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IN RE: CHANTAL S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent v. RANDALL S., Defendant and Appellant.
OPINION
The respondent father appeals a custody order 1 granting sole custody of his daughter Chantal S. to her mother. After the order was signed, the child's minor's dependency proceeding was dismissed. On appeal father contends that: (1) the court was without statutory authority to require him to submit to counseling, and (2) the court's visitation order amounts to an unlawful delegation of judicial authority to the minor's therapist. We find no merit to the contentions and affirm.
PROCEDURAL HISTORY
An amended petition was filed March 11, 1993, on behalf of the minor, who was then three years old, and another sibling alleging that the minor came within the provisions of Welfare and Institutions Code section 300, subdivision (b) 2 , failure to protect, section 300, subdivision (c), infliction of serious emotional damage, and section 300, subdivision (d), sexual abuse by the father. The only allegation in the petition against the mother was that she “[h]as a limited ability to provide adequate supervision and protection for the minor.”
A contested jurisdictional hearing was set for April 28, 1993. Father was in custody at the time of the hearing, apparently on an unrelated felony charge of a violation of Penal Code section 496, and on a second separate case of sexual battery in violation of Penal Code section 243.4. No witnesses were called at that hearing, and while the record is not clear, it appears that the issues were submitted on the reports. At that time the court sustained the following allegations under section 330, subdivision (b):
“b–2 The father of Chantal does not reside in the home with the minors and the mother has a limited ability to provide adequate supervision and protection for the minor.
“b–4 The father of Chantal uses alcohol which significantly impairs his ability to parent the minor.
“b–5 The minors have been exposed to domestic violence during visitations with Mr. [S.], placing the minors at risk of similar abuse.”
The court also sustained an allegation under section 300, subdivision (c) that “[t]he minor, Chantal [S.], is at substantial risk of suffering emotional damage evidenced by severe anxiety and withdrawal towards her father (i.e., refuses to have any further contact with Mr. [S.]).”
Each of the four allegations of sexual abuse under section 300, subdivision (d) were ordered stricken by the court.
An in-home dependency was created by the court with custody of Chantal given to the mother. It appears that mother had custody pursuant to a family law order prior to the filing of the petition. Mother was given a service plan while father had a reunification plan established for him.
Father was later sentenced to three years in state prison on the criminal charges. A review hearing was scheduled.
Prior to the review hearing set for October 27, 1993, the social worker then assigned to the case recommended to the court that the dependency be terminated on the basis of the mother's completion of and compliance with her service plan and that the mother be awarded sole legal and physical custody of Chantal. The father objected to a termination of the court's jurisdiction, and the matter was set for contested hearing on the dismissal recommendation.
After hearing testimony at the contested termination hearing the court on March 7, 1994, ordered the dependency dismissed stating:
“I think that this child can be protected through appropriate family law orders. And I would—at this time I would order that the custody of this minor be placed with the mother, Lori Koster, legal and physical custody. That appropriate—and I would make appropriate family law orders in accordance with the recommendations of Ms. Child's [Chantal's therapist], those orders are pretty specific.
“Ms. Childs would indicate that there should not be any visitation between the father and Chantal until Mr. [S.] undergoes psychotherapy with a therapist qualified to work with issues such as Mr. [S.]'s.
“Mr. [S.] must attend therapy regularly, make satisfactory progress for a time before any visits as determined by his therapist and at that time visits are scheduled to begin, Mr. [S.] must sign a release of information with me—with Ms. Childs so that she can obtain information from his therapist regarding his progress. Any visits should occur initially in Ms. Child's office.
“Once Mr. Goldstein [counsel for mother] prepares a family law order with those specific requirements set out then I would be willing to sign such an order and terminate the dependency in this case.”
Such a family law order was prepared with a separate case number (presumably the same case number of the existing family law case filed before the dependency petition was filed) from the dependency case and signed by the court. The dependency was then dismissed.
DISCUSSION
Father now contends that the “exit” order signed by the court was in excess of the juvenile court's jurisdiction and violated his due process rights. Specifically, he contends that the court lacked authority to order counseling as a condition of visitation, and even if it did, the court erred in leaving the counseling term open-ended rather than following Family Code section 3190 which requires the court to limit such orders to no longer than a year's duration. He further contends that even if the court could make the order, that it is nonetheless an unlawful delegation of judicial power because it left unfettered discretion with the minor's therapist to determine when visitation would occur.
