Lead Opinion
Opinion
May a juvenile court, when terminating its dependency jurisdiction, issue an order conditioning visitation on a parent’s participation in a counseling program? If so, is the juvenile court bound by the requirements of Family Code section 3190, which governs counseling orders issued by a family court? The Court of Appeal answered these questions “yes” and “no” respectively, thereby creating a conflict with In re Katherine M. (1994)
I. The Distinction Between Juvenile and Family Courts
At the outset it is helpful to clarify the distinction between a “juvenile court,” and its orders, and a “family court,” and its orders. A “juvenile court” is a superior court exercising limited jurisdiction arising under juvenile law. (In re Lisa R. (1975)
The two courts have separate purposes. The family court is established to provide parents a forum in which to resolve, inter alia, private issues relating to the custody of and visitation with children. In that setting, parents are presumed to be fit and capable of raising their children. (Fam. Code, § 3061.) The juvenile court, by contrast, provides the state a forum to “restrict parental behavior regarding children, . . . and ... to remove children from the custody of their parents or guardians.” (Edwards, supra, 27 Santa Clara L.Rev. at p. 206, fns. omitted.) When, as in this matter, a juvenile court hears a dependency case under section 300 of the Welfare and Institutions Code, the court deals with children who have been seriously abused, abandoned, or neglected. The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child’s circumstances when making decisions regarding the child. (In re Roger S. (1992)
II. Facts and Procedure
Pursuant to a family court order that is not part of the record herein, Lori K. (mother) was awarded custody of her daughter, Chantal S. Defendant Randall S. (father) was granted visitation. Thereafter, Chantal was adjudged a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (c) (all statutory references are to this code unless otherwise indicated), based on findings that, inter alia, father was violent and mother was unable to protect Chantal, leaving the child at substantial risk of suffering emotional damage. Shortly after the dependency finding, father was sentenced to three years in prison on charges not directly related to the allegations underlying this matter. The juvenile court ordered counseling for Chantal.
At a subsequent review hearing, the social worker assigned to the case recommended the dependency be terminated, and mother be granted sole
During a contested hearing on the termination recommendation, the juvenile court repeatedly asserted its intention to “make appropriate family law orders” that would place conditions on father’s right to visitation. The court granted legal and physical custody of Chantal to mother, and announced it would terminate dependency after counsel for Chantal prepared a “family law order” containing specific conditions of visitation.
The order that was subsequently submitted to, and signed by, the juvenile court reiterated that physical and legal custody was granted to mother, mandated that mother keep Chantal in counseling as recommended by Chantal’s therapist, and provided: “Dependency is ordered terminated upon filing of [this] formal order in the appropriate family law court.”
The order placed conditions on father’s visitation rights as follows: “Visitation ... for father ... to be facilitated by [Chantal’s] therapist, Diane Childs. [% Before visitation with father and his daughter can occur, father must be: [*]D 1. In psychotherapy with a therapist qualified to work with issues such as [father]’s. [f] 2. Father must attend therapy regularly and make satisfactory progress for a time before any visits as determined by his therapist. [D 3. At the time that visits are scheduled to begin, [father] 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. [f] 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’] office; Familiar surroundings for Chantal.”
The order was filed under a superior court family law case number, and the dependency proceeding was dismissed. Father appealed from the custody order, claiming it improperly required him to submit to counseling as a condition of visitation, and unlawfully delegated judicial authority to therapists. The Court of Appeal rejected both assertions, and affirmed the order.
III. Analysis
A. Authority of the Juvenile Court, on Termination of Dependency Jurisdiction, to Require Counseling as a Condition of Custody or Visitation
Section 362.4 states: “When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the
Section 362, subdivision (c) (section 362(c)), provides: “The juvenile court may direct any and all reasonable orders to the parents ... of the minor who is the subject of any proceedings under this chapter .... Such an order may include a direction to participate in a counseling . . . program .... The program in which a parent... is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the minor is a person described by Section 300.”
