Opinion
B295597
03-27-2020
In re E.C., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EVA P., Defendant and Appellant. EDUARDO C. et al., Defendants and Respondents.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Respondent Eduardo C. No appearance for Respondent Javier G.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 17LJJP00180) APPEAL from orders of the Superior Court of Los Angeles County, Robin R. Kessler, Referee. Reversed in part and affirmed in part. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Respondent Eduardo C. No appearance for Respondent Javier G.
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The Los Angeles County Department of Children and Family Services (DCFS) initiated juvenile dependency proceedings concerning E.C., M.P., M.G., and A.G. based primarily on their mother's (mother's) illicit drug use, which rendered her incapable of providing them with regular care and supervision. The juvenile court later asserted dependency jurisdiction over the children, declared them to be dependents of the court, placed E.C. with his father (Eduardo C.), and placed M.P., M.G., and A.G. with their father (Javier G.).
Subsequently, the juvenile court awarded the children's respective fathers sole physical custody and granted mother visitation. More specifically, the juvenile court's orders allowed mother to have unmonitored visits with: (a) E.C. on any agreed-upon schedule or on the first Saturday of each month from 9 a.m. to 12 p.m.; and (b) the remaining children on a schedule mutually agreed upon by the parents, but at least twice a week. The court explicitly conferred upon Eduardo C. and Javier G. the discretion to allow mother to have overnight visits with their respective children. Concurrent with the issuance of these custody and visitation orders, the juvenile court terminated its jurisdiction and conditioned the family court's modification of the custody orders on mother's submission to three months of drug and alcohol testing and participation in several Alcoholics Anonymous and Narcotics Anonymous meetings.
On appeal, mother claims the juvenile court erred by: (1) restricting the family court's authority to modify the custody orders, and (2) improperly delegating to Eduardo C. and Javier G. the right to determine whether mother could have unmonitored and overnight visitation. We agree with mother's first contention, but reject mother's second claim because the juvenile court provided for visitation and specified the frequency of mother's unmonitored visits, and mother has failed to demonstrate that giving the children's respective fathers discretion to allow overnight visits was an improper delegation of the court's authority.
We thus reverse the juvenile court's family court exit orders insofar as they condition modification of the orders on mother's submission to three months of drug and alcohol testing and participation in several Alcoholics Anonymous and Narcotics Anonymous meetings. In all other respects, the juvenile court's family court exit orders are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts that are relevant to the instant appeal.
Eduardo C. is the father of 15-year-old E.C., and Javier G. is the father of 11-year-old M.P., 5-year-old M.G., and 3-year-old A.G. On October 12, 2017, Javier G. obtained a default judgment in family court that awarded him sole physical custody of M.P., M.G., and A.G., and granted mother the right to have visits with the three children.
On November 14, 2017, DCFS filed a juvenile dependency petition concerning all four children. The petition averred two counts against mother pursuant to Welfare and Institutions Code section 300, subdivision (b)(1). Count b-1 alleged that mother "has a history of substance abuse and is a current abuser of amphetamine, methamphetamine and marijuana, which renders . . . mother incapable of providing the children with regular care and supervision." Count b-2 alleged that mother "established a detrimental and an endangering home environment for the children in that the mother allowed an unrelated adult . . . and mother's male companion, . . . who are current users of illicit drugs, to reside, use and be under the influence of a controlled substance in the children's home." Neither Eduardo C. nor Javier G. was named as an offending parent under the petition.
Undesignated statutory citations are to the Welfare and Institutions Code. Section 300, subdivision (b)(1) provides in pertinent part that jurisdiction is proper if: "The child has suffered or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's . . . substance abuse." (§ 300, subd. (b)(1).)
At a detention hearing held on November 15, 2017, the juvenile court found a prima facie case for detaining each child and ordered that the children be released to their respective fathers.
At the February 16, 2018 adjudication hearing, the juvenile court struck count b-2, and mother pleaded no contest to an amended form of count b-1. The juvenile court thereafter sustained amended count b-1 and found that each child is a person described by section 300, subdivision (b).
Amended count b-1 does not appear in the record.
The juvenile court held a disposition hearing on March 5 and 6, 2018. At the conclusion of the hearing, the court declared each child a dependent of the court under section 300, subdivision (b) and placed the children with their respective fathers.
On January 23 and 25, 2019, the juvenile court held a section 364 review hearing. The minute orders for the proceedings held on January 25, 2019 provide in pertinent part: "Joint Legal Custody to mother and father and Sole Physical Custody to father. Mother is to have unmonitored day visits. Father's [sic] have discretion to allow overnight visits. [¶] Mother must have three additional months of testing and three months of continued AA meetings in order for Family Law Court to change order to Joint Physical Custody." The court also found that "those conditions which would justify the initial assumption of jurisdiction under . . . section 300 no longer exist and are not likely to exist if supervision is withdrawn . . . ." The court stayed the termination of its jurisdiction pending receipt of certain proposed juvenile custody orders from counsel.
