Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. CK52341. Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Orders of September 12, 2006, affirmed; order of September 26, 2006, reversed.
John L. Dodd, under appointment by the Court of Appeal, and John L. Dodd & Associates for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Shelli B. (Mother), the mother of Hope B. (born in Jan. 2000) and Jacob C. (born in March 2006), challenges the September 12, 2006 jurisdictional and dispositional findings on a first amended subsequent petition and the denial of reunification services as to Jacob. Mother also appeals from a September 26, 2006 order denying Mother visitation with Hope unless visitation is recommended by Hope’s therapist, and then only in a therapeutic setting. We affirm the orders as to Jacob because they are supported by substantial evidence. But we reverse the order denying Mother visitation with Hope because it constitutes an improper delegation of judicial authority.
BACKGROUND
In 2003, Mother and Hope’s father, Gerald B., were involved in a divorce when the Department of Children and Family Services (DCFS) received a referral alleging sexual abuse of Hope, who was detained in foster care. According to Mother, Hope told her that Gerald B. had put his finger in her anus. But after a July 2003 report was submitted to the juvenile court stating that there was no medical evidence of sexual abuse, the juvenile court dismissed the sexual abuse allegations of the petition and sustained a first amended petition declaring that Hope was a dependent under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage), based on the parents’ history of domestic violence and their disparaging comments about each other in Hope’s presence. (Statutory references are to the Welf. & Inst. Code.) Mother was afforded monitored visits and Gerald B. was afforded unmonitored visits.
In September 2003, the juvenile court ordered Hope released to Gerald B. on condition that he reside in the home of the paternal grandmother. In October 2003, the juvenile court made dispositional findings against Mother and released Hope to the home of Gerald B. under DCFS supervision, with monitored visits for Mother. Both parents were ordered to attend counseling and a domestic violence program.
In March 2004, the juvenile court ordered that Mother was to have unmonitored visits with Hope to take her to dance classes and “Mommy and Me” classes. In June 2004, Mother filed a section 388 petition, seeking custody of Hope or unmonitored overnight visits. The court granted a hearing on Mother’s petition. In response to the section 388 petition, DCFS filed a report recommending that Mother receive overnight visits, but that Hope remain in the custody of the paternal grandmother. On July 18, 2004, during an unmonitored visit, Mother fled from California with Hope. The juvenile court issued a protective custody warrant for Hope and a warrant of arrest for Mother on kidnapping charges. In October 2004, when Mother’s whereabouts were unknown to DCFS, the juvenile court terminated Mother’s reunification services.
Mother and Hope lived in Kentucky for seven months and then moved to North Carolina. On a vacation in Florida in February 2006, Mother, who was then pregnant with Jacob, was arrested on the warrant. After Hope was returned to her father’s custody under DCFS supervision, the juvenile court ordered on April 20, 2006, that Mother was to have no contact with Hope pending Hope’s progress in counseling and that contact “is to occur in conjoint therapy only when the child’s therapist deems this appropriate.” Hope had disclosed to her therapist that Mother locked her in the trunk of Mother’s car. Hope also told a DCFS social worker that Mother drove her car for a “very long time” when Hope was in the trunk with “‘just water’” and that “‘it was very hot inside the trunk.’”
On April 20, 2006, when Jacob was less than one month old, he was detained and placed in foster care, where he remains. A petition was filed alleging that Jacob was a dependent of the juvenile court pursuant to section 300, subdivisions (b) and (j) (abuse of sibling).
DCFS stated in its May 2006 jurisdiction and dispositional report that Mother’s criminal kidnapping case remained pending, that Jacob’s father, Larry C., who had a lengthy arrest record, did not have a permanent or stable residence and had not demonstrated the ability to care for Jacob, and that Jacob would not be safe in Mother’s home because she had a history of neglecting her child’s needs based on her abduction of Hope and her failure to enroll Hope in school and provide her medical and dental care after Mother left California with Hope. Attached to the May 2006 report were letters from six people in North Carolina who attested to Mother’s good parenting skills, stated that Mother home schooled Hope, and characterized Mother as a loving and caring parent. Mother and Larry C. regularly attended their monitored twice-a-week visits with Jacob in May and June 2006.
