In re J.R.

Filed 8/7/07 In re J.R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Peter E. Riddle, Judge. (Retired judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Reginald D. appeals an order of the juvenile court made at a six-month review hearing involving his dependent children J.R., E.D. and Moses D. (collectively the minors). Reginald contends the court abused its discretion by ordering that his visits with the minors remain supervised. He also challenges the validity of the court's visitation order as impermissibly vague. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2006 Reginald and Michelle D. took their one-month-old son Moses to the emergency room after Reginald noticed Moses's leg was swollen and bruised. An examination at Children's Hospital showed Moses had a fractured femur and bruising on his arm, consistent with non-accidental trauma. The parents reported they were Moses's only caregivers. They gave consistent accounts of the events leading to the discovery of Moses's injury, but neither parent had any explanation for how the injury occurred.

The San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under Welfare and Institutions Code section 300, subdivision (a)^[1]alleging Moses suffered serious physical harm inflicted non-accidentally, consisting of a fractured femur, which would not ordinarily occur except as a result of the unreasonable acts of his parents.^[2] Agency also filed petitions under section 300, subdivision (j) on behalf of Moses's siblings, four-year-old J.R. and 17-month-old E.D. The court detained the minors in out-of-home care and ordered supervised visits for the parents.

In the opinion of child abuse expert Cynthia Kuelbs, M.D., Moses's injury was due to inflicted trauma. Dr. Kuelbs noted there was no evidence of an underlying condition that would predispose Moses to fractures. She reported: "Femur fractures do not occur spontaneously and would not be caused during the course of normal child care. In order to cause this fracture, excessive force would have to have taken place." Dr. Kuelbs believed Moses was at risk of increasing injury or death if returned to an unchanged environment.

At a jurisdiction and disposition hearing, the parents submitted on Agency's reports. The court sustained the allegations of the petitions, declared the minors dependents, removed them from Reginald's custody and placed them with Michelle on the condition Reginald not live in the home. The court ordered Reginald's visits to be supervised by someone other than Michelle.

Reginald participated in a psychological evaluation by Julio-Cesar Armenta, Ph.D. Reginald's only explanation for Moses's injury was the possibility he was negligent when he changed Moses's diaper or took him out of his infant swing. Dr. Armenta reported Reginald did not appear to be particularly concerned about Moses's injury or the uncertainty of how it occurred, suggesting Reginald was not prepared to prevent future injuries from occurring. In Dr. Armenta's opinion, Reginald's ability to safely parent was contingent on developing "some inquisitiveness about the events that could produce" such an injury to his child. Consequently, Dr. Armenta recommended Reginald's visits with the minors remain supervised.

Reginald completed a parenting class and was attending individual therapy with Antonio Santos, Ph.D. Dr. Santos reported Reginald had made progress and there was no clinical indication he was a threat to his children. Nevertheless, Dr. Santos recommended Reginald continue in therapy.

At a six-month review hearing, the court considered evidence regarding whether Reginald's visits should remain supervised. Dr. Santos testified Reginald was in denial, as he claimed he did not know or did not remember what happened to cause Moses's injury. Dr. Santos was concerned that Reginald might not remember what happened and this was an issue they would continue to address in therapy. Because Reginald had no history of domestic violence or child abuse and presented with no severe psychopathology, Dr. Santos believed he did not pose a current threat to the minors. When asked whether he agreed with Dr. Armenta's recommendation for supervised visits, Dr. Santos explained: "I think because we don't know what happened, it would be good to have someone that would supervise him and see how he deals with the child. . . . I don't feel he would purposely damage his child."

Social worker Kim Hinck testified she recommended visits remain supervised based on her meetings with the parents and her review of the case history, the medical records, Reginald's psychological evaluation and Dr. Santos's progress report. In particular, Hinck relied on Dr. Armenta's conclusion that Reginald lacked concern for the circumstances that led to Moses's injury, Reginald's limited resources to prevent abuse from reoccurring and Reginald's denial and lack of awareness of what actually happened. Before Hinck could recommend unsupervised visits, Reginald would need more time in therapy to address the circumstances of how Moses was injured. She would also like Reginald to understand that Moses's bone fracture was sustained by the use of great force, as concluded by the medical experts, and not in the course of normal child care.

Michelle testified Reginald's visits were supervised by the maternal aunt and uncle. Michelle was present during some visits. The minors were happy to see Reginald. She agreed it would be difficult for her to supervise Reginald's visits with all three children. Michelle believed it was safe for Reginald to have unsupervised visits with the two older children, but not with Moses.

