In re Amanda Y.

Filed 9/18/07 In re Amanda Y. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minors.

Appellant Donald Y. (father) appeals from a juvenile court order finding that visitation would be detrimental to his daughters, Lisa (currently 16 years old) and Amanda (currently 9 years old) (the children). Father argues that the order should be reversed because the juvenile court abused its discretion in suspending visitation, since there was insufficient evidence that visits with the children were detrimental. He also contends that the court improperly delegated authority to the San Bernardino County Department of Childrens Services (the department) to decide if visitation should resume later. We affirm.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

On September 11, 2006, the department filed Welfare and Institution Code section^[2]300 petitions on behalf of the children. The petitions alleged that the children came within the provisions of section 300, subdivision (a) (serious physical harm), subdivision (b) (failure to protect), subdivision (c) (serious emotional damage), and subdivision (d) (sexual abuse). Specifically, the petitions alleged that: father shoved Lisa during an altercation on September 2, 2006; there was a history of father using physical restraints on Lisa; there was a history of father covering Amandas mouth and nose while she was crying, to the point that she had trouble breathing; father and the childrens mother (mother)^[3]had substance abuse histories; the children suffered from severe mental damage as a result of the conduct of father and mother, and; Lisa was sexually molested by mothers boyfriend.

In the detention report, the social worker reported that Lisa said father drank beer at a local bar and then came home and drank some more beer at a neighbors house. When Lisa tried to take a can of beer away from him, an argument and scuffle ensued, from which Lisa sustained a bruised left arm. The next day, Lisa went to school, disclosed what happened, and stated that she would commit suicide if she had to go back to fathers home. Lisas stepmother, Shannon B., stated that she had heard father call Lisa names, such as scizo-freak [sic] and bitch. Shannon B. also said that she had seen father restrain Lisa in a full frontal hug and lie on top of her on a bed, despite the fact that Lisa had said she was raped by mothers live-in boyfriend when she was 13 years old. Shannon B. further stated that she had seen father put his hand over Amandas mouth and nose to try to make her stop crying, which caused her to struggle for breath.

A detention hearing was held on September 12, 2006. The court placed the children in the temporary custody of the department and detained them in foster care. The court ordered visitation to be once per week, supervised by the department.

Jurisdiction/Disposition

The social worker prepared a jurisdiction/disposition report recommending that the children be declared dependents of the court and that father and mother be provided with reunification services. The social worker reported that she interviewed father on September 7, 2006. Father admitted that, on September 2, 2006, he took Prozac and Xanax and drank two pitchers of beer at a bar. He said he asked Shannon B. for a ride home from the bar, but denied that he was drunk. He then drank two beers at his neighbors house. Father denied that there was an altercation between him and Lisa. He said that he took a can of beer out of Lisas hand, and she lost her footing. Father denied that he ever called Lisa names, except that he had called her stupid a couple of times. Father stated that he had restrained Lisa before by pushing her on the bed, sitting by her side, and holding her down, in order to talk to her. In addition, father denied that he had ever put his hand over Amandas mouth to stop her from crying. He also denied having a problem with taking prescription medications and drinking. He admitted that he was previously arrested for possessing cocaine, and that he was arrested for driving under the influence on January 13, 2006. The social worker reported that father did not feel that he had problems that required the departments intervention, and that the problems all stemmed from Lisa and her inability to conform to what he wants.

The social worker also interviewed Amanda, who said that her father rarely drinks alcohol. She denied that father and Lisa got into an argument on September 2, 2006, or that father or mother had hit or hurt her in the past. The social worker noted that Amanda was very guarded in her answers, and that she appeared to have suppressed most of her memories as to what had occurred in her home life.

The social worker interviewed Lisa on September 11, 2006. Lisa said father physically abused her by holding her by the back of the neck, punching her in the arms and chest, pinching her, holding her body from behind, and holding her body in a full frontal hug and lying on top of her on the bed to restrain her. She stated that physical abuse occurred when father was sober, as well as when he was drinking. Lisa said that when she was six years old, father accused her of taking a piece of jewelry from mother, and he tied a rope around her hands and hung her from a door hook.

At a hearing on October 19, 2006, counsel for the children informed the court that Lisa no longer wished to visit with father. Lisa said that at a recent visit an argument ensued, and she was made to feel that the dependency case was all her fault and that father was the victim, not her. Fathers counsel said that father was willing to respect Lisas wish not to have visitation, but he still wanted supervised visitation with Amanda The social worker interjected that father was apparently discussing the case with Lisa. The court reminded father that he was previously ordered not to discuss the case with the children. The court then found it detrimental for Lisa to have visitation with father and suspended it, but continued visitation with Amanda.