The court in Katherine M., supra,
Nor do we find section 362(c), which generally authorizes juvenile courts to issue counseling orders, inapplicable when a juvenile court terminates dependency jurisdiction. Katherine M., supra,
We do not view section 362(c)’s proviso as inconsistent with an order, issued on termination of dependency jurisdiction, requiring counseling as a condition of visitation. The juvenile court’s determination, that continuation of dependency was at that time unnecessary for Chantal’s protection, was in turn premised on the existence of the court’s custody and visitation order. The juvenile court did not find that Chantal would not need protection if father had unconditional visitation rights or joint legal or physical custody. To the contrary, the juvenile court’s order reveals clear continuing concerns about father’s effect, even in supervised visits, on Chantal’s well being. (Cf. Jennifer R., supra,
Under father’s reasoning, in order to impose counseling conditions on his visitation rights, the juvenile court would be required to force Chantal and her mother to remain indefinitely in the juvenile court dependency system. As the present case illustrates, however, there are situations in which a juvenile court may reasonably determine that continued supervision of the minor as a dependent child is not necessary for the child’s protection, and at the same time conclude that conditions on visitation are necessary to minimize, if not eliminate, the danger that visits might subject the minor to the same risk of physical abuse or emotional harm that previously led to the dependency adjudication. In such a situation, sections 362.4 and 362(c) authorize the juvenile court to issue an appropriate protective order conditioning custody or visitation on a parent’s participation in a counseling program. To the extent Katherine M., supra,
This brings us to the question of the propriety of the order issued here. Father asserts the order is improper because it leaves the counseling term
B. Application of Family Code Section 3190 to Juvenile Court Orders
Family Code section 3190, subdivision (a), permits a family court to “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: ['JO (1) The dispute between the parents or between a parent and child poses a substantial danger to the best interest of the child. [00 (2) The counseling is in the best interest of the child. . . .” Subdivision (c) of section 3190 requires that “[t]he court, in its finding, shall set forth reasons why it has found both of the following: [00 (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. [00 (2) The financial burden created by the court order for counseling does not otherwise jeopardize a party’s other financial obligations.” Finally, subdivision (d) of section 3190 states the family court shall not order the parties to return to court on the completion of counseling, but that either party may move for an order requiring additional counseling. As father observes, the juvenile court’s order in this case was open ended, and the court made no findings, express or implied, in conformity with Family Code section 3190.
The Court of Appeal concluded Family Code section 3190 does not apply to dependency cases, and that the Legislature intended to authorize juvenile courts discretion to fashion counseling orders on termination of dependency without complying with the requirements of that section. As explained below, we agree.
In support of its conclusion, the Court of Appeal relied primarily on Jennifer R„ supra,
The Jennifer R. court concluded that former Civil Code section 4600.5, subdivision (a), did not apply to custody determinations made by a juvenile
We agree with Jennifer R., supra,
It does not follow, however, that no family law statutory provision can ever apply in the dependency context. Indeed, the Legislature has expressly provided that specific parts of the Family Code apply to orders issued by the juvenile court. (See, e.g., §§304, 362.4, par. 1, incorporating Fam. Code, § 6218 [relating to protective orders].) But as amicus curiae on behalf of plaintiff Riverside County Department of Public Social Services observes, this shows that the Legislature knows how to make the Family Code applicable to the juvenile court when it intends to do so, and suggests that the Legislature’s omission to do so with respect to Family Code section 3190
This inference is strengthened when we consider the history of Family Code section 3190. Its predecessor, former Civil Code section 4608.1, subdivision (a), applied to “any proceeding under this part where custody of, or visitation with, a minor child is at issue . . . .” (Italics added.) When Family Code section 3190 was enacted (Stats. 1992, ch. 162, § 10, div. 8, pt. 2, ch. 12), the italicized phrase was omitted. The Law Revision Commission’s Report observes: “[T]he reference to proceedings ‘under this part,’ meaning the former Family Law Act (former Part 5 (commencing with former Section 4000) of Division 4 of the Civil Code), has been omitted as unnecessary. See Section 3021 (application of part) & Comment. . . .” (23 Cal. Law Revision Com. Rep. (Nov. 1993) p. 347.) Family Code section 3021, in turn, specifically lists the proceedings in which the part of the Family Code in which section 3190 is contained applies (e.g., dissolution of marriage, nullity of marriage, legal separation, etc.), but, significantly, fails to include juvenile court proceedings of any kind. This suggests the Legislature intended that Family Code section 3190, like its predecessor, apply to proceedings in the family court, but not in the juvenile court. (Accord, Katherine M., supra, 27 Cal.App.4th at pp. 97-98.)
Indeed, the Legislature’s intention is made even clearer when we examine the provisions of Family Code section 3190. As noted ante, at page 205, that section requires the court to make findings concerning, inter alia, “[t]he dispute between the parents or between a parent and child.” In this respect, Family Code section 3190 does not appear to be focused on the typical juvenile dependency scenario, which does not present a parent-child “dispute” but rather, as noted above, a situation in which the parent has abused or substantially neglected a child. This further suggests the Legislature did not intend that Family Code section 3190 apply in juvenile court proceedings.