After considering the evidence and hearing argument of counsel, the court continued the minors as dependents, placed them with Michelle, and declined to order unsupervised visits for Reginald. However, the court gave the social worker discretion to allow unsupervised visits if, in the opinion of Reginald's therapist and other professionals, Reginald made sufficient progress in therapy. The court also gave the social worker discretion to allow Michelle to supervise visits between Reginald and Moses.^[3]

DISCUSSION

I

The Court Properly Declined to Order Unsupervised Visits

Reginald contends the court abused its discretion by finding unsupervised visits would be detrimental to the minors. He further contends the court's order conditioning the possibility of unsupervised visits on Reginald's admission he intentionally harmed Moses was unreasonable and contrary to the evidence.

A

Standard of Review

The juvenile court defines a parent's visitation rights by balancing the parent's interests in visitation with the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may impose restrictions on parental visitation, consistent with the child's best interests, based on the particular circumstances of the case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009; In re Clara B. (1993) 20 Cal.App.4th 988, 999.) The state's interest in assuring the best interests of the child justifies any limited intrusion on a parent's right to visitation. (In re Melissa H. (1974) 38 Cal.App.3d 173, 175.)

The court has broad discretion in making visitation orders, which we review for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352.) In this regard, the juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)

B

The Order for Supervised Visits Was Not an Abuse of Discretion

The restrictions on Reginald's visitation were reasonable and within the court's broad discretion. In determining there was some risk to the minors if visits were unsupervised, the court was entitled to consider Reginald's inability or unwillingness to acknowledge Moses's injury was inflicted in a manner other than in the course of normal child care. The court did not deny Reginald unsupervised visits because he failed to admit he intentionally harmed Moses, but because the evidence showed excessive force was used to cause Moses's fractured femur and the court made a true finding that Reginald acted unreasonably in causing that injury.^[4]Reginald had no recollection of hurting Moses and no explanation for his injury other than surmising the fracture occurred when Reginald took Moses out of his swing or was changing his diaper. Reginald's lack of concern or curiosity about the circumstances that led to Moses's injury

limited his ability to avoid similar conduct in the future. Contrary to Reginald's argument, the court did not use his "denial" as evidence of his "guilt," but rather as an indication he needed further services to address his role in Moses's injury in order to

assure the minors' safety.^[5] Based on evidence that Reginald had little or no insight into his own behavior that caused serious physical harm to a one-month-old child, the court could reasonably find supervised visits were consistent with the minors' best interests.

Reginald asserts Dr. Santos provided a well-founded explanation for his opinion that unsupervised visits would not be detrimental to the minors. However, Dr. Armenta and social worker Hinck believed Reginald had not overcome the problems that placed the minors at risk, requiring visits to remain supervised. The court was entitled to find this evidence credible and give greater weight to these experts' opinions and testimony than to the opinion and testimony of Dr. Santos.^[6] (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)

II

The Court's Visitation Order Was Not Impermissibly Vague

Reginald contends the language of the court's order giving the social worker discretion to authorize unsupervised visits once she was satisfied Reginald had made "sufficient progress in his therapy after receiving input from the therapist and other appropriate professionals" was so vague as to be invalid. Reginald asserts it is unclear what the court meant by "sufficient progress in therapy" or to whom "other appropriate professionals" referred. He further contends the visitation order impermissibly delegates authority to the social worker.

A

Reginald Has Forfeited the Issue by Not Raising it in the Trial Court

As a general rule, a parent's failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) Application of the forfeiture rule, although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (In re S.B., supra, 32 Cal.4th at p. 1293; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) " ' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them,

and the result would be that few judgments would stand the test of an appeal." [Citation.]' " (In re Christina L. (1992) 3 Cal.App.4th 404, 416; see also People v. Barnum (2003) 29 Cal.4th 1210, 1223-1224 [even constitutional rights may be forfeited].)

Here, when the court gave the social worker discretion to authorize unsupervised visits if certain conditions were met, Reginald did not object that it impermissibly delegated authority to the social worker, or that the order was vague and required clarification. By his silence and acquiescence, Reginald has forfeited his right to claim the visitation order must be stricken because it is impermissibly vague. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)^[7]

B

The Visitation Order Does Not Impermissibly Delegate Authority to Social Worker

Reginald contends the court's order impermissibly delegates authority to the social worker. However, by not timely objecting in the juvenile court, Reginald has forfeited the ability to claim error on appeal. (In re S.B., supra, 32 Cal.4th at p. 1293.)

