In re I.P. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. J518574
- Trial judge
- Kenneth J. Medel
- Outcome
- affirmed — Affirmed.
- Area
- dependency
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, O'Rourke
Analysis
The trial court terminated dependency jurisdiction and ordered the father to bear the entire cost of supervised visitation at a family visitation center. The Court of Appeal affirmed, holding the trial court had jurisdiction to impose this condition and did not abuse its discretion.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order requiring father to bear the entire cost of supervised visitation at the Family Visitation Center.“The court expressly determined that its order was "not a matter of punishment but . . . a matter of fairness" and the record supports that determination.” | abuse of discretion | correct | agree with court The appellate court correctly applied the abuse of discretion standard to the visitation condition. It relied on In re Chantal S. to establish that the juvenile court has the authority to impose collateral orders reasonably related to visitation, including financial responsibilities, even after the termination of dependency jurisdiction. The court found the order reasonable based on the father's history of violating restraining orders and failing to achieve unsupervised visitation, distinguishing it from a punitive measure. |
Jurisdiction to order father to pay for visitation costs.“Mohammad impliedly conceded the court had jurisdiction to decide who should pay. Mohammad has forfeited his right to assert on appeal that the court lacked jurisdiction.” | unclear | correct | agree with court The appellate court determined that the father forfeited his jurisdictional argument by not contesting the court's power to decide who pays in the trial court, instead arguing only about the allocation of costs. This is a standard procedural forfeiture doctrine applied correctly to the record presented. |
Authorities
- relied: In re Chantal S. (1996) 13 Cal.4th 196 — The juvenile court may place reasonable conditions on visitation, including financial responsibility for visits, and implicitly authorizes collateral orders reasonably related to visitation orders.
- relied: In re Stephanie M. (1994) 7 Cal.4th 295 — Visitation orders are reviewed for abuse of discretion.
- relied: In re Alexandria M. (2007) 156 Cal.App.4th 1088 — Visitation orders are reviewed for abuse of discretion.
- relied: In re Valerie A. (2007) 152 Cal.App.4th 987 — Arguments not raised in the trial court are forfeited on appeal.
- relied: In re A.S. (2009) 180 Cal.App.4th 351 — Arguments not raised in the trial court are forfeited on appeal.
- relied: In re T.H. (2010) 190 Cal.App.4th 1119 — Distinguished because in that case the court ordered visitation to be determined by the parents, whereas here the court set specific terms and costs.
- relied: In re Elizabeth M. (2008) 158 Cal.App.4th 1551 — There is a presumption that the family court knows the law and properly applies it.
The appellate opinion: sound — The opinion is sound because it correctly identifies the standard of review and relies on binding Supreme Court authority (In re Chantal S.) to support the trial court's power to impose financial conditions on visitation. It effectively addresses the appellant's arguments by distinguishing them as speculative or forfeited.
How this analysis was made · dispute it
unusual dispositionAt the hearing terminating dependency jurisdiction over I.P., the juvenile court awarded custody to the mother, granted the father supervised visitation three days a week, and ordered the father to bear the entire cost of supervision at the Family Visitation Center if a privately agreed supervisor was unavailable. The Court of Appeal affirmed, holding the father forfeited his jurisdictional challenge, that section 362.4 implicitly authorizes collateral cost orders reasonably related to visitation under In re Chantal S., and that the order was a fair, non-punitive exercise of discretion rather than an improper delegation.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Juvenile court had jurisdiction under Welfare and Institutions Code section 362.4 to order the father to bear the cost of supervised visitation as part of the exit order; father forfeited the contrary argument by only contesting allocation of cost below“Mohammad has forfeited his right to assert on appeal that the court lacked jurisdiction.” | unclear | correct | agree with court The court rested on forfeiture but also reached the merits, relying on Chantal S.'s holding that section 362.4 implicitly authorizes collateral orders reasonably related to visitation, including making a parent financially responsible for visits. Treating an excess-of-jurisdiction claim as forfeitable is consistent with California law, and the alternative merits holding is squarely supported by the Supreme Court's reasoning in Chantal S. The court did not articulate a standard of review for the statutory-authority question, but the result does not depend on it. |
Section 362.4 implicitly authorizes the court to allocate the cost of supervised visitation even though the statute does not expressly mention cost; section 900 et seq. does not limit that power“The lack of an express mention of cost in section 362.4 does not deprive the court of the power to address that issue where, as here, it is essential to setting up a complete, workable system of visitation.” | de novo | correct | agree with court The court quoted Chantal S. for the proposition that the power to make visitation orders carries with it the power to make reasonably related collateral orders, and Chantal S. itself approved an order making the father financially responsible for visits. The dismissal of section 900 et seq. as concerning government support of dependent children is accurate and the father's reliance on those provisions was inapposite. |
