IN RE: C.N. et al.

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Court of Appeal, Fifth District, California.

IN RE: C.N. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. S.N., Defendant and Appellant.

F057946

Decided: February 18, 2010

Marvin R. Coston, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

S.N. (father) appeals from the juvenile court's order reducing his visitation with his sons to once a month, supervised visits.   He also claims the court erred in failing to make adequate inquiry into his complaints about counsel.1  Finding no abuse of discretion, we affirm.

PROCEDURAL AND FACTUAL HISTORY

In late April of 2008, Stanislaus County Child Protective Services (CPS) received a referral that twins C.N. and K.N., aged nine, were sexually molested by 12-year-old J.W., the son of their father's female roommate, K.W., during a visit with their father.   The twins lived with their mother in San Joaquin County, but spent time with father in Modesto.   The mother had had primary custody of the twins since 2001, and appellant had visitation with them on the first and third weekend of every month.

In a videotaped interview on April 30, 2008, K.N. reported that J.W. had several times touched his “private parts” to K.N.'s “private parts.”   He also reported lying on top of J.W. when both were naked, and that J.W. twice put his penis into K.N.'s mouth.   K.N. stated that J.W. had done the same to his brother C.N. approximately five times, and that J.W. put his penis into C.N.'s butt.   K.N. stated that both he and C.N. told their father about J.W.'s actions, but nothing happened or changed.

C.N. reported that J.W. tried to put his penis into his butt, but that C.N. squeezed his butt cheeks together and would not allow J.W. to do it, which made J.W. mad.   J.W. told C.N. that he wanted to “fuck him and have sex in the van.” 2  According to C.N., every time he goes to father's house, J.W. shows him his “pee pee.”

J.W. denied touching the boys and denied ever having been in the van where K.N. and C.N. reported that the acts occurred.

Father and K.W. were informed of the allegations.   The social worker reported that both were “unable to digest or grasp the information they were given about the sexual acting out.”   During subsequent conversations, both adamantly denied that the events could have occurred.

C.N. also reported that his half brother, B.T., who lives with him at his mother's house, bit him on the penis.   When B.T. was questioned, he stated that he was trying to play a video game when C.N. came up to him with his pants down and repeatedly tried to put his penis in B.T.'s face.   B.T. got angry and finally bit C.N.'s penis.

When the twins' mother learned about the incidents of sexual abuse, she immediately sought counseling for the twins.

The social worker found the allegations of sexual abuse by J.W. to be substantiated.   Visitation with father was suspended, and father and K.W. initially agreed to attend Parents United and accept that sexual abuse occurred.   But in June of 2008, they filed a grievance questioning the findings and stated that they would not participate in Parents United.   The social worker explained that if they did not comply, visitation with the twins would remain suspended indefinitely.   The family maintenance case was closed and the social worker advised the mother not to allow the twins to visit their father and to follow up in family court to have the visits officially suspended.

An order filed December 24, 2008, in Stanislaus County Family Court stated, inter alia, that the mother and father were to have joint legal custody with the mother having sole physical custody, and that father have care, custody, and control on the first and third weekends of the month.   The holidays were shared between the mother and father.

In February of 2009, CPS learned that J.W. was in the home while the twins visited their father.   C.N. reported to a social worker that, during a recent visit, J.W. said “let's go in the van and have sex.”   C.N. told his father, but father and K.W. believed J.W. and not him.   C.N. did not feel safe at father's house.

K.N. reported that J.W. asked the twins to go to the van and “hump like we used to.”   He also reported that J.W. started a fire that got out of hand and burned C.N.'s leg.   K.N. did not feel safe at his father's because father and K.W. slept all day and did not believe him when he told them about J.W.'s actions.

A team decision meeting was held.   Father stated that he did not believe the reported conduct of J.W. had occurred.   Instead, he believed, the sexual conduct was between B.T. and the twins.   The twins' mother reported that C.N.'s behavior had worsened since visits with his father resumed around Christmas.   C.N. acted out at school and was hitting his head against a wall.   Due to father's inability or refusal to believe his sons and his failure to protect them from J.W., a petition was filed February 19, 2009, alleging that the twins fell within Welfare and Institutions Code section 300, subdivisions (b) and (d).3

At a detention hearing held February 20, 2009, the boys were detained in the home of their mother.   Father was to have only supervised visitation at the Community Services Agency offices.

