In Re Katherine M.
PHELAN, J.
This juvenile dependency action commenced in January 1991 with the filing of a petition, under Welfare and Institutions Code
Appellant‘s primary contention on appeal is that, by ordering her to undergo involuntary psychotherapy for an indefinite period of time as a condition on her custody rights, the juvenile court exceeded its authority and violated her due process rights2 Appellant also contends that the termination order is not supported by substantial evidence, and that the juvenile court abused its discretion by dismissing dependency proceedings. Although we reject this latter contention, we agree that the open-ended psychotherapy order was improper. Accordingly, we will affirm the dismissal and custody orders as modified to delete the condition that appellant continue indefinitely in psychotherapy.
I. FACTUAL AND PROCEDURAL BACKGROUND
The juvenile court acquired jurisdiction in this case in January 1991, under a petition which alleged that “the parents have emotional problems requiring treatment as evidenced by extreme conflict in their marriage which has placed the minors at risk of severe emotional problems.” At the time the petition was filed, Katherine and Patrick were living with appellant. The court ordered the minors into emergency shelter and, later, into foster care. The reunification plan required both appellant and her ex-husband to participate in a program of individual psychotherapy. Psychological services were also provided for Katherine and Patrick.
Following a review hearing in September 1992, the juvenile court ordered Katherine and Patrick returned to the custody of their father under supervision by the department. The court further ordered both parents to continue in individual therapy and to work with the therapists for their children. At that
On April 20, 1993, the social worker assigned to this case, Lynn Jones, reported that there had been two significant changes in the family since the juvenile court assumed jurisdiction: The children‘s father had developed the ability to safely care for and nurture the children, and the conflict between appellant and her ex-husband had subsided. Thus, Ms. Jones recommended termination of dependency proceedings, saying that “with the parent‘s current level of functioning, visitation in place, and monitoring by therapists, [] there is no longer a need for [the department‘s] supervision.” Shortly after Ms. Jones‘s report was prepared and served on the parties, both appellant and her ex-husband filed motions regarding custody of the children. Appellant sought evenly-shared physical custody of the children under the department‘s supervision. Her ex-husband sought sole legal and physical custody of the children.
A combined hearing on the department‘s dismissal recommendation and the parents’ cross-motions regarding custody was held on July 19, 1993. The department called Ms. Jones, who testified to two recent incidents in which appellant‘s ex-husband slapped Patrick. Ms. Jones explained that those two incidents did not affect her recommendation of dismissal because Edward had reported his own misconduct to his and the children‘s therapists. The court admitted Ms. Jones‘s report into evidence.
On cross-examination, Ms. Jones testified that she had recently learned that the parents had arranged for increased visitation between appellant and the children. She also said that the department did not need to monitor the effect of the new custody arrangement because the children would continue to see their therapists. In addition, Ms. Jones suggested that the parties could petition the family court if problems should arise. Ms. Jones was also cross-examined about appellant‘s allegations that her ex-husband had physically and sexually abused the children. She testified that she had never seen any indication of abuse and that neither of the children‘s therapists had reported any abuse.
Edward‘s therapist, Larry Jacobs, testified that his client did not need the supervision of the court to safely and adequately care for the children. Jacobs acknowledged, however, that Edward had a history of being physically violent with appellant during their marriage, and that he was still working on controlling his anger in his interactions with the children.
Appellant‘s witnesses included: her own therapist, Rita Chacon; Katherine‘s therapist, Pamela Hawkins; and Patrick‘s therapist, Margaret Wilson. Hawkins testified that continued supervision was necessary because “things could escalate” between appellant and her ex-husband, but that a special master appointed by the family court could handle the supervision. Chacon testified that appellant would require continued therapy, and that continued court supervision was necessary because of the history of conflict in the family. Wilson testified that the family was “still in the early stages of healing” and, therefore, needed someone to monitor and mediate any conflicts. Wilson acknowledged, however, that a special master could perform that function.