In any event, we would be especially reluctant to infer legislative intent to apply a part of the Family Code to juvenile court proceedings if the result would be inconsistent with the purpose of juvenile court law. We conclude, however, that application of Family Code section 3190 to juvenile courts would produce results inconsistent with the purpose of juvenile court law.
As explained above and emphasized in Jennifer R., supra,
Consider, for example, the case of a pedophile father. A juvenile court might conclude that dependency jurisdiction could be terminated (on the ground, as here, that the mother had progressed to the point of being able to care for and protect the child on her own), and that visitation with the father should not be denied out of hand (see, e.g., In re Elizabeth M. (1991)
Accordingly, we conclude that because the Legislature has not expressly made Family Code section 3190 applicable to juvenile court orders terminating juvenile court dependency jurisdiction, and because the provisions of that section do not appear to have been designed with the juvenile court in mind, and because application of that section would produce results inconsistent with the purpose of juvenile court law, the Legislature must not have intended that Family Code section 3190 apply to juvenile court orders terminating juvenile court dependency jurisdiction.
Father’s arguments to the contrary are unpersuasive. First, he observes that under section 362.4, the juvenile court order conditioning his visitation has been filed in the family court, which may eventually place the family court in a position of enforcing a visitation and counseling order that the family court could not itself have legally made under Family Code section 3190. This may be so, but it is of no consequence. Courts are often placed in
Next^ father observes that the Legislature enacted the predecessor to Family Code section 3190 in 1989, in response to two Court of Appeal opinions concluding that open-ended counseling orders issued by family courts in custody and visitation disputes violated parents’ due process rights. (In re Marriage of Matthews (1980)
Insofar as father suggests the history of Family Code section 3190 demonstrates that the Legislature could not have intended to allow juvenile courts to order open-ended counseling as a condition of visitation or custody, we disagree. The Legislature might reasonably have concluded that, assuming the protections afforded by Family Code section 3190 are needed to satisfy due process concerns in the context of litigation in the family court, the distinctive features of dependency jurisdiction in the juvenile court render unnecessary the additional safeguards of Family Code section 3190 in the context of juvenile court orders terminating dependency jurisdiction.
First, unlike a parent who appears initially before the family court, when a parent such as father reaches the family court by way of the juvenile court and section 362.4, he brings with him considerable baggage, i.e., a recent court finding that he has inflicted serious physical or emotional harm on his child, or that he poses a substantial risk of serious future physical or emotional injury to his child. (§ 300, subds. (b) & (c).) In many cases, the parent’s recent history also includes a finding by clear and convincing evidence that there is “substantial danger to the physical health of the
Given these distinguishing features of juvenile court and family court litigation, the Legislature could reasonably have concluded that application of Family Code section 3190 to orders issued on termination of juvenile court dependency jurisdiction was not required in order to satisfy the procedural due process rights of parents such as father.
Contrary to father’s suggestions, the Legislature could also reasonably have concluded that application of Family Code section 3190 to juvenile court dependency termination orders is unnecessary to satisfy whatever substantive due process rights may be implicated. Amicus curiae on behalf of plaintiff Riverside County Department of Public Social Services asserts that a parent’s substantive due process rights are met when, “before conditioning visitation within a juvenile court custody order on a parent’s participation in therapy, ... the juvenile court . . . find[s] that such therapy is
We conclude that a juvenile court order terminating dependency and requiring counseling as a condition of visitation is not governed by Family Code section 3190. If the Legislature disagrees with our assessment, we assume it will act to clarify its intent.
Having determined that, as a matter of statutory construction, Family Code section 3190 does not apply to the juvenile court’s custody order, we must address father’s contention that the section must apply as a matter of due process. Father’s argument consists primarily of citation to Matthews, supra,
Father’s attempt to invoke Matthews, supra,
As our discussion demonstrates, these decisions invalidated open-ended custody orders because of the absence of adequate procedural protections. As father acknowledges, however, the dependency scheme includes “carefully crafted due process protections . . . that insure that parental rights are protected along with the physical and mental health of children.” (See Cynthia D., supra,
Given our conclusion that Matthews, supra,
Finally, we reject father’s argument that our decision leaves him “with none of the protections afforded by the Family Code and also without the procedural protections created and provided by the dependency court.”