The jurisdiction/disposition report, filed April 2, 2009, reported that father had not visited the twins because he refused to participate in supervised visits.   He also continued to refuse to believe the twins, refused to remove J.W. from the home when the twins visited, and refused to attend Parents United.   The twins were in counseling and, according to their mother, their behavior had improved both at home and at school.

Social Worker Eric Anderson reported that he visited father and K.W. on May 1, 2008, at 10:30 in the morning, and both were still asleep.   Despite J.W.'s statement that he had never been in the van, father and K.W. acknowledged that they had let the boys in the van once to clean it.

Social Worker Erin Cary reported that on March 2, 2009, she attempted to get father to attend Parents United, but father made a series of excuses.   He claimed he lacked transportation.   The social worker offered bus passes, but father claimed the bus did not come to his house.   She then offered a driver to deliver him to the meetings.   Father claimed he could not afford the programs he was referred to.   The social worker stated that the agency would pay the bill, but father failed to make the appointment.   He reiterated that he did not believe the twins' reports of sexual abuse because there was “no proof, no paper.”

A contested hearing was scheduled for May 1, 2009.   But on April 27, 2009, before the hearing, father filed a complaint, pursuant to rule 5.05 of the Local Rules of the Superior Court of Stanislaus County (rule 5.05), regarding his attorney.   Father alleged the attorney had (1) claimed not to have received some of the documents father had produced, (2) cancelled an appointment with him, and (3) not yet reviewed the family law file on his case.   The court reviewed the complaint, found that there was “reasonable cause to proceed,” and forwarded the complaint to the attorney for a response to be filed within 20 days.

On May 1, 2009, father's attorney filed a declaration in response to the complaint.   In it she detailed the many phone calls to her office from father and her return calls to him;  several in-person appointments with father, including one that had to be reset because of a court matter that was trailed;  and her extensive efforts to obtain records in the case.

On May 7, 2009, the court issued “Findings Under Local Rule 5.05,” stating that there was no reasonable cause to believe appointed counsel acted incompetently.   The motion for new counsel was denied.

A week later, counsel sought a continuance to enable her to further communicate with father.   The court, noting that it was the end of the school year, asked if the twins could be excused to attend the last few days of school, but father insisted that they be present at the next hearing.

The contested jurisdiction/disposition hearing was held on June 1, 2009.   Father called a number of witnesses.   Among them, Social Worker Cary, now Webster, who recommended that father not have joint custody and only supervised visitation based on the fact that the twins were victims of sexual abuse but their father did not believe them and would not protect them from further abuse.   She also testified about her continued attempts to get father to attend Parents United by offering both payment and transportation, but father refused to go.

Father testified that he was “a good dad” and that there have “never been any problems in my household.”   He denied either twin ever told him of J.W.'s sexual actions, although they tell him “everything,” and he claimed to “know everything.”   He testified that he believed J.W.'s version of the events because, when they questioned him, he and K.W. made J.W. put his hand on the urn containing his grandmother's ashes.   Father repeatedly stated that he did not think the sexual abuse occurred and he needed medical proof to believe otherwise.   He stated he believed the incident of J.W. setting a fire occurred because all three of the boys set fires and “they smoked.”   He claimed Parents United would not accept him because he was not a perpetrator and there was no proof of abuse.   Father was not able to articulate why he had not asked to visit the twins between the time of detention and April 8, 2009.   Over the course of three days of testimony, father insisted there was nothing that could happen at this point that would convince him the sexual abuse occurred.

K.W., J.W.'s mother and father's roommate, testified that the twins both came to her in the court hallway and apologized to her, stating that their mother made them say the things they did about J.W. She acknowledged that the boys were together in the van on one occasion in April of 2008, but she insisted that nothing happened.   K.W. claimed that the twins never told her about J.W. setting fires, but she watched over the fence and saw C.N. get a lighter out of his pocket on three or four occasions.   K.W. claimed that J.W. did not understand the allegations against him;  although she tried to teach him about sexual relations, he “does not understand.”   K.W. testified that J.W. is at a fifth grade level.