A. The court's order was not in excess of its jurisdiction nor did it violate father's due process rights.
Father relies almost exclusively on the recent case of In re Katherine M. (1994) 27 Cal.App.4th 91, 33 Cal.Rptr.2d 298. There a husband and wife had quarreled with one another to the extent a dependency petition was filed under section 300, subdivision (c) alleging that the parents' conflict with each other placed the minors at risk of severe emotional problems. The court took jurisdiction and implemented a reunification plan. The father progressed well enough that the court placed the children with him under the court's supervision. Later, the social worker assigned to the case determined that the dependency was no longer needed and recommended to the court that it dismiss the case with an appropriate “exit” order. The parents did not contest the dismissal. However, the father sought sole legal and physical custody while the mother sought evenly shared physical custody. (Id. at pp. 93–94, 33 Cal.Rptr.2d 298).
A hearing was held at the conclusion of which the court ordered the dependency dismissed and entered a custody order pursuant to Family Code section 3006 granting sole legal custody to father with the understanding that the court would give further consideration to joint legal custody at the end of a year's time. Pursuant to Family Code section 3004 the court ordered that the parents share physical custody. These orders were conditioned upon the mother remaining in individual psychotherapy. The court did not specify how long the mother would be ordered to undergo therapy. After the orders were made, the court dismissed the dependency. (Id. at pp. 95–96, 33 Cal.Rptr.2d 298.)
Mother appealed, and the court reversed that portion of the custody order which conditioned the mother's custody rights on her remaining indefinitely in psychotherapy. The court held that the order violated the mother's due process rights because it failed to comply with all of the procedural safeguards contained in Civil Code section 4608.1 (now transferred effective January 1, 1994, to Fam.Code, §§ 3190–3192 3 ) in fashioning its custody and visitation order.
The court in In re Katherine M. at page 97, 33 Cal.Rptr.2d 298 stated, “[t]he problem presented in this case is that there is no clear statutory authority for a juvenile court ‘exit’ order requiring a parent to submit to counseling when his or her child is no longer to be the subject of dependency proceedings and, presumably, the conditions that brought the child within the juvenile court's jurisdiction have been eliminated. (Cf. [Welf. & Inst.Code] § 362, subd. (c).) This problem persists even when the court purports to require the counseling in connection with, or as a subsidiary term of, an ‘order determining custody’ of a child. (See [Welf. & Inst.Code] § 362.4; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1503 [285 Cal.Rptr. 374] [Welf. & Inst.Code] section 362.4 does not authorize orders ‘relating to’ visitation or custody].)”
We simply disagree with the court in In re Katherine M. that section 362.4 does not authorize a court to order counseling as a precondition to either visitation or custody. Its reasoning is incorrect.
Section 362.4 provides in relevant part that “[w]hen the juvenile court terminates its jurisdiction over a minor[,] ․ the juvenile court on its own motion, may issue ․ an order determining the custody of, or visitation with, the child.” The court in In re Katherine M. relied on In re Sarah M., supra, 233 Cal.App.3d 1486, 285 Cal.Rptr. 374 for its holding that the dependency court lacks authority to order counseling. In our view In re Sarah M. is also incorrect.
First, the court in In re Sarah M. just looked at the bald wording of section 362.4 and simply concluded that an order for psychotherapy as part of an exit order was not authorized because the statute limits the juvenile court's jurisdiction to ordering custody or visitation. The court there cited no other authority for its holding. Counseling is not listed in the statute as an order the court could make in terminating jurisdiction, and the court simply rejected out-of-hand, without discussion or analysis, the argument that an order for counseling or psychotherapy is reasonably related to visitation or custody stating, “[a]ssuming the orders did relate to visitation, section 362.4 does not authorize orders relating to visitation.” (In re Sarah M., supra, 233 Cal.App.3d 1486, 1503, 285 Cal.Rptr. 374, emphasis in original.) The court erred in its analysis.