If the juvenile court makes "an order placing a child under the supervision of the juvenile court pursuant to Section 300" but does not "remove[ ] [the child] from the physical custody of his or her parent or guardian," then section 364 requires the lower court to set a hearing to "determine whether continued supervision is necessary." (See § 364, subds. (a) & (c).) The statute further provides that "[t]he court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." (See § 364, subd. (c).)
On January 28, 2019, the juvenile court issued custody, parentage, and visitation orders for each of the four children. The custody order for E.C. provides that mother and Eduardo C. have joint legal custody of E.C.; Eduardo C. has sole physical custody of E.C.; "[m]other shall have unmonitored visitation with the minor"; and Eduardo C. "shall have [the] discretion to allow [m]other to have overnight visitation if appropriate." The visitation order for E.C. confers upon mother the right to "[v]isitation on any schedule agreed-upon between the parents, or the first Saturday of each month from 9 AM to 12 PM." The visitation order further provides: "The [c]ourt would like [m]other to continue for three more months with drug/alcohol testing and one to two AA/NA meetings per week before considering changes to the juvenile custody order."
On November 12, 2019, we granted DCFS's motion to augment the record to include these filings and their accompanying minute orders.
Similarly, the custody orders for M.P., M.G., and A.G. provide that mother and Javier G. have joint legal custody of each of these three children; Javier G. has sole physical custody of them; and "[f]or joint physical custody, mother to have an additional 3 months of clean and sober testing and 1 or 2 Narcotics Anonymous or Alcoholics Anonymous meetings per week." The visitation orders for M.P., M.G., and A.G. provide: "Mother to have unmonitored day visits on a schedule as mutually agreed upon by the parents minimum [sic] two times per week. Father has discretion to liberalize mother's visits to overnight visits when deemed appropriate."
The "minimum two times per week" language is a handwritten interlineation.
Upon issuing the custody, parentage, and visitation orders for each child, the juvenile court terminated its jurisdiction.
Mother timely appealed the January 28, 2019 orders.
DISCUSSION
"Section 362.4 provides that when the juvenile court terminates jurisdiction over a dependent child, and there is a pending family court case, the juvenile court may issue an order determining the custody of, or visitation with, the minor, which order 'shall' become part of the family court file and 'shall continue' unless 'modified' or 'terminated' by that court." (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1455 (Cole Y.)) "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." (§ 362.4, subd. (c).) "An order entered pursuant to section 362.4 is commonly referred to as an ' "exit" ' order." (Cole Y., supra, 233 Cal.App.4th at p. 1455.)
On appeal, mother challenges the juvenile court's exit orders. In particular, she argues the juvenile court erred in: (1) restricting the family court's authority to modify the exit orders to provide mother with joint physical custody of the children, and (2) "accord[ing] excessive discretion over mother's visits" to Eduardo C. and Javier G. by failing to specify the frequency of her unmonitored visits and authorizing them to decide whether she could have overnight visits.
DCFS, the only party to have filed a respondent's brief, takes no position on the juvenile court's limitations on the family court's power to modify the exit orders or on whether the lower court improperly delegated its discretion to decide if mother can have overnight visits with the children. DCFS does argue, however, that the exit orders properly specified the frequency of mother's unmonitored visits.
DCFS asserts, without citation to the record, that it "did not request that the juvenile court impose conditions to modify the custody order or that the fathers be granted discretion to allow [m]other to have overnight visitation." We are unable independently to verify that assertion. Specifically, the appellate record does not reveal which party (if any) requested these provisions because the official court reporter attests she does not have a transcript of the January 25, 2019 section 364 hearing, even though the minute orders for the hearing suggest that it was transcribed.
Additionally, DCFS represents that it "notified trial counsel for the fathers and the children that it would not be taking a position on appeal as to these issues [(i.e., the juvenile court's limitations on the family court's power to modify the exit orders and whether the lower court improperly delegated its discretion to decide if the mother can have overnight visits with the children)] to allow them to determine if they would take a position on appeal or seek appointment of appellate counsel." Eduardo C. later requested the appointment of appellate counsel, and we rejected that request after he failed to submit a financial affidavit. He, Javier G., and the children thereafter failed to file a respondent's brief.
DCFS further argues that if we "find error in the juvenile court's custody order, the proper remedy is to remand the matter to family court," and not the juvenile court. Although we reverse the exit orders' restrictions on the family court's authority, that reversal does not necessitate further litigation in a lower court. Therefore, this issue is moot.
As we explain below, we agree the juvenile court did not have authority to condition the family court's modification of the exit orders on mother's submission to drug and alcohol testing and participation in Alcoholics Anonymous and Narcotics Anonymous meetings. On the other hand, we conclude the juvenile court did not improperly delegate its authority concerning visitation.
A. The Juvenile Court Erred in Limiting the Family Court's Authority to Modify the Exit Orders
Section 302, subdivision (d) provides: "Any custody or visitation order issued by the juvenile court at the time the juvenile court terminates its jurisdiction pursuant to Section 362.4 regarding a child who has been previously adjudged to be a dependent child of the juvenile court shall be a final judgment and shall remain in effect after that jurisdiction is terminated. The 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." (§ 302, subd. (d).)
