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In Re Joshua D., A Person Coming Under the Juvenile Court v. April R

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


December 2, 2010

IN RE JOSHUA D., A PERSON COMING UNDER THE JUVENILE COURT LAW. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
APRIL R., DEFENDANT AND APPELLANT.

(Alameda County Super. Ct. No. HJ09012236)

The opinion of the court was delivered by: Simons, J.

In re Joshua D.

CA1/5

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

April R. (mother) appeals from various jurisdiction and disposition orders and from an order suspending visitation with her son, Joshua D.*fn1 Mother contends the court: (1) abused its discretion by suspending visitation; (2) erred by "denying [her] immediate visitation in a therapeutic setting"; (3) impermissibly delegated judicial authority to Joshua's therapist to determine whether visitation should occur; and (4) violated the notice requirements of the Indian Child Welfare Act, 25 United States Code section 1901, et seq. (ICWA).

We affirmed. We determined the court did not abuse its discretion by suspending visitation and by denying mother visitation in a therapeutic setting. We also concluded mother's complaint about lack of ICWA notice was not cognizable on appeal because the visitation order was not an "Indian Child custody proceeding" within the meaning of ICWA and Welfare and Institutuions Code section 224.1.*fn2 We reached this conclusion after determining mother's opening brief failed to challenge the jurisdiction or disposition orders.

Mother petitioned for rehearing. She claimed her opening and reply briefs clearly argued the court failed to comply with ICWA notice provisions at the May 14, 2009 disposition hearing. We granted the petition for rehearing. We modify our opinion to conclude the court failed to provide ICWA notice at the May 14, 2009 disposition hearing. We therefore remand for the limited purpose of ensuring compliance with ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Detention and Jurisdiction

Joshua was born in 1999. In March 2009, the Alameda County Social Services Agency (Agency) filed a nondetaining petition pursuant to section 300, subdivisions (b) and (g) alleging the trailer where mother and Joshua lived was "filthy and unkept" and that there were large piles of dirty clothes, "minimal food," and open bottles of alcohol in the trailer. The petition further alleged mother had been in "several domestic violence incidents" witnessed by her son, was being evicted, and had been "uncooperative" when the Agency tried to offer her services. Finally, the petition alleged Joshua was "tardy to school everyday" and arrived "unclean" and without having eaten breakfast.

The Agency amended the petition in April 2009 to add allegations that mother refused to give a child welfare worker access to her home, had avoided drug testing by shaving "all of her bodily hair," and was living with father, "a registered drug offender" with whom she had a history of domestic violence. The court detained Joshua in late April 2009 and ordered mother to comply with various drug testing requirements. Joshua began living with his maternal grandmother, Vicky R.

The court held a contested jurisdictional hearing in late April and early May 2009. On May 7, 2009, the court sustained various allegations in the amended petition that mother failed to supervise or protect Joshua (§ 300, subd. (b)). Among other determinations, it concluded there was clear and convincing evidence that leaving Joshua in mother's custody would create substantial danger to his physical and emotional well-being.

On May 12, 2009, father informed the Agency that he believed there was "some Cherokee in his family" but was "unsure whether anyone is a tribe member." The next day, the Agency filed a second amended section 300 petition that included information about father's potential Cherokee heritage. On May 14, 2009, the Agency filed an addendum report on the second amended petition. The addendum report noted that ICWA "may apply" and that father "believed there may be some Cherokee in his family." The addendum report, however, did not make any proposed findings regarding ICWA. That same day, the court held a disposition hearing on the second amended petition. At the hearing, the court did not order the Agency to provide ICWA notice to the Cherokee tribes.

The Agency's Application to Suspend Face-to-Face Visitation

In late May 2009, the Agency filed an ex parte application to "request that there be no face to face visits" between mother and Joshua "until [mother] can complete her psychological evaluation due to the detriment that Joshua faces while she is visiting with him." The Agency explained that during a recent supervised visit with Joshua, mother yelled at her mother and Joshua's caregiver, Vicky R., and claimed it was Vicky R.'s " 'fucking fault that we are at this visitation spot!' " Mother then demanded the visit take place outside because she had promised Joshua he could see his puppy during the visit. Mother also screamed in a threatening manner at the social worker and left the visitation room.

At that point, the social worker decided to terminate the visit because "Joshua appeared to be uncomfortable by the yelling and his mother leaving the room abruptly then returning." Mother refused to cooperate, however, and an Alameda County Sheriff's Deputy escorted her out of the building. Before she was escorted out, she hugged Joshua, told him that "none of [the] things that happened were his fault," and said he could call her "everyday if he wanted to." Joshua "was very upset, crying, and . . . extremely sad."