The twins' mother testified that the twins had been in counseling both before and after the sexual abuse incidents.   Mother admitted that the twins have smoked and told her they got cigarettes by sneaking them from K.W. and their father.

The twins each testified out of the presence of both parents and each other.   K.N. testified that, in phone conversations, his father grilled him about whether the twins were molested, had started fires, or smoked.   K.N. testified that he told his father about J.W. molesting them before the police were involved, but his father didn't believe him.   K.N. stated he had been in the van four times and detailed each time.   Once, J.W. started a fire in the van with a lighter.   Father saw J.W. do it, came outside and yelled at him not to do it again, and then went back into the house.

K.N. acknowledged that he and C.N. had helped to start two fires with J.W., who used gasoline, car oil, and a spray deodorant to do so.   J.W. had started between 10 and 20 fires.   J.W. threatened to beat up the twins if they refused to help him start the fires.   K.N. testified he was afraid of J.W., as J.W. had kicked him in the back and kicked C.N. in the chest.   K.N. denied telling K.W. that he was lying about J.W.

C.N. testified that J.W. had started over 10 fires, and he had helped him with several because J.W. threatened him.   C.N. stated that he had been punished for fires that J.W. started.   C.N. acknowledged that he smoked cigarettes from father's supply.   C.N. never told father or K.W. that he had lied about J.W. touching his private parts “because it was true.”   His mother never told him to lie, but only to tell “the whole truth.”   C.N. testified that he told his father about J.W. touching him several times before telling the police, but that father did nothing.   C.N. did not think father cared much when his leg was burned.

The following day, in its ruling, the dependency court found both father's and K.W.'s testimony not credible.   In contrast, the court found the twins' testimony very credible.   The court stated it did not believe, based on father's statements, that it could trust him to follow the plan of having J.W. out of the house.   Instead, the court believed father would continue to allow K.W. and J.W. to have access to the twins.   The court sustained the jurisdictional allegations, finding them true by a preponderance of the evidence.

In the dispositional phase of the hearing, the court found there was no substantial danger for the twins to be in the custody of their mother.   And the court found by clear and convincing evidence that there was substantial danger to the twins if they were in father's custody, namely that they were at risk of further sexual abuse by J.W. and emotional abuse by father's continued refusal to believe them.

The dependency court declared the twins to be dependents of the court.   The court made “exit orders” awarding full legal and physical custody to their mother.   The court gave father “a minimum of one time per month” supervised visitation.   Father was to bear the cost of the visits.   The court reluctantly ordered twice a month telephone calls between the twins and father, to occur on a speaker phone, and giving mother authority to terminate them if father made allegations, interrogated them, or called them liars.   The court then dismissed the dependency.

DISCUSSION

1.  Did the juvenile court fail to adequately entertain father's Marsden 4 motion?

Father argues that the juvenile court committed reversible error in failing to conduct a “Marsden type” hearing in order to inquire into his grievances about his trial counsel.   According to father, without such a hearing, “it was impossible for the juvenile court to determine whether or not there was any merit to [father's] complaint,” particularly whether an “irreconcilable conflict” existed between him and counsel.   We find no error.

Parents in dependency cases have a statutory right to competent counsel under section 317.5, subdivision (a).   In addition, the principles set forth in People v. Marsden, supra, 2 Cal.3d 118 have been held applicable to juvenile dependency cases.  (In re Ann S. (1982) 137 Cal.App.3d 148, 150.)

To these ends, counties must establish “a process for the review and resolution of complaints or questions by a party regarding the performance of an appointed attorney.”  (Cal. Rules of Court, rule 5.660(e);  see § 317.6, subd. (a)(3).)   The Superior Court of Stanislaus County, Local Rules, rule 5.05, provided in April and May of 2009, the time applicable here, in relevant part:

