|
(Cite
as: 185 Cal.App.4th 1130, 111 Cal.Rptr.3d
199) |
Court
of Appeal, Third District, California.
In
re KYLE E., a Person Coming Under the Juvenile Court Law.
Sacramento
County Department of Health and Human Services, Plaintiff and
Respondent,
v.
Michael
E., Defendant and Appellant.
No.
C061669.
June
22, 2010.
Certified
for Partial Publication.FN*
FN*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of parts I, II, III, and V of
the Discussion.
**200
Janet H. Saalfield, Sausalito, under appointment by the Court of Appeal, for
Defendant and Appellant.
Robert
A. Ryan, Jr., County Counsel, and Lilly C. Frawley, Deputy County Counsel, for
Plaintiff and Respondent.
BUTZ,
J.
*1131
Appellant, Michael E., presumed father of minor Kyle E., appeals from an order
of the juvenile court terminating reunification services. *1132
(Welf. & Inst.Code, ?? 366.21, subd. (f), 395.) FN1
Appellant contends: (1) the juvenile court abused its discretion and violated
appellant's due process rights when it denied him reunification services
pursuant to Robert
L.
FN2
and failed to abide by the requirements of section 361.5, subdivision (b)(14);
(2) there is insufficient evidence to support the juvenile court's finding that
the minor's ?injury or detrimental condition ... would ordinarily not be
sustained, except as the result of the unreasonable or neglectful acts or
omissions of the parents, [S.E.] and Michael [E.] ...?; (3) the juvenile court
failed to comply with the notice requirements of the Indian Child Welfare Act
(ICWA) (25 U.S.C. ? 1901 et seq.); (4) the juvenile court's visitation order
unlawfully delegated the responsibility of whether or not visitation would occur
at all to the Sacramento County Department of Health and Human Services (the
Department); and (5) there is insufficient evidence to support the juvenile
court's finding regarding appellant's whereabouts and/
FN1.
Undesignated statutory references are to the Welfare and Institutions
Code.
FN2.
Robert
L. v. Superior Court
(1996) 45 Cal.App.4th 619, 53 Cal.Rptr.2d 41 (Robert
L.).
The
Department concedes the lack of substantial evidence to support the court's
finding as to appellant regarding the cause of the minor's injury or detrimental
condition, and further concedes the court erred in finding that appellant's
whereabouts and/
We
will accept the Department's concessions and strike the findings at issue with
regard to appellant. We will reverse and remand for further proceedings the
court's order of visitation. In all other respects, we will affirm the juvenile
court's order.
FACTUAL
AND PROCEDURAL BACKGROUND
On
November 18, 2008, the minor, then 16 years old, was placed into protective
custody after appellant put him on a plane from San Diego to Sacramento. Airport
deputies took the minor to his mother's home. His mother, S.E., dropped him off
at a Sacramento youth center claiming he was abusive to her other children and,
due **201
to his emotional and behavioral problems, she was unable to care for
him.
On
November 20, 2008, the Department filed a juvenile dependency petition on behalf
of the minor alleging a substantial risk that the minor would suffer serious
physical harm or illness due to the failure or inability of the mother to
supervise or protect the child adequately. (? 300, subd. (b).) The petition
alleged that the minor's behaviors included running away, suicidal ideations,
and threatening to kill his sister and that mother failed or refused to provide
adequate care, supervision and protection. (? 300, *1133
subd. (b)(1) [hereafter the (b)(1) allegation].) The petition further alleged
that mother was allowing appellant to have unsupervised visitation with the
minor despite knowing the court had ordered supervised visitation due to ?his
physical abuse of the child.? (? 300, subd. (b)(2) [hereafter the (b)(2)
allegation].)
At
the jurisdictional hearing on February 3, 2009, appellant's counsel requested a
waiver of appellant's appearance at both the hearing then taking place and the
contested jurisdictional hearing to follow two days later. The court granted the
request.
At
the contested jurisdictional hearing on February 5, 2009, the court accepted an
amendment to the petition, which deleted the (b)(1) and (b)(2) allegations noted
above and replaced them with a section 300, subdivision (c) allegation
(hereafter section 300(c) allegation), which alleged that the minor's mother was
unable to provide for the care, supervision and protection of the minor in that
the mother ?does not have the necessary skills to parent [the minor] due to the
fact that [the minor] is suffering from serious emotional damage evidenced by
severe anxiety, depression, withdrawal, and/
Appellant
was absent from the contested jurisdictional hearing but represented by counsel.
When asked whether appellant was in agreement with the amended petition,
appellant's counsel replied as follows: ?I just spoke to the father. He is not
in agreement with the resolution or with the new language in the petition,
specifically, the language stating that [the minor's] behaviors including
[sic
] residing with the father in Southern California with whom there is a court
order for supervised visitation only. [?] He is [sic
] asked on his behalf that I obtain a continuance either for him to be present
to testify or for me to obtain a declaration which he wishes to have read into
the record. [?] He is also-he believes that information that is in the
jurisdictional[/
Mother's
counsel provided the court with a waiver of reunification services and confirmed
that mother was declining reunification services. The court *1134
found mother's waiver to be knowing, intelligent and voluntary and denied
services to her pursuant to section 361.5, subdivision (b)(14). Thereafter,
appellant's counsel requested as follows: ?Your Honor, I would be requesting
that the Court make a finding under Robert
L.,
that my client is a noncustodial parent who is not seeking
reunification**202
services at this time.? The court responded, ?I will order no services to the
father under the case of Robert
L.