While section 362.4 does not expressly authorize the juvenile court to order counseling for a parent in its exit order, the court is given the power to order a parent into counseling in a dependency case in section 362, subdivision (c), a statute the opinion does not mention. It provides, “[t]he juvenile court may direct any and all reasonable orders to the parents or guardians of the minor who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out the provision of this section․ Such an order may include a direction to participate in a counseling or education program. ” (Emphasis added.) Certainly, an order for counseling is a reasonable order necessary and proper to a custody or visitation order.
Second, the court in In re Sarah M., supra, 233 Cal.App.3d 1486, 285 Cal.Rptr. 374 simply rejected without analysis the argument that section 362.4 implicitly permits orders relating to visitation. Even without express authorization in the statute itself and even without reference to section 362, subdivision (c), we find it inconceivable that the statute, which authorizes a court to make orders touching upon custody and visitation, would not also inherently authorize collateral orders reasonably and necessarily related to custody and visitation.
In the present case the minor was in therapy and refused to see her father. The court knew that father had problems with alcohol abuse, domestic violence, and perhaps sexual abuse. (We note that the court struck the sexual abuse allegations contained in the petition and did not sustain them.) In order to work toward supervised visitation between the minor and father, the court conditioned its visitation order on the father being involved in a program of therapy. The therapy is a necessary condition precedent to visitation taking place, and as such, the order for therapy is inextricably bound up with the visitation order. In our view section 362.4 in authorizing the court to make custody and visitation orders implicitly authorizes the court to make collateral orders, such as counseling orders, that are reasonably related to the custody and visitation orders. As previously noted, section 362, subdivision (c) also expressly authorizes such counseling orders.
Third, the court's holding is dicta. After the court held that section 362.4 does not authorize counseling as part of an exit order, the court then found that the appellant mother in that case did not have standing to raise the issue because the order affected only the father.
The defendant next contends that the court erred in that the exit order did not comply with Family Code section 3190, and the failure to comply with it deprived him of due process. Once again he relies on In re Katherine M., supra, 27 Cal.App.4th 91, 97–100, 33 Cal.Rptr.2d 298. As noted in footnote 3, ante, Family Code section 3190 states that a family court may order counseling for a parent for a period not to exceed one year provided that the court finds that there is a dispute between the parents or between the parent and child that poses a substantial danger to the best interests of the child, and the court finds that counseling is in the best interests of the child. Subdivision (c) further requires that the order for counseling expressly set forth the reasons to support those findings, and subdivision (d) states that the court shall not order the parties to return upon the completion of counseling. Either party may file a new order to show cause or motion after counseling has been completed, and the court may again order counseling.
The court in In re Katherine M., supra, did not comply with those statutory requirements, and neither did the court in the present case in its exit order. The court in In re Katherine M. held that the failure of the juvenile court to comply with the Family Code violated the mother's due process rights because it failed to comply with all of the procedural safeguards contained in the relevant Family Code sections. Father in the present case contends that In re Katherine M. is directly on point with the present case. On the facts we agree that the cases are very similar; however, we decline to apply the holding in In re Katherine M. that a juvenile court must comply with the Family Code when fashioning an exit order under section 362.4 and terminating jurisdiction. Instead we follow a case from Division One of this court which holds exactly the contrary, In re Jennifer R. (1993) 14 Cal.App.4th 704, 17 Cal.Rptr.2d 759.
In that case the juvenile court entered an exit order granting sole physical and legal custody to the father in the dependency proceeding. The mother there, a schizophrenic with borderline intelligence and a history of substance abuse, agreed to the father having physical custody, but she objected to the father having sole legal custody. The court awarded visitation to the mother supervised by a neutral third party.
On appeal she contended that the court erred. She argued that because the juvenile court planned to terminate its dependency jurisdiction, the court was required to comply with then Civil Code section 4600 et seq. (now Fam.Code, § 3040, effective January 1, 1994) which establishes a presumption in favor of joint legal custody between the parents as being in the best interests of the child. She contended that the evidence presented at the termination hearing was insufficient to overcome the presumption. She argued that since family law would apply in the future after the dependency was dismissed, it must also apply when the court is fashioning exit orders in anticipation of a dismissal of juvenile court jurisdiction. She claimed that she was harmed by the order made by the juvenile court because in future family court proceedings there will be a presumption in favor of maintaining the status quo. (Id. at pp. 706–710, 17 Cal.Rptr.2d 759.)