At a hearing on June 1, 2009, Joshua's counsel informed the court she favored suspending face-to-face visits until mother was able to "engage in services to stabilize her mental health status." Counsel explained that the conduct Joshua was "being exposed to is highly detrimental to his emotional health" and noted that Joshua had "gotten to a point where regularly he can be brought to tears over his mother's conduct, and not because he's not seeing her. To be clear, it is because of the conduct and because of her behaviors."

Mother's counsel asked the court to dismiss the Agency's application. Mother told the court she felt threatened by the social worker's presence during the visit and wanted a neutral third party to attend the visits. In response, the court told mother she was "manufactur[ing] things that don't seem to be there" and was "preventing the visits from going forward." The court also indicated it was concerned Joshua was "being exposed to scenes and emotional stress that are completely unnecessary, and . . . appear to be harmful." The court granted the ex parte application "on a temporary basis" and set a further hearing for June 2009.

At the subsequent hearing on June 18, 2009, the Agency asked the court to suspend visitation until mother could obtain mental health services. It argued it had shown by clear and convincing evidence that visitation was detrimental to Joshua, noting that the "one visitation his mother was even willing to attend" was stressful for Joshua and he "was in tears by the end of it." Finally, the Agency clarified that it was not "asking for discretion about whether visitation happens or not" and that it had "no objection to resuming supervised visitation" when mother "complies with a psychological evaluation or even medication . . . to stabilize her moods, . . . and once she's drug tested to show she's not currently using drugs."

Mother did not appear at the subsequent hearing because she did not feel "emotionally strong enough." Her counsel, however, asked the court to order "ongoing regular frequent physical contact" with Joshua. In response, Joshua's attorney stated Joshua wanted to visit mother "but only when she heals up and stops doing drugs." Counsel for Joshua also explained that Joshua missed mother and wanted to see her, but that mother's emotional state and her behavior during their one supervised visit were "so scary." Counsel asked the court to allow Joshua to call his mother during therapy sessions and to grant the Agency "discretion to facilitate therapeutic visits when that's appropriate." In response, Counsel for mother contended it was improper for the court to grant the Agency discretion as to whether and when visitation should occur.

After hearing argument from the parties, the court found the allegations of the section 342 petition true. It determined visitation with mother "would be detrimental" to Joshua and that there was sufficient evidence to suspend visits because mother "not only got into a big argument with the child welfare worker," during the one supervised visit but she also "shout[ed] obscenities at her own mother, at Joshua's grandmother and caregiver and [ ] her behavior was something that would no doubt be alarming to any nine-year-old. . . ." The court ordered "that for the time being visitation between [mother] and [Joshua] is suspended and that contact may be established between . . . mother and [Joshua] when [Joshua] is in the presence of a therapist and the contact is initially made by telephone. And at the point when the therapist feels that the minor is ready to have face-to-face contact with the mother . . . the therapist may initiate that in a therapeutic setting. And this contact should be initiated as soon as the therapist is able to set it up."

The court's written order stated, "Visits with mother shall be suspended. Telephone contact to be initiated as soon as possible with [Joshua] in [the] presence of his therapist and may proceed to person to person contact in a therapeutic setting. [Child Welfare Worker] has discretion to allow supervised telephone contact outside of the therapeutic setting." The court also continued Joshua's out-of-home placement and continued services for mother and father.

Mother appealed from the May 7 and 14 dispositional orders and from the June 18, 2009 visitation order. We consolidated the appeals.

DISCUSSION

Mother attacks the order suspending in person visitation on several grounds. First, she argues the court abused its discretion by suspending visitation because there was no evidence visitation would jeopardize Joshua's safety or cause him emotional harm. Second, mother contends the court abused its discretion by denying her "immediate visitation in a therapeutic setting." Third, she claims the order unlawfully delegated authority to Joshua's therapist to determine whether visitation should occur. Finally, mother argues the court violated ICWA notice requirements.

The Court Did Not Abuse Its Discretion by Suspending Visitation

Mother claims the court abused its discretion by suspending visitation because the court's order is "not supported by the necessary finding that visitation would jeopardize Joshua's safety" or cause him emotional harm. We review an order denying visitation for abuse of discretion; we uphold the order if it is supported by substantial evidence. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on other grounds, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]" (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

"Visitation is a necessary and integral component of any reunification plan. [Citations.] 'An obvious prerequisite to family reunification is regular visits between the non-custodial parent or parents and the dependent children "as frequent[ly] as possible, consistent with the well-being of the minor." ' " (In re S.H. (2003) 111 Cal.App.4th 310, 317; § 362.1, subd. (a)(1)(A) ["visitation between the parent . . . and the child [] shall be as frequent as possible, consistent with the well-being of the child"].)