In June 2006, a subsequent petition was filed as to Hope, alleging that she was a dependent pursuant to section 300, subdivision (b), based on Mother’s abduction. The juvenile court ordered a psychological evaluation of Hope and her parents by psychologist Michael Ward, pursuant to Evidence Code section 730.
At the June 19, 2006 jurisdiction hearing on the petition as to Jacob, Mother submitted to the evidence contained in the DCFS reports pursuant to In re Malinda S. (1990) 51 Cal.3d 368. The juvenile court sustained the petition, as amended, declaring that Jacob was a dependent pursuant to section 300, subdivision (b), based on the finding that Mother abducted Hope from Gerald B.
After a June 26, 2006 contested disposition hearing as to Jacob, the juvenile court removed Jacob from his parents’ custody and afforded the parents monitored visits. Over DCFS’s objection, the juvenile court afforded Mother reunification services. The minute order stated, “it’s in the best interest of the child to allow the Mother family reunification services.” Under the court-ordered disposition case plan, Mother was ordered to attend parent education and individual counseling, but the court acknowledged at the disposition hearing, “I know Mother has done everything here in terms of visitation and parenting class, but these are the kinds of things she did in [Hope’s case] as well, and my concern is that this father understand that I’m dealing with a mother who would go to any length at all if she feels her child is in jeopardy, for whatever reason.” Mother appealed from the June 19 and 26, 2006 orders. In a nonpublished opinion filed in March 2007, we upheld the jurisdictional order but reversed the dispositional order on the ground that there was insufficient evidence that there were no reasonable means to protect Jacob other than removal from Mother’s custody. (In re Jacob C. (Mar. 21, 2007, B193154) [nonpub. opn.] p. 7.)
Meanwhile, in August 2006, DCFS reported that in May 2006, Larry C. was arrested on a misdemeanor charge of being drunk in public and in July 2006, he was convicted of a felony charge of inflicting corporal injury on Mother. Mother was badly injured by Larry C. in May 2006, but her injuries were not permanent. According to Mother, Larry C. had been drinking on the evening that he injured her. Mother continued to associate with Larry C. until his arrest in June 2006. Larry C. was incarcerated but was released from custody by the time of a September 12, 2006 hearing. In August 2006, Mother enrolled in a shelter program designed to help her maintain permanent housing and self-sufficiency within 60 to 90 days. Mother also requested enrollment in domestic violence classes and mental health services.
In September 2006, DCFS filed a first amended subsequent petition under section 342 as to Jacob. The juvenile court sustained allegations that Jacob was a dependent of the court under section 300, subdivisions (a) (serious physical harm) and (b), based on the parents’ history of violent confrontations in Hope’s presence, in which Mother and Larry C. threw objects at each other and engaged in excessive yelling and screaming, on Larry C.’s incarceration for injuring Mother by punching her, and on Larry C.’s history of alcohol abuse and convictions for crimes relating to alcohol abuse.
On August 9, 2006, DCFS filed a similar first amended subsequent petition as to Hope. The juvenile court sustained allegations that Hope was subject to jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm) and (b), based on Hope’s exposure to violent confrontations between Mother and Larry C. and on Hope’s abduction by Mother.
In its September 12, 2006 jurisdiction and disposition report regarding Jacob, DCFS stated that Mother’s criminal case on kidnapping charges was pending and that Mother informed DCFS that she had been advised by her attorney not to speak with DCFS. Attached to the report was a 60-page psychological evaluation of Hope and her parents by Michael Ward, prepared in September 2003, before Hope’s abduction. DCFS stated that “Dr. Ward’s evaluation dated 9/22/2003, pointed out mother’s paranoid features, yet mother has yet to seek treatment. Mother’s untreated behaviors continue to endanger the physical and emotional well-being of her children. [Mother] lacks the ability to make sound judgments in order to maintain a stable and non-violent environment for her children as evidenced by the fact that [she] was involved again in a domestic violence incident with [Larry C.] on 5/26/2006. Despite being badly injured, [Mother] continued to maintain contact with [Larry C.]. [Mother] was with [Larry C.] when he was arrested on 6/29/2006 as [they] were found sleeping together in a car parked on the street in Long Beach.”