He is a nonoffending father who's not requesting placement of [the minor] or
services.?
The
juvenile court dismissed the (b)(1) and the (b)(2) allegations for insufficient
evidence and sustained the section 300(c) allegations in the petition, as
modified, adjudged the minor a dependent child of the court (ibid.),
committed him to the care and custody of the Department for suitable
confidential placement, and ordered regular visitation for the mother with the
minor. Included in the court's findings was the following: ?An injury or
detrimental condition sustained by [the minor] is of a nature as would
ordinarily not be sustained, except as the result of the unreasonable or
neglectful acts or omissions of the parents, [S.E.] and Michael [E.], who has
[sic
] the care or custody of [the minor].? The court's order also included a finding
that the ?whereabouts and/
Appellant
filed a timely notice of appeal.
DISCUSSION
I.-III.
FN**
FN**
See footnote *, ante.
IV.
Visitation
[1]
Appellant contends that the court, in its dispositional order, improperly
delegated to the Department the responsibility to determine whether visitation
with the minor would occur at all. We agree.
1135
In fashioning a visitation order, the court may delegate the responsibility of
managing the details of visitation-including time, place, and manner-but not the
decision whether visitation will occur. (In
re Moriah T.
(1994) 23 Cal.App.4th 1367, 1374, 28 Cal.Rptr.2d 705 (Moriah
T.).)
In Moriah
T.,
this court upheld an order entered at an 18-month review hearing for the father
to visit ? ?regularly? ? with the children ? ?consistent with the[ir] well-being
... and at the discretion of [the social services agency] as to the time, place,
and manner.? ? (Id.
at p. 1371, 28 Cal.Rptr.2d 705.) Because the juvenile court's order mandated
regular visitation, the social services agency was not given absolute discretion
to decide whether visits would occur. (Ibid.)
We concluded it was not an improper delegation of authority to allow the social
services agency to determine the frequency and length of visits when the order
provided for regular visitation. (Id.
at pp. 1376-1377, 28 Cal.Rptr.2d 705; but see In
re M.R.
(2005) 132 Cal.App.4th 269, 274-275, 33 Cal.Rptr.3d 629; In
re Jennifer G.
(1990) 221 Cal.App.3d 752, 757, 270 Cal.Rptr. 326.)
The
visitation order in the present matter is problematic for two reasons. First,
unlike the order in Moriah
T.,
the order articulated by the court at the hearing provides appellant with
supervised visitation and nothing more. Second, the written order, unlike the
order in Moriah
T.,
provides for visitation ?as frequent as is consistent with the well-being of
[the minor],? with all other conditions, including determinations regarding
time, place and **203
manner, and frequency and length of visits, left to the discretion of the
Department.
At
the conclusion of the contested jurisdictional hearing, the court adopted the
Department's recommendations regarding visitation as to the mother. FN4
The court then stated that, ?[w]ith regard to the father's visits, those will be
supervised only at this point.?
FN4.
The court referenced page 24 of the December 16, 2008
jurisdiction/
The
court's minute order following the hearing states as follows with respect to
visitation: ?The father shall have supervised visitation with [the minor] as
frequent as is consistent with the well-being of [the minor]. [The Department]
shall determine the time, place and manner of visitation, including the
frequency of visits, length of visits, and by whom they are supervised.
*1136
[The Department] may consider [the minor's] desires in its administration of the
visits, but [the minor] shall not be given the option to consent to, or refuse,
future visits. Parent/
[3][4][5]
The oral pronouncement regarding appellant's visitation is inconsistent with the
visitation provision set forth in the written order. ?It may be said ... as a
general rule that when, as in this case, the record is in conflict it will be
harmonized if possible; but where this is not possible that part of the record
will prevail, which, because of its origin and nature or otherwise, is entitled
to the greater credence [citation]. Therefore whether the recitals in the
clerk's minutes should prevail as against contrary statements in the reporter's
transcript, must depend upon the circumstances of each particular case.?
(In
re Evans
(1945) 70 Cal.App.2d 213, 216, 160 P.2d 551.) Such error may be corrected at any
time. (People
v. Smith
(1983) 33 Cal.3d 596, 599-600, 189 Cal.Rptr. 862, 659 P.2d 1152.)
Here,
the oral pronouncement of the visitation order, which is vague, cannot be
reconciled with the court's written order, which calls for visitation but fails
to set a minimum number of visits or provide that appellant could visit the
minor ?regularly.? (Moriah
T., supra,
23 Cal.App.4th at p. 1371, 28 Cal.Rptr.2d 705.) Given the lack of necessary
detail in the oral pronouncement and the improper delegation of authority to the
Department regarding whether visitation would occur at all in the written order,
we must remand for further proceedings at which the juvenile court shall clarify
the terms and conditions applicable to appellant's visitation, including, but
not limited to, a minimum number of visits or that visitation is to occur
regularly.
V.
Court's Erroneous Finding re: Appellant's Whereabouts
FN***
FN***
See footnote *, ante.
DISPOSITION
The
court's finding that the minor's ?injury or detrimental condition ... would
**204
ordinarily not be sustained, except as the result of the unreasonable or
neglectful acts or omissions of? appellant is stricken, as is the court's
finding that ?[t]he whereabouts and/
*1137
We reverse the court's order of visitation as to appellant and remand for
further proceedings consistent with part IV of this opinion.
In
all other respects, the juvenile court's jurisdictional findings and
dispositional order are affirmed.
We
concur: SIMS, Acting P.J., and CANTIL-SAKAUYE, J.