The jurisdiction/disposition hearing was held on January 22, 2007. The social worker testified at the hearing and recommended that there be no visitation for father at that point, until a counselor had had more opportunities to work with the children. The social worker opined that Lisa was emotionally fragile. She had been acting out, had mood swings, and had had numerous problems in her group home. Lisa had stated that she would commit suicide if she was sent back to fathers home. The social worker noted that Lisas desire to visit father fluctuated. The social worker concluded that visitation between father and Lisa was detrimental because Lisa had tried to please father a lot over the years, and she was still very conflicted by it. Lisa had a lot of anger issues. It was recommended that she participate in anger management, but she refused.

As to Amanda, the social worker testified that just that morning, Amanda told another social worker that she did not want to see or be around father. She said she was afraid of him and did not want to have any more visits with him. Amanda disclosed to the social worker that father had physically hurt her and Lisa over the years. She said he beat her with his fists and other utensils, with her clothing on and off. The social worker described the supervised visits between father and Amanda: father would sit on the couch, and Amanda would play with the toys, with her back toward him. She refused to have eye contact with him, and she did not want to have any physical contact either. The social worker added that Amanda had a problem with encopresis (involuntary defecation) at school and home, but since father had failed to visit with her the past three weeks, she had not had that problem. When asked her opinion about whether the encopresis was related to Amandas trauma in visiting with father, the social worker said, Appears that way. The social worker admitted that she was not qualified to state the exact reason that Amandas encopresis had stopped. She was simply speculating, based on the fact that the only change in Amandas circumstances, when the encopresis stopped, was that she had not been visiting with father. The social worker concluded that visitation with Amanda was detrimental at that time.

On cross-examination, the social worker said that a few weeks earlier Lisa said she did not want to have visits with father. Since then, Lisa went back and forth about wanting visits. Lisa said she wanted to have some phone conversations, and that she might like to start some visits. When the social worker asked Lisa that morning if she wanted to have visits with father, Lisa said she wanted to have contact. However, she did not specify if she wanted phone contact or physical visits. The social worker added that she wanted the children to have conjoint visits when the therapist agreed that it would not be detrimental. When the social worker was asked whether Amandas counseling could have been part of the reason that she had not been struggling with encopresis recently, she replied that she did not think she was qualified to answer that question; she said Amandas counselor would have to answer it.

Father also testified at the hearing and was asked whether he would visit his children if the department required him to participate in a drug program first. He said he would opt not to visit. He acknowledged that Lisa said she did not want to have visits, but claimed she had changed her mind during two phone conversations. He further stated that he did not want to force her to visit if she did not want to. Father admitted that he knew that he was not supposed to drink alcohol after taking his prescription medications. He also admitted that, on September 2, 2006, he drank alcohol and took Prozac and Xanax.

The court found true the allegations in the petitions and found that the children came within the provisions of section 300, subdivisions (a) through (d). The court determined that the childrens placements were appropriate and necessary. It further found that visits with father were detrimental at that point and suspended them. However, the court gave the social worker authority to set up conjoint counseling as soon as it was deemed appropriate by the childrens counselor.

ANALYSIS

I. The Court Properly Found That Visitation With Father Was Detrimental

Father argues that there was insufficient evidence of detriment to warrant suspending visits between father and the children. We disagree.

A. Standard of Review

With regard to visitation orders, [t]he trial court is accorded wide discretion and its determination will not be disturbed on appeal absent a manifest showing of abuse. [Citation.] (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

B. There Was No Abuse of Discretion

The court may deny a parent visitation if it would be harmful to the childs emotional well-being. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) Here, the evidence clearly showed that visitation with father and the children would be detrimental. At the jurisdiction/disposition hearing, the social worker recommended that there be no visitation for father until a counselor had had more opportunities to work with the children. As to Amanda, the record showed that her stepmother said that she had seen father put his hand over Amandas mouth and nose to try to make her stop crying, and it caused her to struggle for breath. On the morning of the jurisdiction/disposition hearing, Amanda said she did not want to see or be around father because she was afraid of him. Amanda told a social worker that father had physically hurt her and Lisa over the years. She said he beat her with his fists and other utensils, with her clothing on and off. Supervised visits between father and Amanda demonstrated her fear of him. Father would sit on the couch and Amanda would play with the toys, with her back toward him. She refused to have eye contact with him, and did not want to have physical contact with him either. Furthermore, the social worker said that Amanda had a problem with encopresis at school and home, and she observed that when father did not visit Amanda recently, Amanda did not have that problem. It was reasonable for the social worker to infer that Amandas problem stopped as a result of not visiting father, since the lack of visitation was the only variable that had changed.