However, "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).) Numerous courts have interpreted this language to require the court to make a finding of detriment before suspending or denying visitation. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 (Christopher H.) [court may deny parent visitation "if visitation would be harmful to the child's emotional well-being"]; In re S.H., supra, 111 Cal.App.4th at p. 317, fn. 9 ["The court may deny a parent visitation only if visitation would be harmful to the child"]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 (Nicholas B.). Detriment includes harm to the child's emotional well-being. (Christopher H., supra, 50 Cal.App.4th 1008.)

Mother, however, contends the court could not suspend visitation without determining visitation would jeopardize Joshua's physical safety. She relies on In re C.C. (2009) 172 Cal.App.4th 1481, 1491-1492. In that case, the juvenile court denied the mother visitation because it determined that "further visitation . . . would be detrimental" to the minor. The court, however, did not expressly find that visitation would harm the minor's safety. (Id. at pp. 1487, 1492.) The In re C.C. court reversed. It explained that while reunification is still possible, the juvenile court may restrict the frequency of visitation based on an assessment of the child's "well-being," but may not deny visitation entirely under section 362.1, subdivision (a)(1)(B) unless it finds visitation would threaten the child's "safety," which the court interpreted to mean physical safety. (In re C.C., supra, 172 Cal.App.4th at p. 1492.) The court did not discuss Christopher H., supra, 50 Cal.4th at page 1008, or any of the other numerous cases applying a "detriment" standard to orders suspending or denying visitation.

Assuming In re C.C. is correctly decided, it is distinguishable. Unlike In re C.C., the trial court did not deny mother visitation. Instead, the court regulated the frequency of visitation until there was a change in circumstances. Because the court did not deny visitation entirely, the juvenile court was not required to determine whether visitation with mother would jeopardize Joshua's physical safety.*fn3

We conclude the court did not abuse its discretion by suspending visitation. As the record cited above makes manifest, there was substantial evidence that visitation with mother was having a detrimental effect on Joshua. There was no abuse of discretion. (In re Mark L. (2001) 94 Cal.App.4th 573, 581; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

The Denial of Mother's Request for Visitation in a Therapeutic Setting Was Not an Abuse of Discretion

Next, mother argues the court abused its discretion by denying her "immediate visitation in a therapeutic setting." We disagree. The juvenile court has broad discretion to determine the terms and conditions of visitation. For the reasons discussed above, mother has not demonstrated the court exceeded the bounds of reason when it denied her request for "immediate visitation in a therapeutic setting." (In re Daniel C. H., supra, 220 Cal.App.3d at p. 839; In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

The Visitation Order Is Not an Invalid Delegation of Judicial Authority

Mother's next claim is the court violated the separation of powers doctrine by giving Joshua's therapist "sole, unlimited discretion" to determine "whether visitation should occur."*fn4 As stated above, the court suspended visitation with mother, concluding it would be detrimental to Joshua. The court's written order provided that telephone contact with mother should be initiated "as soon as possible [with the minor in the] presence of his therapist and may proceed to person to person contact in a therapeutic setting." In its remarks at the section 342 hearing on June 18, 2009, the court stated that Joshua's therapist "may initiate" face-to-face contact between Joshua and mother "when the therapist feels that the minor is ready. . . . And this contact should be initiated as soon as the therapist is able to set it up." Taken together, the court's oral pronouncement and written order directed the therapist to initiate telephone contact between mother and Joshua immediately. The court also directed Joshua's therapist to begin in person contact "as soon as the therapist is able to set it up" after determining Joshua was ready for such contact.

As discussed above, visitation is an essential part of a reunification plan. (In re James R. (2007) 153 Cal.App.4th 413, 435 (James R.).) "The juvenile court has the sole power to determine whether visitation will occur." (Christopher H., supra, 50 Cal.App.4th at pp. 1008-1009; James R., supra, 153 Cal.App.4th at p. 436.) The court "may not delegate its power to grant or deny visitation" to the social worker, therapist, or the child. (Christopher H., supra, at pp. 1008-1009; In re S.H., supra, 111 Cal.App.4th at p. 317.) "When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine." (In re S.H., supra, at pp. 317-318, fn. omitted, italics added.)