Appellant testified about her increasing involvement with the children and her progress in therapy. She said that communication between her and her ex-husband was not good, but had improved to the point where they were openly communicating. She further stated that she would be willing to cooperate if the family court appointed a special master. Appellant conceded that, even during times of conflict, she and her ex-husband were able to make decisions about the children without the aid of Ms. Jones or the court. For example, she admitted that she did not contact Ms. Jones when she found out about one of the incidents in which her ex-husband slapped Patrick but, rather, discussed the matter with Edward directly.
At the conclusion of the July 1993 hearing, the court terminated its jurisdiction and dismissed the dependency proceedings. Citing
Upon relinquishing jurisdiction, the juvenile court ordered the case transferred back to the domestic relations department of the superior court where there was an existing file, No. 926-378, on the parties’ dissolution action. This timely appeal followed.
II. DISCUSSION
A. Imposing an Open-ended Psychotherapy Requirement Violated Appellant‘s Due Process Rights.
This appeal presents a novel issue of the juvenile court‘s authority to make “exit” orders upon termination of dependency jurisdiction, and constitutional limits on that authority. (1) Specifically, appellant contends that the juvenile court violated her due process rights by conditioning her custody rights on compliance with a court order that she continue indefinitely in individual psychotherapy, and by failing to consider the impact of its counseling order on her existing financial obligations. We agree with appellant and, accordingly, will reverse the juvenile court‘s counseling order.
We begin our analysis of this issue by noting that the juvenile court has exclusive jurisdiction to issue orders regarding the custody of a dependent child during the pendency of juvenile court proceedings. (
With respect to a “minor who is the subject of [dependency] proceedings,” the juvenile court is further authorized to enter reasonable orders requiring the child‘s parents to participate in a counseling program. (
The 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.
Likewise, neither
Of course, after terminating its dependency jurisdiction and determining the custody of the formerly dependent children, a superior court, which is to that point in session as a juvenile court, arguably can “switch hats” and enter a counseling order while acting “in its additional capacity as a family law court.” (In re Sarah M., supra, 233 Cal. App.3d at p. 1504) If so,
Unfortunately, that is not what happened in this case. The juvenile court‘s counseling order conformed to some, but not all, of the requirements of
In re Marriage of Matthews, supra, was a custody dispute arising in a dissolution action in which the mother challenged an order requiring her to undergo therapy for as long as a court-appointed psychiatrist deemed necessary. (101 Cal. App.3d at pp. 817-818.) The apparent purpose of the order was to help decrease the animosity between the parents and to enable the mother to deal in a more mature manner with the exercise of the father‘s visitation rights. (Ibid.) Despite the trial court‘s “praiseworthy motives,” the court of appeal reversed the open-ended counseling order, holding that it was beyond the authority of the trial court, and constituted an unlawful delegation of judicial power to the psychiatrist. (Ibid.) In dicta, the court suggested that the counseling order violated the mother‘s due process rights. (Ibid.)
More recently, in Camacho v. Camacho, supra, the court applied In re Marriage of Matthews to hold that a family court order requiring a father to submit to involuntary psychotherapy as a condition on his custody rights was a direct violation of due process, “as it constitutes a fundamental restriction of his liberty unaccompanied by any procedural safeguards.” (173 Cal. App.3d at pp. 221-222.) In its due process analysis, the court was obviously troubled by the absence of any standards and findings, such as those required by the Lanterman-Petris-Short Act (
In 1989, in response to the foregoing Court of Appeal decisions, the Legislature enacted
We also have no doubt that a juvenile court counseling order could be sustained in the face of a due process challenge if it incorporated the procedural safeguards contained in
B. The Juvenile Court Did Not Abuse Its Discretion by Dismissing the Dependency Proceedings.*
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III. CONCLUSION
For all the foregoing reasons, we vacate the portion of the juvenile court‘s August 5, 1993, order which conditions appellant‘s custody rights on her
Kline, P.J., and Smith, J., concurred.