As to Lisa, the social worker opined that visitation with father was detrimental because she had tried to please him over the years, she was still very conflicted about him, and she had a lot of anger issues. The social worker felt that Lisa was emotionally fragile, as shown by her mood swings, acting out, problems in her group home, and threat to commit suicide if she was sent back to fathers home. Furthermore, the record indicated that father used to physically abuse her, especially when he was drinking alcohol. Moreover, during one visit, father talked to Lisa about the dependency case, against the courts order, and made her feel that he was the victim, and blamed the dependency case on her. As a result, Lisa said she did not want to visit with father anymore. The court found visitation detrimental and suspended it even before the jurisdiction/disposition hearing.

Father points out that Lisa changed her mind and decided that she wanted to have contact with him again. Citing In re Michael M. (1996) 51 Cal.App.4th 1074, 1088 (Michael M.), father argues that her stated desires should have been given more weight as compelling evidence that it would be in her best interest to have visitation with him. However, Michael M. is distinguishable. The court in that case held a hearing to determine custody of the child, and the child testified. The court based its final custody determination on its observations of the childs behavior during the hearings, including the childs clear and consistent preference for living with his mother. (Ibid.) The court also noted that there was no evidence presented indicating that living with his mother would be contrary to the childs best interest. (Ibid.)

In contrast, Lisa did not testify before the court here, and, as acknowledged by the social worker, Lisas desire to visit with father fluctuated. Furthermore, on the morning of the hearing, Lisa merely said she wanted to have contact with father, but did not specify if she wanted phone contact or physical visits. Furthermore, as noted above, there was plenty of evidence presented showing that visitation with father would not be in Lisas best interests.

In addition, father argues that it was crucial, at that point in the proceedings, for the court to at least order visitation in a therapeutic setting, as opposed to no visits at all. We recognize visitation is a critical element of the reunification process, and note that the court only suspended visitation; it did not terminate visitation. Thus, the court can order visitation to be resumed at any time it deems appropriate.

In view of the evidence, we conclude that the court properly exercised its discretion and suspended visitation.

II. The Court Did Not Delegate the Authority to Determine

Whether Visitation Should Resume

Father claims that the court improperly delegated to the department the authority to determine whether visitation should later resume. The record belies fathers claim.

Father relies upon In re Donnovan J. (1997) 58 Cal.App.4th 1474 (Donnovan J.), in which the juvenile court stated in its order that the father had no visitation rights without permission of minors therapists. (Id. at p. 1476.) The appellate court concluded that the portion of the order giving the therapists sole discretion constituted an unlawful delegation [of judicial authority]. (Id. at p. 1478.)

In the instant case, the court expressly declared that visitation was detrimental, suspended the visits, and stated that it was going to give the social worker authority to set up con-joint [sic] counseling as soon as its deemed appropriate by the childrens counselor. (Italics added.) The courts words are unambiguous. In contrast to the order in Donnovan J., the court here did not give the social worker any discretion or authority to order visitation.^[4]

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

J.

We concur:

/s/ RAMIREZ

P.J.

/s/ GAUT

J.

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^[1] Counsel for the children filed a brief on July 24, 2007, requesting that we affirm the juvenile courts order.

^[2] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[3] Mother is not a party to this appeal.

^[4] On June 1, 2007, the department filed a request for judicial notice. The department requested we take judicial notice of the minute orders from the appearance review hearing held on April 23, 2007, showing that the court decided not to order conjoint counseling, after the social worker advised it of the situation at that time. On June 26, 2007, we reserved consideration of the request to take judicial notice. We may take judicial notice of any records of any court of this state. (Evid. Code, 352, subd. (d)(1).) However, we do not ordinarily take judicial notice of matters not previously presented to the trial court, because [w]e review the correctness of the trial courts ruling at the time it was made, however, and not by reference to evidence produced at a later date. (People v. Welch (1999) 20 Cal.4th 701, 739-740.) Thus, we deny the request.