DCFS also reported that the dates of Mother’s attendance in domestic violence and psychological counseling were not known because Mother, under the advice of her attorney, refused to speak with DCFS about the case issues.
On September 12, 2006, the juvenile court sustained portions of the first amended subsequent petition as to Jacob, declaring him a dependent of the court under section 300, subdivisions (a) and (b). The juvenile court also sustained portions of the first amended subsequent petition as to Hope under section 300, subdivisions (a) and (b). The court removed Jacob from his parents’ custody and granted reunification services to Larry C. but denied Mother reunification services pursuant to section 361.5, subdivision (b)(10) and (15).
Section 361.5, subdivision (b) provides in pertinent part: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (10) That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half-sibling of that child from that parent or guardian. [¶] . . . [¶] (15) That the parent or guardian has on one or more occasions willfully abducted the child or child’s sibling or half-sibling from his or her placement and refused to disclose the child’s or child’s sibling’s or half-sibling’s whereabouts, refused to return physical custody of the child or child’s sibling or half-sibling to his or her placement . . . .”
In denying Mother reunification services, the court explained that “because the underlying facts of this case are so egregious, and I think that, based on the petition as it has been amended . . ., the court is well within its discretion. And, frankly, it is mandated, based on this court’s finding this mother has . . . abducted [Hope], [within section 361.5, subdivision (b)(15)], and I cannot make a finding that it is by clear and convincing evidence that reunification at this stage is in the minor’s best interest.” Noting that family reunification services had been ordered for Mother on the previous petition sustained in June 2006, the court explained, “Had I known all of the allegations in the [subsequent amended] petition that are raised in today’s report, I clearly wouldn’t have given [Mother] reunification services at that time.”
After sustaining portions of the first amended petition as to Hope, the court awarded Gerald B. sole legal and physical custody of Hope and continued the matter to permit Hope’s attorney to contact Hope’s therapist regarding Mother’s visitation. In the meantime, Mother was not permitted any contact with Hope. On September 26, 2006, a visitation order was filed, in both the juvenile court case and the family law case involving Mother and Gerald B. The juvenile court’s minute order provided that Mother was to have no contact with Hope at that time and that Mother’s contact, once permitted, “is to occur in a therapeutic setting only upon the approval of the child’s therapist.” The formal order in both the family law court and the juvenile court provided that Mother was not afforded visitation “except in a therapeutic setting only, upon minor’s therapist recommendation.”
Mother appeals from the September 12, 2006 orders as to Jacob and the September 26, 2006 order denying Mother visitation with Hope.
DISCUSSION
A. September 12, 2006 Jurisdiction, Disposition, and Reunification Services Orders as to Jacob
1. Jurisdiction
DCFS misconstrues Mother’s challenge to the September 12, 2006 jurisdictional order as one addressed to the sufficiency of the allegations. But Mother challenges only the sufficiency of the evidence to support the jurisdictional findings, so we proceed to address the sufficiency of the evidence supporting the assertion of juvenile court jurisdiction. (See In re P.A. (2006) 144 Cal.App.4th 1339, 1344; In re N. S. (2002) 97 Cal.App.4th 167, 170 [submission on social workers’ reports does not constitute waiver of right to challenge sufficiency of evidence on appeal].)
The juvenile court has jurisdiction over a child if the actions of either parent bring the child within any one of the statutory definitions in section 300. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) “Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) “The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.)
Jurisdiction under section 300, subdivision (b) may be based on either (1) actual serious physical harm or (2) a substantial risk that the child will suffer such harm. Evidence of past events may have some probative value in considering current conditions, but “this is only true if circumstances existing at the time of the hearing make it likely the children will suffer the same type of ‘serious physical harm or illness’ in the future.” (In re Janet T. (2001) 93 Cal.App.4th 377, 388.) Thus, to affirm the juvenile court’s jurisdictional finding under section 300, subdivision (b), there must be substantial evidence of a substantial risk to Jacob of serious physical harm from the parents’ past acts of domestic violence or from Larry C.’s alcohol abuse.