Family Code section 3021 governs actions involving "[the] dissolution or nullity of a marriage, legal separation, and specified custody issues." (See Cole Y., supra, 233 Cal.App.4th at p. 1456.)
"Under section 302, subdivision (d), the decision to modify an exit order was, and is, within the province of the family court, and then only upon a finding of 'significant change of circumstances' and that the modification is in 'the best interests of the child.' " (Cole Y., supra, 233 Cal.App.4th at p. 1456, quoting § 302, subd. (d).) Thus, the juvenile court did not have the "authority to condition the family court's modification of an exit order upon the completion of counseling and other programs . . . ." (Ibid., italics omitted.)
Accordingly, we reverse the juvenile court's exit orders insofar as the court conditioned their modification on mother's participation in the above-described drug and alcohol testing and meetings. (Cf. Cole Y., supra, 233 Cal.App.4th at pp. 1455-1457 [reversing an exit order that "conditioned modification of the family court's custody and visitation order upon proof of [the] [f]ather's completion of drug and parenting programs and counseling"].)
B. The Exit Orders Did Not Improperly Delegate Authority Regarding Visitation to Eduardo C. and Javier G.
"The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. [Citation.] This rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated. [Citations.] [¶] A visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner. [Citation.] That said, 'the ultimate supervision and control over this discretion must remain with the court . . . .' [Citation.] Several appellate courts have overturned visitation orders that delegate discretion to determine whether visitation will occur, as opposed to simply the management of the details. [Citations.]" (In re T.H. (2010) 190 Cal.App.4th 1119, 1123 (T.H.).)
Mother argues that the juvenile court "effectively delegated to [Eduardo C. and Javier G.] the power to determine whether mother's unmonitored and overnight visitation would occur at all." Specifically, she contends that the exit orders "did not specify the frequency of visits or even provide for ' "reasonable" visitation,' " and they "expressly permitted the children's father[s] to decide if mother would have overnight visits at all."
She further posits that, in the absence of any order specifying the frequency of her visits with M.P., M.G., and A.G., Javier G. will not allow mother to have unmonitored and overnight visits, given that Javier G. "and his family ha[ve] been very difficult for both mother and the social worker to deal with regarding her visits."
Mother's assertion that the exit orders do not specify the frequency of her unmonitored visits is belied by the record. Admittedly, the January 25, 2019 minute orders did not set forth the frequency of her unmonitored visits. Yet, three days later, the juvenile court issued an order entitling mother to "[v]isitation [with E.C.] on any schedule agreed-upon between the parents, or the first Saturday of each month from 9 AM to 12 PM." (Italics added.) Similarly, the juvenile court ordered Javier G. to allow mother to have "unmonitored day visits" at least "two times per week" with M.P., M.G., and A.G. Thus, the juvenile court did not delegate to Eduardo C. and Javier G. the authority to determine whether mother would have any unmonitored visits.
Conversely, the juvenile court did confer upon Eduardo C. the "discretion to allow [m]other to have overnight visitation [with E.C.] if appropriate." Likewise, the exit orders gave Javier G. the "discretion to liberalize mother's visits to overnight visits when deemed appropriate."
Mother has not directed us to any authority supporting the proposition that a juvenile court errs in giving a parent the authority to decide whether to allow an overnight visit, as opposed to the authority to allow visitation at all. Rather, the decisions upon which mother relies involve orders delegating to third parties the right to determine whether a parent may have any visits with his or her children. (See T.H., supra, 190 Cal.App.4th at p. 1123-1124 [reversing an order that had "effectively delegate[d] to mother the power to determine whether visitation [with the father would] occur at all"]; In re S.H. (2003) 111 Cal.App.4th 310, 317-320 [reversing an order providing that, " 'if the children refuse a visit, then they shall not be forced to have a visit' "]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1137-1138 [addressing an order stating that " 'visitation . . . shall not occur until the minor's therapist expresses support for such visitation' "]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1475 [reversing an order that provided: " '[F]ather to have no visitation rights [with the children] without permission of minors' therapists,' " italics added]; see also In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 (Christopher H.) ["Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine," italics added].)
Although mother concedes that " 'the time, place and manner' " of a visit may be delegated to a third party, she fails to explain why the decision to allow overnight visits does not fall within that category. (See also Christopher H., supra, 50 Cal.App.4th at p. 1009 ["The court may . . . delegate discretion to determine the time, place and manner of the visits"].)
In sum, the juvenile court did not delegate to Eduardo C. and Javier G. the discretion to decide whether mother could have visitation, and mother provides no authority showing the juvenile court erred in giving the fathers discretion to allow overnight visits. (See In re J.F. (2019) 39 Cal.App.5th 70, 79 ["The juvenile court's orders are 'presumed to be correct, and it is appellant's burden to affirmatively show error.' [Citations.] ' "Appellate briefs must provide argument and legal authority for the positions taken" ' "].)
DISPOSITION
We reverse the juvenile court's family court exit orders insofar as the juvenile court conditioned modification of these orders on mother's submission to three months of drug and alcohol testing and participation in several Alcoholics Anonymous and Narcotics Anonymous meetings. In all other respects, the juvenile court's family court exit orders are affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
CHANEY, Acting P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.