“A. Any party to a Juvenile Court proceeding may lodge a written complaint with the Presiding Judge of the Juvenile Court, on a form to be provided by the Juvenile Court Clerk's Office, concerning the performance of his or her appointed attorney in a Juvenile Court proceeding․  [¶] B. The Court shall review a complaint within ten (10) days of receipt.   If the Court determines that the complaint presents reasonable cause to believe that the attorney may have failed to act competently or has violated local rules, the Court shall notify the attorney in question of the complaint, shall provide the attorney with a copy of the complaint and shall give that attorney twenty (20) days from the date of notice to respond to the complaint in writing.  [¶] C. After a response has been filed by the attorney or the time for submission of a response has passed, the Court shall review the complaint and the response, if any, to determine whether the attorney may have acted contrary to local rules or acted incompetently.   The Court may ask the complainant or the attorney for additional information prior to making a determination on the complaint.  [¶] D. If, after reviewing the complaint, the response and any additional information, the Court finds that the attorney may have acted contrary to the local rules or incompetently the Court may appoint a panel of attorneys not associated with the particular case to review and comment on the complaint or question and report its findings and recommendations to the Court.   The Court may accept or reject the recommendations of the panel or may conduct its own review, thereafter taking appropriate action as determined by the Court to be necessary.  (Eff. Jan. 1, 2005.)” 5

The requirements of Marsden have been explained, in the context of criminal proceedings, by our Supreme Court:

“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance․  A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation ․ or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result․”  (People v. Crandell (1988) 46 Cal.3d 833, 854, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)

The trial court's denial of a request for substitution of counsel is reviewed under the abuse of discretion standard.  (Crandell, supra, at p. 859.)

Father argues that the juvenile court committed reversible error in failing to conduct a “Marsden type” hearing in order to inquire into his grievances about his trial counsel.   According to father, without such a hearing, “it was impossible for the juvenile court to determine whether or not there was any merit to [father's] complaint,” particularly whether an “irreconcilable conflict” existed between him and counsel.   We find no error.

Here, father completed and filed Form No. J-5.05 “COMPLAINT-Performance of Appointed Attorney (Juvenile Court)” on April 27, 2009.   In the form he stated that he had given his appointed counsel, Maria Ramos, extensive papers on his case on April 3, 17, and 20, 2009, but that she had not reviewed them and she claimed not to have received them.   Father complained that he had gone to counsel's office but was told he did not have an appointment.   On the form, father also stated that he did not think his attorney was taking his case seriously.   Finally, father stated that, when he asked the attorney whether she had “pulled” his other family law court file, which he had asked her to do, to see how many times the twins' mother had taken him to court, the attorney stated that she did not have time.

On that same date, Commissioner Williamsen signed the complaint and checked the box stating that “there is ․ reasonable cause to believe that the attorney named above may have failed to act competently or may have violated local or state rules in a Juvenile Court proceeding.”   The court gave the attorney 20 days to respond to the complaint in writing.   The form further stated, “The Court will review the complaint and response, if any, to determine if you may have acted incompetently or contrary to local rules, or may ask for additional information prior to making a determination.”

At the previously scheduled jurisdiction and dispositional hearing on May 1, 2009, the dependency court continued the matter in order to allow Attorney Ramos to respond.   At the hearing, father stated that he had done some “research” and had a specific attorney in mind to replace Attorney Ramos.   The court explained that it had not yet decided whether Ramos needed to be replaced, but if it did, it would appoint the next attorney according to the “level of priority.”

Attorney Ramos filed an immediate response to father's complaint.   In it she objected to father's allegations and set forth a detailed “timeline” of her contacts with father, beginning on February 24, 2009.   The timeline revealed as follows:

A. The attorney received a number of phone calls from father and, at an in-person meeting on March 4, 2009, father gave Ramos numerous documents to copy, including letters from the mother, emergency response referral sheets, police reports, and other CPS and family law legal documents.   He brought pictures of his van and of the children and numerous audio tapes together with a tape player.   Father explained to Ramos that he thought the allegations of sexual molest by J.W. were false and he discussed potential witnesses for a contested hearing.

B. During the month of March, Attorney Ramos made calls to San Joaquin County Human Services to inquire into its CPS records, as requested by father, and requested the family law file for review.   Ramos did not return a call from K.W.