Ordering the father to pay the entire cost of supervision at the visitation center was not an abuse of discretion and was not a punitive measure contrary to the child's best interests“The court expressly determined that its order was "not a matter of punishment but . . . a matter of fairness" and the record supports that determination.” | abuse of discretion | correct | agree with court Under Stephanie M. visitation orders are reviewed deferentially, and the record described—mother reunified and bearing the cost of care, father's restraining-order violation, DUI, incarceration and failure to progress to unsupervised visits—supplies a rational basis for allocating supervision costs to the father. The court also authorized any mutually agreed supervisor and a court-approved family friend, so the cost order was a fallback rather than a bar to visitation. No indication of harm to the child's interests appears in the opinion. |
The cost order did not improperly delegate to the mother the power to determine whether visitation would occur“Mohammad's premises are pure speculation.” | abuse of discretion | correct | agree with court The court distinguished In re T.H., where visitation was left 'to be determined by the parents,' from this order, which fixed specific days and hours and named an agreed supervisor with the visitation center as backup. The father's delegation theory depended on stacked assumptions about the friend's unavailability, the mother's refusal of alternatives, and his own inability to pay, none of which appear in the record as recited. The distinction of T.H. is sound on its face. |
Father's claimed prejudice in seeking modification in family court (no appointed counsel, burden of proof, deference to dependency court) did not warrant reversal“At best, this contention is speculative. We presume the family court knows the law and properly applies it.” | unclear | correct | agree with court The asserted future prejudice is inherent in every exit order under section 362.4 and does not bear on whether this particular order was within the court's power or discretion. Invoking the Evidence Code section 664 presumption of regularity, as applied in In re Elizabeth M., is an appropriate response to speculation about how another court will proceed. |
Authorities
- relied: In re Chantal S. (1996) 13 Cal.4th 196 — Section 362.4's authorization to make visitation orders upon terminating dependency jurisdiction implicitly authorizes collateral orders reasonably related to visitation, including conditioning visitation on therapy and making the father financially responsible for visits.
- relied: In re Stephanie M. (1994) 7 Cal.4th 295 — Juvenile court orders concerning a child's custody and visitation are reviewed for abuse of discretion.
- relied: In re Alexandria M. (2007) 156 Cal.App.4th 1088 — Visitation orders are reviewed for abuse of discretion.
- relied: In re Valerie A. (2007) 152 Cal.App.4th 987 — A party who fails to raise an issue in the juvenile court forfeits the right to raise it on appeal.
- relied: In re A.S. (2009) 180 Cal.App.4th 351 — Forfeiture applies to arguments not presented to the juvenile court.
- relied: In re T.H. (2010) 190 Cal.App.4th 1119 — An exit order leaving supervised visitation 'to be determined by the parents' improperly delegates the court's authority to decide whether visitation will occur; distinguished because the order here fixed specific visitation.
- relied: In re Elizabeth M. (2008) 158 Cal.App.4th 1551 — Courts presume, under Evidence Code section 664, that a court knows and properly applies the law.
The appellate opinion: sound — The opinion answers each of the father's arguments with the controlling Supreme Court authority (Chantal S.) on the scope of section 362.4 exit orders, applies the correct deferential standard to the cost allocation, and accurately distinguishes In re T.H. on its facts. Its reliance on forfeiture for the jurisdictional point is bolstered by an alternative merits holding, so no argument is left unaddressed.
Opinion
Filed 11/13/14 In re I.P. 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
In re I.P., a Person Coming Under the Juvenile Court Law. D065735 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518574) Plaintiff and Respondent, v. MOHAMMAD S., Defendant and Appellant;
PAULA P., Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Jamie A. Moran, under appointment by the Court of Appeal, for Respondent, Paula P.
Mohammad S. appeals the juvenile dependency court's order that he bear the cost of his supervised visits with his minor daughter, I.P. Mohammad contends the court exceeded its jurisdiction and abused its discretion. We affirm.
BACKGROUND
In December 2012, the San Diego County Health and Human Services Agency filed a dependency petition for three-year-old I.P. The petition alleged she was exposed to violence between her mother, Paula P., and Mohammad. I.P. was detained with a relative. In January 2013, the court entered a true finding on the petition, ordered I.P.
placed with a relative and issued a restraining order protecting Paula from Mohammad.
I.P. then began a 60-day trial visit with Paula. In July, the trial visit became a placement.
Mohammad's visits were supervised. He did not take advantage of all the visitation he was allowed. In March 2013, he was arrested, jailed and charged with violating the restraining order and other offenses. Mohammad was released from jail in November.
In April 2014, the court awarded custody of I.P. to Paula and allowed Mohammad supervised visits on Sundays, Wednesdays and Fridays from 2:00 p.m. to 7:00 p.m.