Even had Reginald objected, the court did not unlawfully delegate its judicial authority. The juvenile court may delegate the ministerial tasks of overseeing reunification services, including visitation, to the person or entity best able to perform them. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [ministerial task of overseeing visitation as defined by juvenile court is best left to child protective services agency]; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 [juvenile court may delegate to social worker the responsibility to manage details of visitation such as time, place and manner].) Only when the court delegates absolute discretion to determine whether the parent is entitled to visitation in the first instance does its order violate the statutory scheme and separation of powers doctrine. (In re Chantal S. (1996) 13 Cal.4th 196, 213; In re Jennifer G., supra, 221 Cal.App.3d at p. 758; In re Moriah T., supra, 23 Cal.App.4th at p. 1374.)

Here, the court's visitation order does not vest the social worker or therapist with "absolute" discretion to determine whether visitation should occur. Rather, it gives the social worker discretion, with the concurrence of minors' counsel, to allow unsupervised visits if she determines Reginald has made satisfactory progress in therapy. (In re Chantal S., supra, 13 Cal.4th at p. 213 [court properly gave therapist some discretion to determine when "satisfactory progress" has been made and the ordered visitation could begin].) Because the social worker acts as a cooperative arm of the juvenile court, such limited delegation is proper. (In re Moriah T., supra, 23 Cal.App.4th at pp. 1374-1376.) The court's conditional visitation order does not violate Reginald's rights. (In re Chantal S., supra, 13 Cal.4th at p. 214.)

C

The Visitation Order Does Not Prejudice Reginald's Reunification Efforts

Reginald contends that to the extent his visitation is unreasonably limited, his ability to reunify with the minors is negatively impacted. He claims continued supervised visits will cause him to have difficulty forming a meaningful relationship with the minors. However, the absence of a beneficial parent-child relationship results from little or no visitation over a period of time. (See In re Alvin R. (2003) 108 Cal.App.4th 962, 974; In re Monica C. (1995) 31 Cal.App.4th 296, 307.) Here, visitation is as frequent as possible under the circumstances. Reginald and the minors are together two or three days a week for one or two hours per visit, with Reginald's brother and sister-in-law providing the required supervision. The supervised nature of the visits does not foreclose the possibility Reginald is maintaining a bond with the minors and will eventually reunify with them. The limitation imposed is in the minors' best interests because it allows Reginald to exercise his right to visitation and to develop and strengthen the parent-child relationship in a setting that protects the minors. Viewing the evidence favorably to the court's order, we discern no abuse of discretion and conclude the visitation order advanced the minors' best interests.

DISPOSITION

The order is affirmed.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] The court later amended the petitions by substituting the word "father" for the word "parents."

^[3] The social worker's discretion to allow unsupervised visits or have Michelle supervise visits with Moses was to be with the concurrence of his counsel.

^[4] Reginald argues he should not be put in the untenable position of admitting he intentionally did something "that he very well may not have done" in order to receive unsupervised visits. However, Reginald is precluded from arguing he did not inflict physical harm on Moses non-accidentally. The truth of the allegations under section 300, subdivisions (a) and (j) are not before us. Reginald did not challenge the sufficiency of the evidence to support the court's jurisdictional findings, which are now final and res judicata. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 209; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705.)

^[5] Reginald's reliance on Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 is misplaced. That case involved the problem of the "confession dilemma" where the juvenile court mistakenly believed true findings had previously been made as to sexual abuse allegations. The parents continued to deny any molestation ever occurred and there was new evidence to support their denial. (Id. at p. 1752.) The court held the parents were entitled to a new 18-month review hearing on the molestation allegations, noting the need for clear, reliable findings where sexual abuse is alleged. (Id. at p. 1759.) Here, in contrast, a finding that Reginald's unreasonable acts caused Moses's injury was conclusively established.

^[6] In making its findings and orders, the court expressly found social worker Hinck was a more persuasive witness than Dr. Santos. The court had "a great deal of confidence in her testimony," which was balanced, thoughtful and fair, and was based on the evidence. We cannot substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)

^[7] In any event, if Reginald believes he has made satisfactory progress in therapy but is not allowed unsupervised visits, he may return to the juvenile court for guidance or clarification as to what is expected of him.