C. In April of 2009, Attorney Ramos attempted to return a call from father, but was not able to reach him.   When she called another number, she got K.W. and J.W.'s message machine.   She did not leave a message on that machine “as it was clearly not [father's] message machine.”   At the April 3, 2009, initial jurisdiction/disposition hearing, Ramos requested a contested hearing “per [father's] request.”   At the hearing, the juvenile court stated that it would do an in camera review of the San Joaquin County records and “release all relevant documents to [Ramos] for distribution to all parties.”   A scheduled appointment with father on April 10, 2009, had to be rescheduled due to a court appearance, and another appointment was set for April 13, 2009.   When father arrived for the April 13, 2009, appointment, Ramos explained that she had not yet received the records from San Joaquin County and asked that he come back the following week to discuss them.   When Ramos was able to get the documents, she had copies of the documents faxed to father “per his request.”   Father was unsure whether he had received all of the faxed pages, so Ramos sent father a copy with a cover letter to be certain that he had.   At the time set for the contested jurisdiction/disposition hearing, Ramos informed the court that she had subpoenaed and, out of an abundance of caution, re-subpoenaed, records and had received some records the second time that were not included in the first set.   She then asked for a brief continuance to review the additional records.

D. Ramos set an appointment with father on April 23, 2009, to discuss testimony at the upcoming contested hearing.   Ramos asked that father come early to view the videotaped interview of his children.   Father watched approximately 5-10 minutes of video, and “came out of the room upset saying that the boys were being manipulated.”   When father asked about the upcoming hearing, Ramos explained that the social worker would recommend sole legal and physical custody be given the twins' mother and that father receive supervised visits.   Hearing this, father “became upset ․ and asked ․ how he could get another court appointed attorney,” because, according to father, Ramos did “nothing to help him.”   Ramos provided father with the necessary complaint form.   Later that day, father called and asked that the pictures, audio tapes, and recorder be returned to him, which Ramos did.

E. Ramos stated that she reviewed the documents given to her by father as well as those received through subpoena;  she read all reports and discovery provided by the Community Services Agency in support of its petition and recommendation;  she reviewed the videotaped interview of the twins;  she prepared a “tentative witness list for the contested hearing and gathered document evidence”;  and she requested the presence of the placement worker at the jurisdiction/disposition hearing because father believed the placement worker overheard the children saying that their mother made them say they were molested.   In closing, Ramos stated that she takes her cases “seriously and was diligently preparing for the pending jurisdiction/disposition hearing” for the twins.

On May 7, 2009, the juvenile court denied father's request for appointment of different counsel, “Under Local Rule 5.05,” stating, in relevant part:  “Having considered the Complaint-Performance of Appointed Attorney (Juvenile Court) submitted by [father] and the Declaration of [Attorney] Ramos, the Court finds there is not reasonable cause to believe that the attorney appointed for [father] may have failed to act competently or may have violated local or state rules in a Juvenile Court.”

At the subsequent May 13, 2009, scheduled jurisdiction/disposition hearing, at which father was present, Ramos asked for a brief continuance, stating:  “My client and I are now working together.   We had a lengthy conversation yesterday.   He and I feel we need to have a one-on-one personal meeting at my office before going forward before being prepared for testimony and given the fact that we did not have communication for almost a month.”   Father did not object to Ramos's statement, and father, through Ramos, then requested that the twins be present at the upcoming hearing.

We conclude that father was given the opportunity to express his concerns and did so in written detail.   Counsel also responded in detail, addressing each of father's concerns.   Despite father's claim to the contrary, we find nothing in father's complaint or the statements made by Attorney Ramos in her response to the complaint or at the subsequent hearing on May 13, 2009, which could be interpreted to mean that an irreconcilable conflict may have existed between Ramos and father.   Having reviewed father's concerns and counsel's response, the juvenile court adequately addressed father's grievances.  (People v. Crandell, supra, 46 Cal.3d at p. 854.)   Nothing more was required.

In addition, based on the record, we believe that the juvenile court reasonably found that counsel's representation was adequate and that counsel had worked diligently on father's behalf.   There is nothing in the record to suggest that counsel failed to investigate the allegations in the section 300 petition, that counsel failed to communicate with father prior to the jurisdiction/disposition hearing, or that counsel failed to zealously advocate on his behalf.   Father points to counsel's statement at the May 13, 2009, hearing in which counsel stated that she and father had not spoken in a month.   But since father asked counsel to provide him with a copy of the complaint form to state his grievances on April 23, 2009, it only makes sense that counsel did not have contact with father until after the issue was resolved two weeks later on May 7, 2009.