Paula and Mohammad agreed on a supervisor, a family friend. The court ordered that Mohammad would bear the entire cost of supervision at the Family Visitation Center 2 should that be required, ordered Paula to investigate an alternative supervisor, and authorized supervision by any person agreed upon by Paula and Mohammad. The court terminated dependency jurisdiction.
DISCUSSION
Mohammad contends that by ordering him to bear the entire cost of supervision at the visitation center, the court abused its discretion by unreasonably limiting his visits and acted in excess of its jurisdiction.
When making a custody order and terminating dependency jurisdiction, the court may make a visitation order (Welf. & Inst. Code,1 § 362.4) and place reasonable conditions on visitation (In re Chantal S. (1996) 13 Cal.4th 196, 202-204, 213 [father's visitation conditioned on his progress in therapy; father to be financially responsible for visits]). We review a visitation order for abuse of discretion. (In re Stephanie M. (1994)
7 Cal.4th 295, 318-319; In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095.)
In the juvenile court here, the only contested issue was "who is going to pay for visitation at a family visitation center." Mohammad did not contend the court lacked jurisdiction to order that he bear the entire cost. Instead, he asserted that he and Paula should share the cost. Thus, Mohammad impliedly conceded the court had jurisdiction to decide who should pay. Mohammad has forfeited his right to assert on appeal that the court lacked jurisdiction. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1001; In re A.S.
(2009) 180 Cal.App.4th 351, 360, fn. 6.)
1 Statutory references are to the Welfare and Institutions Code unless otherwise specified.
3 Mohammad complains that section 362.4 does not "specifically authorize[] a juvenile court to order a parent to pay for the cost of supervised visits . . . after a dependency is terminated." The lack of an express mention of cost in section 362.4 does not deprive the court of the power to address that issue where, as here, it is essential to setting up a complete, workable system of visitation. To conclude otherwise would deprive the court of its statutory power to make a visitation order. " 'In our view section 362.4[, by] authorizing the court to make . . . visitation orders[,] implicitly authorizes the court to make collateral orders . . . that are reasonably related to the . . . visitation orders.' " (In re Chantal S., supra, 13 Cal.4th 196 at p. 204.) Mohammad's citation of section 900 et seq. is also unavailing; generally, those sections relate to government support of dependent children and parents' liability for that support.
Furthermore, there was no abuse of discretion. Mohammad argues that requiring him to pay the entire cost of the visitation center constituted "a gratuitous tax" designed to punish him for his failure to reunify and was contrary to I.P.'s best interests. The court expressly determined that its order was "not a matter of punishment but . . . a matter of fairness" and the record supports that determination. Since Mohammad's visits had to be supervised, the court had to address how the supervision would be accomplished. It was reasonable for the court to conclude that given the history of the case and the reasons for the supervision requirement, "the interest of equity or fairness" dictated that Paula should not bear the cost of supervision. Paula had achieved reunification and bore the expense of caring for I.P. Mohammad's inability to control himself had led to violation of the restraining order, driving under the influence and jail. As a result, Mohammad had never 4 achieved unsupervised visitation. It was fair that he bear the expense of any visits at the visitation center. There is no indication the order was inimical to I.P.'s best interests.
Mohammad argues the court's order amounted to a delegation to Paula of the power to determine visits, which would be infrequent or nonexistent. He premises this argument on the family friend's inability to supervise all visits, the probability Paula would not agree to an additional supervisor and the likelihood that "Mohammad . . .
lacked the ability to pay," Mohammad's premises are pure speculation. Moreover, his reliance on In re T.H. (2010) 190 Cal.App.4th 1119 is misplaced. In that case, "[t]he court . . . ordered that father have supervised visitation 'to be determined by the parents' . . . ." (Id. at p. 1122.) Such is not the case here.
Finally, Mohammad contends that if he seeks a change of the visitation order in family court, he will be prejudiced. He asserts he will not have appointed counsel; he will have the burden of proof; the family court will defer to the dependency court; and the matter is likely to be handled informally, without a contested hearing. At best, this contention is speculative. We presume the family court knows the law and properly applies it. (In re Elizabeth M. (2008) 158 Cal.App.4th 1551, 1556, citing Evid. Code, § 664.)
5 DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
Cites, in this corpus
- Alameda County Social Services Agency v. S.O. No. A128428 · 2010-11-16
- San Diego County Health & Human Services Agency v. Joseph S. No. D054951 · 2009-12-17
- In Re Elizabeth M. G038729 · 2008-01-16
- San Diego County Health & Human Services Agency v. Thomas M. D050407 · 2007-11-13
- In Re Valerie A. D049901 · 2007-06-26
- Riverside County Department of Public Social Services v. Randall S. No. S046778 · 1996-04-22
- In Re Stephanie M. S030816 · 1994-02-24