The court held that the Civil Code has no application in a dependency proceeding. “Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes. ( [Welf. & Inst.Code] § 300 et seq.; Cal.Rules of Court, rule 1440 et seq.) Unless otherwise specified, the requirements of the Civil Code and the Code of Civil Procedure do not apply. (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 245, fn. 3, 264 Cal.Rptr. 4; In re Angela R. (1989) 212 Cal.App.3d 257, 273, 260 Cal.Rptr. 612.) Nowhere does the juvenile law with respect to custody determination specify that Civil Code section 4600 et seq. is to apply to the custody determinations within dependency proceedings.” (Id. at p. 711, 17 Cal.Rptr.2d 759, fn. omitted.)
The court, relying on In re Roger S. (1992) 4 Cal.App.4th 25, 30–31, 5 Cal.Rptr.2d 208, noted that there is a difference in the juvenile court's role in determining the best interests of the child in a dependency proceeding and the role of a family law court in determining the best interests of a child as between two parents under then Civil Code section 4600.
“Although both the family court and the juvenile court focus on the best interests of the child significant differences exist. In juvenile dependency proceedings the child is involved in the court proceedings because he or she has been abused or neglected. Custody orders are not made until the child has been declared a dependent of the court and in many cases, such as this one, the child has been removed from the parents upon clear and convincing evidence of danger. The issue of parents' ability to protect and care for the child is the central issue. The presumption of parental fitness that underlies the custody law in the family court just does not apply to dependency cases. Rather the juvenile court, which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions.” (Id. at p. 712, 17 Cal.Rptr.2d 759.)
The mother in In re Jennifer R., supra, 14 Cal.App.4th 704, 17 Cal.Rptr.2d 759, argued that when a court enters an exit order and terminates a dependency, it implicitly finds that no protective issues continue to exist, and therefore the court is obliged to enter its exit order in conformity with the Civil Code (now the Family Code). The court there disagreed. “The court's determination there was no protective issues was premised upon the existence of its custody and visitation order. The court did not find there would be no protective issues if [mother] had unsupervised visitation rights or joint legal or physical custody. To the contrary, the court's order indicates continuing concerns about [mother's] ability to protect and care for [the child] in any but the most limited circumstances of supervised visits.” (Id. at pp. 712–713, 17 Cal.Rptr.2d 759.) Stated in a different way, it is the court's power in the dependency case to create a protective order to meet the best interests of the child that then allows the court to terminate the dependency case on the basis that court supervision is no longer necessary. As the court in In re Jennifer R., supra, stated, upon a showing of changed circumstances in the future, the parent may seek a change in the custody and visitation order in the family law court. (Id. at p. 714, 17 Cal.Rptr.2d 759.)
We agree with the reasoning of In re Jennifer R., supra, and reject the holding in In re Katherine M., supra, 27 Cal.App.4th 91, 33 Cal.Rptr.2d 298. Consequently, we also reject father's contentions in the instant case that the court was without authority to make the exit order and that it violated father's due process rights.
B. The court did not unlawfully delegate the court's authority to the minor's therapist.
To some extent father's argument that the court's exit order constitutes an unlawful delegation of its authority is intertwined with the previous argument made and discussed, ante. He cites two cases, In re Marriage of Matthews (1980) 101 Cal.App.3d 811, 161 Cal.Rptr. 879 and Camacho v. Camacho (1985) 173 Cal.App.3d 214, 218 Cal.Rptr. 810, which found that orders made in family law court for open-ended psychological therapy violated a parent's due process rights and constituted an unlawful delegation of authority to the therapist.
The legislature responded to the holding in those cases in 1989 by enacting Civil Code section 4608.1 (now Fam.Code, §§ 3190–3192) which provides the due process protections that were found lacking in those cases. (In re Katherine M., supra, 27 Cal.App.4th 91, 99–100, 33 Cal.Rptr.2d 298.) Once again we reject the argument based on In re Matthews and Camacho, supra, because as stated, ante, we find that the Family Code simply has no application in dependency cases. In re Katherine M. expressly acknowledges that there is nothing in the Family Code to make its provisions applicable in dependency cases (id. at p. 97, 33 Cal.Rptr.2d 298), and that is also the conclusion of the court in In re Jennifer R., supra, 14 Cal.App.4th 704, 711, 17 Cal.Rptr.2d 759. Family Code section 3021 states that the custody provisions of the Family Code apply in proceedings for dissolution, for nullity of marriage, for legal separation, or in proceedings to determine custody of or visitation pursuant to the Domestic Violence Prevention Act or pursuant to the Uniform Parentage Act. That section makes no mention of custody in a dependency case. Therefore, the court in the present case did not have to limit the therapy to one year or make the express findings required by Family Code section 3190.