While a therapist may not determine whether visitation should occur, he or she "may be allowed the limited discretion to determine when court-ordered visitation should begin." (In re S.H., supra, 111 Cal.App.4th at p. 318, fn. 10; In re Chantal S. (1996) 13 Cal.4th 196, 203-204 (Chantal S.).) Thus, the question here is whether the court delegated the determination whether visitation could occur to Joshua's therapist. (See In re S.H., supra, at p. 317.) The answer is no. Although the court's order is not a model of clarity, the court did not unlawfully delegate authority over visitation.

Chantal S. is instructive. There, our Supreme Court rejected a father's argument that the juvenile court's visitation order improperly delegated judicial authority to the minor's therapists. (Chantal S., supra, 13 Cal.4th at p. 213.) The juvenile court's order stated " 'Visitation . . . for father . . . to be facilitated by [Chantal's] therapist . . . [¶] Before visitation with father and his daughter can occur [¶] . . . [¶] father must attend therapy regularly and make satisfactory progress for a time before any visits as determined by his therapist." (Id. at p. 202, brackets in original.) Our high court explained that the visitation order gave Chantal's therapist "no discretion whatsoever" because the order was apparently designed to "mandate that Chantal's therapist cooperate with the court's order that visitation occur once certain conditions are met." (Id. at p. 213.)

As the Chantal S. court explained, the "juvenile court apparently concluded that to protect Chantal, visitation should not begin until father makes sufficient progress in his own therapy. A juvenile court faced with this situation has two options. First, if circumstances warrant, it could deny father visitation, which in effect would require him to later move the family court to amend the order if he wished to secure visitation. In this regard, we note that father does not contest the position of Riverside County Department of Public Social Services . . . that on this record the juvenile court would have been within its discretion to simply deny father any visitation. Alternatively, the juvenile court could issue the order it did, specifying that visitation commence in a carefully restricted setting when father's chosen therapist determines that father has progressed satisfactorily." (Chantal S., supra, 13 Cal.4th at pp. 213-214, fn. omitted.)

Here, as in Chantal S., the juvenile court was within its discretion to deny visitation under any circumstances on the grounds that visitation with mother would be detrimental to Joshua. (Chantal S., supra, 13 Cal.4th at p. 214.) Mother's aggressive and unpredictable behavior during her supervised visit with Joshua made him "very upset" and "extremely sad." Joshua described the visit as "so scary" and said he did not want to visit with mother until she "heals up and stops doing drugs." That the court did not deny visitation and instead issued an order restricting visitation amounted to a windfall to mother, not a violation of her rights. (Ibid.)

The visitation order here did not unlawfully delegate judicial authority to Joshua's therapist to determine whether visitation would occur. Instead, the order directed Joshua's therapist to initiate face-to-face contact between Joshua and mother immediately after the therapist determined Joshua was ready. Our conclusion is supported by counsel for the Agency's comments at the June 18, 2009 hearing that the Agency was not seeking "discretion about whether the visitation happens or not." Counsel for the Agency explained that the Agency had "no objection" to resuming supervised visitation when certain conditions were met. Like the order in Chantal S., the order here specified "that visitation commence in a carefully restricted setting" when Joshua's therapist determined Joshua was ready for such visitation. (Chantal S., supra, 13 Cal.4th at p. 214.) It is well-settled that a court may grant a therapist "limited discretion to determine when court-ordered visitation should begin." (In re S.H., supra, 111 Cal.App.4th at p. 318, fn. 10.)

Mother relies on two cases, In re Donnovan J. (1997) 58 Cal.App.4th 1474 (Donnovan J.) and Nicholas B., supra, 88 Cal.App.4th 1126. In Donnovan J., the appellate court reversed a visitation order that stated, "Father has 'no visitation rights without permission of minors' therapists.' " The appellate court concluded the order "neither requires that the therapists manage visitation ordered by the court, nor sets criteria (such as satisfactory progress) to inform the therapists when visitation is appropriate. Instead it conditions visitation on the children's therapists' sole discretion. Under this order, the therapists, not the court, have unlimited discretion to decide whether visitation is appropriate." (Donnovan J., supra, at p. 1477.) The Donnovan J. court explained that a court may "base its determination of the appropriateness of visitation on input from therapists" but cannot delegate its duty to "make the actual determination" regarding visitation to therapists. (Id. at p. 1478.)

