can determine
whether—how that next visitation is going to go. But I think once every six
months is within the spirit of the Appellate order that was remanded to this
court. But it’s to—and it still gives the father and child contact.”
In a subsequent written order, filed January 20, 2020, the juvenile
court provided four reasons for the limited supervised visitation between A.C.
and father: (1) the four allegations of sexual, physical and emotional abuse
were sustained in April 2018; (2) there is a history of a volatile relationship
between father and A.C.; (3) A.C. “has fear and anxiety about visitation with
the father”; and (4) father has been resistant to therapeutic services.
Father promptly filed a notice of appeal of the juvenile court’s
January 9, 2020 order.
DISCUSSION
The sole issue before us is whether the juvenile court abused its
discretion and violated our order on remand when ordering one hour of
supervised visitation every six months between A.C. and father.
“When a juvenile court terminates its jurisdiction over a dependent
child, it is empowered to make ‘exit orders’ regarding custody and visitation.
(§ 362.4; [citation].) Such orders become part of any family court proceeding
concerning the same child and will remain in effect until they are terminated
or modified by the family court. [Citation.]”3 (In re T.H. (2010) 190
Cal.App.4th 1119, 1122–1123.)
3 Section 362.4 provides in relevant part: “If the juvenile court
terminates its jurisdiction over a minor who has been adjudged a dependent
child of the juvenile court prior to the minor’s attainment of the age of 18
years, and proceedings for dissolution of marriage, for nullity of marriage, or
5
On appeal, a juvenile court’s exit order is reviewed for abuse of
discretion and “ ‘may not [be] disturb[ed] . . . unless the court “ ‘ “exceeded the
limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination [citations].” ’ ” ’ ” (In re M.R. (2017) 7 Cal.App.5th 886,
902.)
In this case, we find nothing arbitrary, capricious or patently absurd
about the juvenile court’s decision to permit father to have supervised
visitation with A.C. for one hour every six months. Each of the juvenile
court’s identified reasons (pp. 5–6, post) for ordering supervised visitation in
this duration and frequency is well supported by the record. After a lengthy
hearing, father was found to have committed multiple serious acts of abuse
against A.C.—findings we then affirmed on appeal. (A.C. I, supra, A154176,
at pp. 12–13.) The record on appeal also established the fact that father’s
relationship with A.C. has been characterized for years by conflict and
volatility. Not surprisingly, A.C. was fearful and anxious about any
visitation with father. Yet, father nonetheless continued to deny
for legal separation, of the minor’s parents, or proceedings to establish the
paternity of the minor child . . . , are pending in the superior court of any
county, or an order has been entered with regard to the custody of that
minor, the juvenile court on its own motion, may issue a protective order . . .
and an order determining the custody of, or visitation with, the child. [¶] Any
order issued pursuant to this section shall continue until modified or
terminated by a subsequent order of the superior court. The order of the
juvenile court shall be filed in the [superior court] proceeding . . . at the time
the juvenile court terminates its jurisdiction over the minor, and shall
become a part thereof. [¶] If no action is filed or pending relating to the
custody of the minor in the superior court of any county, the juvenile court
order may be used as the sole basis for opening a file in the superior court of
the county in which the parent, who has been given custody, resides. . . .”
(§ 364.2, subds. (a)–(c).)
6
responsibility for the breakdown in their relationship and resisted
involvement in therapeutic services.
Given these circumstances, A.C.’s statement to the court at the
January 9, 2020 hearing was both positive in conveying her sense of
happiness and well-being in her current placement with her mother, and yet
negative in conveying the ongoing sense of discomfort and fear she
experiences at the mere thought of resuming contact with father. Indeed, the
court noted for the record that “in giving her statement [A.C.] was very
emotional and was close to tears and was shaking. The Court could observe
that.”
This record supports the juvenile court’s conclusion that permitting
some supervised visitation—but in a very limited manner—would be in A.C.’s
best interests. The court’s decision not only accounted for the advice of
several experts who testified at the dispositional hearing that maintaining
some level of contact between parents and children is generally beneficial
(A.C. I, supra, A154176, at pp. 12–14), it also accounted for A.C.’s
understandable hesitancy to restart visitation given the extent of the
suffering she has experienced at father’s hands.
Moreover, we find father’s arguments against the visitation order
unpersuasive. Father contends the juvenile court’s provision of “a mere two
hours of visitation per year” is effectively “no visitation at all.” Father also
contends “the juvenile court violated the long-standing rules of child custody
cases, that absent a finding of detriment, visitation should be of a frequency
and duration sufficient to promote the parent child relationship. (In re
Austin P. (2004) 118 Cal.App.4th 1124, 1128.)” (Italics omitted.) According
to father, this order “virtually assured the erosion of any meaningful
relationship between [he] and A.C.”
7
As an initial matter, father’s authority, In re Austin P., supra, 118
Cal.App.4th 1124, is inapposite. That case holds that finding a detriment is
required before a juvenile court may order a child to be placed in the
temporary physical custody of someone other than the nonoffending
noncustodial parent. (Id. at p. 1128, citing § 361.2, subd. (a).) Here, we are
concerned with something quite different—an exit order pursuant to section
362.4, which is entered only after dependency jurisdiction is terminated. As
we have already explained, “In devising [section 362.4] orders, ‘The juvenile
court has broad discretion to decide what means will best serve the child’s
interest . . . .’ [Citation.] ‘Its determination will not be reversed absent a
clear abuse of that discretion.’ ” (In re Cole Y. (2015) 233 Cal.App.4th 1444,
1456.) For all the reasons identified above, the juvenile court acted well
within the scope of its broad discretion under section 362.4 when finding that
one hour of supervised visitation every six months would best serve A.C.’s
interests. (In re M.R., supra, 7 Cal.App.5th at p. 902.)
Last, the juvenile court, when crafting this visitation order, clearly
anticipated the possibility that the circumstances between father and A.C.
would change, for better or for worse. Thus, as pointed out at the hearing,
father maintains the right to file a petition in the superior court seeking
modification of this visitation order based upon a showing that circumstances
have changed and that additional visitation would be in A.C.’s best interests.
(See In re Michelle M. (1992) 8 Cal.App.4th 326, 328 [“the parties may seek
relief or modification of [an exit order relating to visitation] in the superior
court based on a showing of ‘the best interest of the child.’ (Civ. Code,
§§ 4600, 4608”]; In re Hirenia C. (1993) 18 Cal.App.4th 504, 518.) At this
time, however, the juvenile court’s order stands.
8
DISPOSITION
The juvenile court order of January 9, 2020, is affirmed.
9
_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Petrou, J.
A159351/San Mateo County Human Services Agency v. T.C.
10