We reject Mother’s assertion that it was “mere speculation” that the domestic violence between Mother and Larry C. and Larry C.’s alcohol abuse placed Jacob at substantial risk of harm at the time of the hearing. At the time of adjudication, there was no evidence that either Mother or Larry C. had completed domestic violence counseling, or that Larry C. had obtained counseling or treatment for his alcohol abuse problem. The absence of such evidence supports the conclusion that these problems remained unresolved. And because there was evidence that, while suffering from these problems, Mother and Larry C. engaged in physical altercations in Hope’s presence, Larry C. seriously injured Mother, and thereafter Mother continued to associate with Larry C., the juvenile court reasonably could have inferred that the parents’ domestic violence problem and Larry C.’s alcohol abuse problem continued to pose a substantial risk of harm to an infant such as Jacob. Because the parents’ unresolved problems contributed to recent prior incidents involving the infliction of serious physical injuries and the subjection of a child to violent confrontations, this is not a situation where the risk of future harm is mere speculation or a remote possibility, as posited by Mother.
We conclude that substantial evidence supports the jurisdictional findings under section 300, subdivision (b).
2. Disposition
“The governing statute, section 361, subdivision (c), is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being and there are no ‘reasonable means’ by which the child can be protected without removal. [Citation.] The statute embodies ‘an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parent’s homes where it was safe to do so.’ [Citations.]” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
“On a challenge to an order removing a dependent child from his or her parent, we ‘view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value.’ [Citation.] We draw all reasonable inferences from the evidence to support the findings and orders of the dependency court.” (In re Javier G. (2006) 137 Cal.App.4th 453, 462–463.)
Mother claims that the juvenile court applied the wrong legal standard in removing Jacob from parental custody. But her contention is based on a misreading of the record because the juvenile court’s reference to section 361.5 was clearly in connection with the issue of reunification services and not removal of Jacob from parental custody.
We also reject Mother’s challenge to the sufficiency of the evidence supporting the finding that returning Jacob to Mother’s custody would have placed him in substantial danger. The juvenile court reasonably could have concluded that Mother’s unresolved domestic violence issues contributed to the incident in which she was seriously injured by Larry C. and that these unresolved problems also posed a risk of harm to Jacob were he to be returned to her custody.
Mother’s reliance on In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.) to support her position is misplaced. In Basilio T., the court concluded the parents’ two incidents of domestic violence in or near their children’s presence, but that did not involve threats or harm to their children, were insufficient to uphold removal of the children from parental custody. (Id. at p. 171.) But Basilio T. does not stand for the proposition that the removal of a child because of domestic violence in the home requires some kind of threat or harm directed to the child. Indeed, after Basilio T., the courts have recognized that domestic violence between the parents may create a substantial risk that a child in the parents’ household will suffer serious harm. (See, e.g., In re Heather A. (1996) 52 Cal.App.4th 183, 194 [in upholding jurisdiction, court determined that domestic violence in household with children constitutes neglect and creates risk of harm to children]; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [spousal abuse is detrimental to children].)
Although we granted Mother’s request for judicial notice of our prior unpublished opinion in her earlier appeal (in which we reversed the June 2006 dispositional order removing Jacob from her custody), we disagree with Mother’s argument that there were no new facts on which the juvenile court made its September 12, 2006 determination and that the prior appellate opinion is the law of the case and compels reversal of the September 2006 dispositional order. As explained by the juvenile court on September 12, 2006, the May and June 2006 incidents of domestic violence and Larry C.’s alcohol abuse were not known to the court at the time of the June 2006 order. Because the facts before the court were different on September 12, 2006, the prior opinion does not operate as the law of the case. Accordingly, Mother fails to establish that the dispositional order is not supported by substantial evidence.
3. Denial of Reunification Services
If, as here, the juvenile court finds applicable the exception to the requirement for reunification services in subdivision (b)(10) or (15) of section 361.5, “the court is prohibited from ordering reunification services unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (In re Ethan N. (2004) 122 Cal.App.4th 55, 64.) Thus, even if the juvenile court finds applicable either subdivision (b)(10) or (15) of section 361.5, “it has discretion to order reunification services if it determines reunification is in the best interests of the child.” (In re Albert T. (2006) 144 Cal.App.4th 207, 218, fn. 5 (Albert T).) We review the factual findings with respect to the applicability of one of the exceptions to reunification services for substantial evidence and we review the determination of the issue of the child’s best interest for abuse of discretion. (See In re Ethan N., supra, 122 Cal.App.4th at pp. 64–65.)