Nor do we find that the court otherwise delegated its judicial authority to the minor's therapist in the present case. The court may delegate the ministerial details of visitation such as time, place, frequency, and manner and length of visitation. Only when the visitation order delegates absolute discretion to determine whether any visitation occurs does the order violate the statutory scheme and the separation of powers doctrine. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373–1374, 28 Cal.Rptr.2d 705.) There is no unlawful delegation of judicial power where the court has decided a parent's right to visitation and where the court has provided broad guidelines as to the prerequisites of visitation or any limitations or required circumstances. (Id. at pp. 1376–1377, 28 Cal.Rptr.2d 705.)
Clearly the order in the present case did not delegate absolute discretion to the minor's therapist to determine if any visitation at all would occur. The order specified that the father's visitation was to be “facilitated” by the minor's therapist. We do not interpret the term “facilitated” as granting to the minor's therapist unfettered power, as father claims, to determine whether visitation will occur at all. We ascribe to it its usual meaning that the minor's therapist was to assist with visitation and make it easier.
The order clearly contemplates that visitation will occur when certain reasonable conditions precedent have taken place. Father must be in therapy with a therapist qualified to work with the “issues” or problems the father was having. Once the father was attending therapy regularly and was making satisfactory progress as determined by his therapist, not the minor's therapist, visitation could occur. The order also required father to sign a release of information so that the father's therapist could share with the minor's therapist information regarding father's progress in therapy in preparation for resumption of visitation. There was no unlawful delegation of authority.
Finally, father raises for the first time new issues, including the issue of the vagueness of the court's order, in his reply brief. He contends among other things that the order is vague because it does not specify what the issues are that father must work on in therapy. The court did not sustain, but rather struck, the sexual abuse allegations contained in the petition. He implicitly inquires if sexual abuse is one of the “issues” that he must address in therapy. We will not address new issues raised for the first time in the reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8, 265 Cal.Rptr. 788.)
DISPOSITION
The order is affirmed.
FOOTNOTES
1. Father has requested that the court take judicial notice of the order which is not a part of the record on appeal. He has provided a copy of it, and there is no opposition to the request. Since it is central to the issues on appeal, we grant the request. The order was filed May 3, 1994. It reads:“Visitation order for father, Randy [S.] to be facilitated by the minor's therapist, Diane Childs.“Before visitation with father and his daughter can occur, father must be:“1. In psychotherapy with a therapist qualified to work with issues such as Mr. [S.]'s.“2. Father must attend therapy regularly and make satisfactory progress for a time before any visits as determined by his therapist.“3. At the time that visits are scheduled to begin, Mr. [S.] must sign a release of information to Ms. Childs to obtain information from his therapist regarding progress in therapy and to allow Ms. Childs to relay issues she sees during visits that are of a concern for her.“4. Father will be financially responsible for these visits. Payment to be at the beginning of all visits.“5. Visits will be in Ms. Child's [sic ] office; Familiar surroundings for Chantal.”
2. All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
3. Family Code section 3190 provides in relevant part:“(a) The court may require parents involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional ․ for not more than one year ․ if the court finds both of the following:“(1) The dispute between the parents or between a parent and child poses a substantial danger to the best interest of the child.“(2) The counseling is in the best interest of the child.“․“(c) The court, in its finding, shall set forth reasons why it has found both of the following:“(1) The dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child.“(2) The financial burden created by the court order for counseling does not otherwise jeopardize a party's other financial obligations.” (Emphasis added.)
McKINSTER, Associate Justice.
RAMIREZ, P.J., and HOLLENHORST, J., concur.
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Docket No: No. E014401.
Decided: April 19, 1995
Court: Court of Appeal, Fourth District, Division 2, California.
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