We find there was no abuse of discretion in the juvenile court's denial of father's motion for substitution of counsel.   The court fully explored the basis for the motion and reasonably concluded that substitution was not warranted.  (People v. Crandell, supra, 46 Cal.3d at p. 859.)

2. Did the juvenile court abuse its discretion in ordering supervised visitation?

Father contends that the juvenile court abused its discretion when it reduced his scheduled visits with the twins.   As argued by father, the new visitation orders were unduly restrictive and improperly gave mother and the twins authority over the visits and telephone contacts.   We find no abuse of discretion.

As a result of the proceedings, a new custody and visitation order was issued giving the mother sole legal and physical custody, restricting father's visits to supervised visits once a month, and granting him twice a month telephone calls to the twins, monitored by mother via speaker phone.   The juvenile court added that, if either party wished to modify these orders, father would need to prove that he had attended counseling to address “sexual abuse protection issues” and parent-child counseling.

When the juvenile court terminates its jurisdiction over a dependency case, as it did here, it may also issue an exit order, which can determine custody or visitation orders that will be transferred to an existing family court file. (§§ 362.4, 364.)   The court has broad discretion in making these orders.  (See In re Chantal S. (1996) 13 Cal.4th 196, 214.)   We will not disturb the juvenile court's determination about an exit order in a dependency proceeding “ ‘ “unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ ”  (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)  “The standard which governs all determinations in dependency proceedings is to protect the welfare and best interests of the child.”  (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569.)   Thus, when creating an exit order, the standard the juvenile court must consider is the best interests of the child.   (See In re John W. (1996) 41 Cal.App.4th 961, 973-974;  In re Jennifer R. (1993) 14 Cal.App.4th 704, 712;  In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.)   The juvenile court “must look to the totality of a child's circumstances when making decisions regarding the child.”  (In re Chantal S., supra, at p. 201.)

The visitation order challenged by father was made as part of the juvenile court's exit orders pursuant to section 362.4, when the court terminated jurisdiction and dismissed the dependency case.   Section 362.4 does not require a finding of detriment to deny visitation in the exit orders.   The Legislature knows how to require the juvenile court to make an express finding of detriment, and it did not do so here.

Here, the record supports the juvenile court's decision to limit contact between father and the twins to once a month supervised visitation and twice a month telephone contact.   Father refused to believe that J.W. had sexually abused the twins, he refused to attend counseling, and he continued to berate the twins when he spoke to them on the telephone.   Mother testified that the twins did better when contact with father was limited.   Under these circumstances, we cannot say the juvenile court abused its discretion in limiting father's visitation in the exit orders.   The court exercised its discretion, guided by the best interests of the twins, in determining how often to permit visitation and telephone contact. (§ 362.4;  see In re John W., supra, 41 Cal.App.4th at p. 973;  In re Jennifer R., supra, 14 Cal.App.4th at p. 712;  In re Roger S., supra, 4 Cal.App.4th at pp. 30-31.)

Moreover, even if a finding of detriment had been required, there was ample evidence that more extensive visitation would be detrimental to the twins and that severe limitation of visitation was in the children's best interest.   The twins both expressed frustration that father did not believe them and that he believed J.W. instead.   The juvenile court stated in its ruling that, although father testified that he would be willing to keep J.W. out of the house when the twins visited, it did not believe any plan to do so during the twins' visits would ever come to fruition, instead believing that father would continue to allow both K.W. and J.W. access to the twins.

We disagree with father that the juvenile court orders were an improper delegation of judicial authority because they purportedly gave almost complete discretion to the mother as to whether the visits would occur and gave discretion to the boys as to whether telephone contact would occur.   The order regarding visitation clearly states that visits are to be once a month and supervised by Sierra Vista or an agreed upon professional supervisor.   The timing of the visits was left to the discretion of the mother, who would best know the twins' schedules, but it did not give her the authority to cancel or deny visits if the terms of supervision were met.   As for the telephone visits, while the mother was given authority to terminate any telephone conversation that was not appropriate in content or tone, the court specifically stated that father was the one to make the calls “between 7:00 and 7:30 the first and third Monday of every month if he wants to have a visit.”