Mother maintains that the juvenile court did not base its decision denying reunification services on section 361.5, subdivision (b)(10) (termination of reunification services as to Hope) and (15) (abduction of Hope), but on events which occurred after Hope’s abduction, to wit, Larry C.’s alcohol habit and the parents’ domestic violence incident. But this claim is belied by the record, which Mother misconstrues. The juvenile court’s discussion of the circumstances in this case was clearly intended to be an explanation of why the court could not find that the provision of reunification services was in Jacob’s best interest.
We conclude that Mother fails to establish that the evidence was insufficient to support denial of reunification services under subdivision (b)(15) of section 361.5, or that the juvenile court abused its discretion in determining that it could not find by clear and convincing evidence that such services were in Jacob’s best interest. Mother does not even attempt to explain how the court’s best interest finding constitutes an abuse of discretion. Rather, she focuses on the requirements for the application of subdivision (b)(15) of section 361.5.
Albert T., supra, 144 Cal.App.4th 207, involved subdivision (b)(10) of section 361.5 (see fn. 1, ante) and its requirement that the juvenile court make a finding that the parent has not made a reasonable effort to treat the problems leading to the prior removal of a sibling. Citing Albert T., Mother argues that the same “no reasonable effort” clause in subdivision (b)(10) applies to subdivision (b)(15). But there is no language in subdivision (b)(15) similar to that in subdivision (b)(10). Albert T. does not address subdivision (b)(15) nor does it suggest that it contains a “no reasonable effort” requirement. Because Mother fails to establish that the denial of reunification services was not proper under subdivision (b)(15) of section 361.5, we need not address whether it was also proper under subdivision (b)(10).
B. September 26, 2006 Visitation Order as to Hope
We agree with Mother’s contention that the juvenile court improperly delegated judicial authority by giving Hope’s therapist unfettered discretion over Mother’s visitation with Hope.
Although Mother did not raise the issue of the improper delegation of judicial authority in the juvenile court, we exercise our discretion to excuse the forfeiture because the issue implicates the well-being of Hope (see In re S.B. (2004) 32 Cal.4th 1287, 1293) and the parties’ substantial rights (see In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7).
The instant order provided that mother was to have no visitation “except in a therapeutic setting only, upon minor’s therapist recommendation.”
“A juvenile court may not improperly delegate decisions over visitation to a child’s therapist. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 [(Donnovan)].) In finding the order in Donnovan an improper delegation of judicial power, the court explained: ‘[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. That is an improper delegation of judicial power.’ (Id. at pp. 1477–1478; cf. In re Chantal S. (1996) 13 Cal.4th 196, 213, . . ., where Supreme Court approved an order requiring that visitation for the father be facilitated by the minors’ therapist when satisfactory progress had been made by father.)” (In re Nicholas B., supra, 88 Cal.App.4th at p. 1138.)
DCFS argues that the visitation order in this case is more like the order in In re Chantal S., supra, 13 Cal.4th 196, which is the controlling authority, rather than Donnovan. We disagree. The order upheld in In re Chantal S. conditioned the father’s visitation on his participation in counseling and was to begin when his counselor determined that he had made satisfactory progress; once visitation began, it was to be facilitated by the child’s therapist. In Donnovan, the visitation order provided: “‘[f]ather to have no visitation rights [with children] without permission of minors’ therapists.’” (Donnovan, supra, 58 Cal.App.4th at p. 1475.)
There is no significant difference between the order in Donnovan and the instant order, which, as in Donnovan, must be reversed.
DISPOSITION
The September 12, 2006 orders as to Jacob C. are affirmed. The September 26, 2006 visitation order as to Hope B. is reversed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Under section 361.5, subdivision (c), second paragraph, “The court shall not order reunification for a parent or guardian described in paragraph . . . (10) . . . or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.”