In Nicholas B., the court's order provided that " 'visitation . . . shall not occur until the minor's therapist expresses support for such visitation. At [the] point where therapist[] consents to visitation, visits are to occur a minimum of one hour per month, supervised at the social worker's discretion.' " (Nicholas B., supra, 88 Cal.App.4th at p. 1138.) The appellate court held the order gave the therapist "too much discretion" and failed "to mandate visitation as a necessary part of family reunification." (Ibid.) The court explained that the order gave the child and his therapist "veto power" over visitation. (Id. at p. 1139.) Here, and in contrast to Donnovan J. and Nicholas B., the court did not condition visitation on the therapist's permission or consent. Instead, the court directed the therapist to initiate visitation when the therapist determined the minor was ready. This guideline was appropriate given Joshua's description of visits with mother as "so scary" and his desire to see her "only when she heals up and stops doing drugs." While visitation must be as frequent as possible, it must also be "consistent with the well-being of the minor." (James R., supra, 153 Cal.App.4th at p. 435.)

The Court Failed to Comply with ICWA Notice Provisions

On March 30, 2009, the Agency reported that ICWA "does not apply" because mother told the Agency there was "no known Indian ancestry." On May 12, 2009, however, father told Joshua's social worker he believed there was "some Cherokee in his family" but was "unsure whether anyone is a tribe member." In a second amended section 300 petition filed on May 13, 2009, the Agency noted father's potential Cherokee heritage. The next day, the Agency filed an addendum report noting that father stated on May 12, 2009, that he "believed that there may be some Cherokee in his family." The Agency concluded "ICWA may apply" but did not make any proposed findings regarding ICWA. At the dispositional hearing on May 14, 2009, the court did not order the Agency to provide notice to the Cherokee tribes.

In her opening brief, mother argued "the order must be vacated due to noncompliance with the ICWA notice provisions." Mother's opening brief repeatedly referred to "the order." We assumed "the order" signified the court's June 18, 2009 visitation order because all of the previous issues discussed in her opening brief concerned the visitation order. As a result, we determined the only issue before this court was the propriety of the June 18, 2009 visitation order. We then concluded the ICWA issue was not cognizable on appeal because the visitation order was not an "Indian child custody proceeding" within the meaning of ICWA and section 224.1. (In re Holly B. (2009) 172 Cal.App.4th 1261, 1266 (Holly B.); see also Cal. Rules of Court, rule 5.480; In re Robert A. (2007) 147 Cal.App.4th 982, 986, fn. 4; In re J.B. (2009) 178 Cal.App.4th 751, 757.)

In her petition for rehearing, mother clarified that she was referring to the court's May 14, 2009 disposition order -- and not to the June 18, 2009 visitation order -- when she contended the "order" must be reversed for failure to provide ICWA notice. "ICWA is designed to protect the interests of Indian children, and to promote the stability and security of Indian tribes and families. It sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of [ICWA], notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested. [Citations.]" (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906 (Elizabeth W.).)

Father told the Agency on May 12, 2009, he believed there was "some Cherokee in his family" but was "unsure whether anyone is a tribe member." The second amended section 300 petition contains this information, as does the Agency's May 14, 2009 addendum report. Both the second amended petition and addendum report were before the court at the May 14, 2009 disposition hearing.*fn5 As a result, the court had "reason to believe" Joshua might be an Indian child within the meaning of ICWA and was obligated to provide notice in compliance with ICWA. (Elizabeth W., supra, 120 Cal.App.4th at p. 906; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255-257; In re Nikki R. (2003) 106 Cal.App.4th 844, 848 ["the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement"].)

". . . [O]rdinarily failure in the juvenile court to secure compliance with [ICWA']s notice provisions is prejudicial error." (In re Levi U. (2000) 78 Cal.App.4th 191, 197 (Levi U.).) "The only exceptions lie in situations where 'the tribe has participated in the proceedings or expressly indicated [it has] no interest in the proceedings.'" (Id. at p. 197, quoting In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.) Neither exception applies here and, as a result, the "appropriate remedy is to remand for ICWA compliance." (In re Veronica G. (2007) 157 Cal.App.4th 179, 186.)

DISPOSITION

The order suspending visitation is reversed. The case is remanded to the juvenile court with directions to comply with the notice provisions of the ICWA. If, after providing notice, the court determines Joshua is an Indian child, the court shall proceed in conformity with the ICWA. If, however, after proper inquiry and notice, the court determines Joshua is not an Indian child, the order suspending visitation shall be reinstated.

We concur: Jones, P.J. Bruiniers, J.


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