C. Delegation of Judicial Authority
As noted above, the order specified that visitation was to be “facilitated” by Chantal’s therapist, and that visitation was to begin when father’s chosen therapist determined father had made “satisfactory progress for a time.” Father asserts these aspects of the order constitute an improper delegation of judicial authority to the two therapists.
The Court of Appeal below found the order proper under In re Moriah T. (1994)
Contrary to father’s argument, the order does not vest therapists with “absolute” discretion to determine whether visitation should occur. The order gives Chantal’s therapist no discretion whatsoever. The directive that Chantal’s therapist “facilitate” visitation appears designed merely to mandate that Chantal’s therapist cooperate with the court’s order that visitation occur once certain conditions are met.
Father correctly observes that the order vests some discretion in a therapist of his choice, to determine when “satisfactory progress” has been made and the ordered visitation may begin. The juvenile court apparently concluded that to protect Chantal, visitation should not begin until father makes sufficient progress in his own therapy. A juvenile court faced with this situation has two options. First, if circumstances warrant, it could deny
Even assuming arguendo that the order delegated too much judicial discretion, father is not prejudiced thereby. As noted above, father does not contest the position that on this record the juvenile court would have been within its discretion if it simply denied him any visitation. The fact that the juvenile court rejected that course, and instead issued the restrictive order challenged now, amounts to a windfall to father, not a violation of his rights.
If any party stands to be prejudiced by the order, it is not father, but instead mother and/or Chantal—neither of whom contests the order. Even as to those parties, however, it is not apparent that the order here would be improper, because it contemplates that all persons subject thereto would remain under the control of the family court and that any party who wished to contest the conduct of a therapist (or the continued propriety of the order based on changed circumstances) would be able to raise that issue in the family court. Accordingly, if mother or Chantal were dissatisfied with the performance or recommendations of father’s therapist, both or either of them would be permitted to raise those claims in the family court, and a family court judge would make the final decision as to whether visitation should begin.
For these reasons, we reject father’s “unlawful delegation” challenge to the order.
IV. Conclusion
Sections 362.4 and 362(c) authorize a juvenile court, when terminating its dependency jurisdiction, to issue an order conditioning custody or visitation
Kennard, J., Baxter, J., George, J., Werdegar, J., and Chin, J., concurred.
Notes
Moreover, he expressly does not contend “that the dependency court had to comply with the procedural provisions of the Family Code when it made its custody and visitation order.” “When such an order is made,” he asserts, “it is made in the dependency court, and made pursuant to the rules and procedures of that court.” Father further concedes that Family Code section 3190 “has no place in juvenile court during the course of a juvenile proceeding . . . .” (Original italics.)
In rejecting father’s claim, we express no opinion regarding the correctness of Matthews and Camacho. We simply find that, contrary to father’s assertion, they do not compel invalidation of the visitation order before us.
Riverside County Department of Public Social Services observed in its brief on the merits that based on the evidence, “the court arguably could have suspended all contact between father and minor.” Likewise, amicus curiae on its behalf observed that, in practical effect, the court here denied father any visitation at the time of the order, subject to visitation being initiated if and when father progressed in his therapy sufficiently to make closely monitored visitation safe for Chantal. Amicus curiae further asserted that “there is substantial evidence to support the court’s denial of visitation under either a best interest or detriment standard [(see ante, at p. 212)], and that the trial court’s order in this regard was not an abuse of discretion.” Father failed to contest either this conclusion, or amicus curiae’s characterization, in his reply or answer briefs, or at oral argument.
Concurrence in Part
I generally concur in the judgment. In most respects, the Court of Appeal did not commit error in affirming the juvenile court’s order terminating its dependency jurisdiction over the minor, Chantal S., with an order allowing visitation by her father, Randall S., on conditions including commencement of psychotherapy and satisfactory progress therein.
I dissent, however, as to a single matter.
The Court of Appeal committed reversible error in affirming the juvenile court’s visitation order insofar as it effectively, and unlawfully, delegates judicial authority to individuals outside the government.
A glance at the visitation order, which is set out in the margin,
That the juvenile court “would have been within its discretion to simply deny [Randall] any visitation” at all (maj. opn., ante, at p. 214) does not
Moreover, that the visitation order “contemplates that all persons subject thereto would remain under the control of the family court and that any party who wished to contest the conduct of a therapist (or the continued propriety of the order based on changed circumstances) would be able to raise that issue in the family court” (maj. opn., ante, at p. 214) does not mean that it does not effect an unlawful delegation of judicial authority to individuals outside the government. It may not make a delegation that is irrevocable. But it does make one that is unlawful.
“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 [sic] surroundings for Chantal.”