In sum, father has not established that the juvenile court abused its discretion by limiting his visitation in the exit orders.   We conclude there was substantial evidence to support the visitation order.

We do note a discrepancy between the visitation order and the pronouncement of that order at the contested hearing.   At the hearing, the court stated father was to have supervised visits with the children “a minimum of one time per month.”   The visitation order states the supervised visits are to be “one time per month.”   We will remand strictly to clarify this discrepancy.   If the visitation is to be “a minimum of one time per month” rather than a strict “one time per month,” the visitation order is to be amended accordingly.

DISPOSITION

We remand to the superior court and direct that it clarify the visitation order as to the number of visits per month.   In all other respects, we affirm.

DAWSON, J.

WE CONCUR:

WISEMAN, Acting P.J.

KANE, J.

FOOTNOTES

FN1. The notice of appeal states that father is appealing the findings and orders of the court made on June 4, 2009, which was the date of the oral decree.   The notice is signed by counsel on June 16, 2009, and filed by the clerk of the court on June 22, 2009, after the judgment was filed.   We construe the appeal as taken from the June 22, 2009, written judgment.   (Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal must be liberally construed].).  FN1. The notice of appeal states that father is appealing the findings and orders of the court made on June 4, 2009, which was the date of the oral decree.   The notice is signed by counsel on June 16, 2009, and filed by the clerk of the court on June 22, 2009, after the judgment was filed.   We construe the appeal as taken from the June 22, 2009, written judgment.   (Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal must be liberally construed].)

FN2. The “van” refers to an unregistered 1973 Ford Supervan that had been parked since 1996 under a canopy along the side of father's home..  FN2. The “van” refers to an unregistered 1973 Ford Supervan that had been parked since 1996 under a canopy along the side of father's home.

FN3. All further statutory references are to the Welfare and Institutions Code unless otherwise stated..  FN3. All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

FN4. People v. Marsden (1970) 2 Cal.3d 118..  FN4. People v. Marsden (1970) 2 Cal.3d 118.

FN5. We note that both parties rely on the version of rule 5.05, which was, in part, amended July 1, 2009, after the time applicable here.   As amended that rule states, in relevant part:“A. Any party to a Juvenile Court proceeding may complain about the performance of his or her appointed attorney in a Juvenile Court proceeding.   This complaint may be made orally at a court proceeding or by filing a written complaint with the Juvenile Court Clerk's Office․  (07/01/09) [¶] B. The Juvenile Court shall conduct a hearing to review the complaint as soon as possible, prior to any further substantive hearings on the matter, and no later than ten (10) days from receipt of the complaint.   The Attorney will be given the opportunity to respond.  (07/01/09) [¶] C. If, after reviewing the complaint, the response and any additional information, the Court finds that the attorney may have acted contrary to the local rules or incompetently the Court may appoint a panel of attorneys not associated with the particular case to review and comment on the complaint or question and report its findings and recommendations to the Court.   The Court may accept or reject the recommendations of the panel or may conduct its own review, thereafter taking appropriate action as determined by the Court to be necessary. (01/01/05)”.  FN5. We note that both parties rely on the version of rule 5.05, which was, in part, amended July 1, 2009, after the time applicable here.   As amended that rule states, in relevant part:“A. Any party to a Juvenile Court proceeding may complain about the performance of his or her appointed attorney in a Juvenile Court proceeding.   This complaint may be made orally at a court proceeding or by filing a written complaint with the Juvenile Court Clerk's Office․  (07/01/09) [¶] B. The Juvenile Court shall conduct a hearing to review the complaint as soon as possible, prior to any further substantive hearings on the matter, and no later than ten (10) days from receipt of the complaint.   The Attorney will be given the opportunity to respond.  (07/01/09) [¶] C. If, after reviewing the complaint, the response and any additional information, the Court finds that the attorney may have acted contrary to the local rules or incompetently the Court may appoint a panel of attorneys not associated with the particular case to review and comment on the complaint or question and report its findings and recommendations to the Court.   The Court may accept or reject the recommendations of the panel or may conduct its own review, thereafter taking appropriate action as determined by the Court to be necessary. (01/01/05)”

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