IN RE ROGER S

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Docket Number

Docket No. G010745.

Attorney(S)

COUNSEL Steven A. Schutte, under appointment by the Court of Appeals, for Defendant and Appellant. Terry C. Andrus, County Counsel, and Michelle Ben-Hur, Deputy County Counsel, for Plaintiff and Respondent. Theodore S. Goodwin, under appointment by the Court of Appeals, for Minor.

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Smart Summary

Factual and Procedural Background

Roger S. and Rhonda C. are the parents of Roger, born in August 1985. Prior to the child's birth, Roger S. suffered head injuries in a 1984 car accident that caused violent and erratic behavior, resulting in hospitalization and treatment. This condition contributed to the parents' separation and divorce in 1987. Following the divorce, visitation rights became contentious, with the family court ordering monitored visits due to the father's mental health and potential risk to the child. Because the parties could not afford a paid monitor, visits were supervised by unpaid relatives chosen by each party.

In October 1988, the juvenile court became involved after the mother’s monitor reported allegations of excessive corporal punishment and attempted sexual abuse by the father during visits. A petition was filed under Welfare and Institutions Code section 300 alleging physical and sexual abuse, but those counts were dismissed by stipulation. Jurisdiction was established under section 300(c) for serious emotional damage. Custody remained with the mother, and monitored visitation was ordered along with psychological evaluations.

Over the next two years, the Orange County Social Services Agency supervised the case with periodic reviews and adjusted visitation schedules. In February 1991, at a six-month review hearing, the agency recommended terminating juvenile court jurisdiction while maintaining the existing monitored visitation order. The father sought to present evidence to modify visitation, but the juvenile court limited the hearing to whether continued jurisdiction was necessary, relying on In re Elaine E.. The court refused to hear evidence on visitation changes unless a verified petition under section 388 was filed. The father attempted an oral motion to modify visitation, which was denied.

The case worker recommended continuing monitored visitation and participation in the PACT program, including sharing monitoring costs and specifying visitation frequency and duration. The father sought to present testimony from four witnesses supporting increased visitation and asserting the father’s mental health was controlled, but the court precluded this evidence. The court ultimately terminated jurisdiction but adopted the existing visitation order without change.

Legal Issues Presented

Whether the juvenile court erred by refusing to hear evidence regarding modification of visitation orders at a six-month review hearing before terminating jurisdiction.
Whether the juvenile court has the authority under Welfare and Institutions Code sections 362.4 and 364 to consider evidence relevant to visitation orders when terminating jurisdiction and transferring orders to family court.

Arguments of the Parties

Appellant's Arguments

The juvenile court improperly limited the hearing to the issue of continuing jurisdiction and refused to consider evidence supporting modification of visitation orders.
The court had authority under sections 364 and 362.4 to receive evidence relevant to visitation orders when terminating jurisdiction.
The existing visitation order should have been modified based on evidence showing the visits were appropriate and the father’s mental condition was controlled.

Respondent's Arguments

Relying on In re Elaine E., the agency argued the court’s review under section 364 is limited to whether continued supervision is necessary and excludes consideration of visitation modifications.
The proper method to modify visitation is through a verified petition under section 388, not during the periodic review hearing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Elaine E. (1990) 221 Cal.App.3d 809	Section 364 limits juvenile court review hearings to the issue of continuing jurisdiction; visitation modifications require a verified petition under section 388.	The trial court relied on Elaine E. to exclude evidence on visitation modification at the review hearing, but the appellate court rejected this limitation as applied to section 362.4 termination orders.
In re Benjamin D. (1991) 227 Cal.App.3d 1464	Distinguishes juvenile court’s parens patriae role from family court’s best interest determinations in custody and visitation matters.	Supports the view that juvenile courts have a broader responsibility to consider the totality of the child's circumstances before issuing orders affecting custody and visitation.

Court's Reasoning and Analysis

The court analyzed the statutory framework governing juvenile court jurisdiction and visitation orders. Section 364 mandates periodic review of dependency cases to determine whether continued supervision is necessary, focusing on whether conditions justifying jurisdiction persist. The agency relied on In re Elaine E. to argue that such review hearings cannot consider visitation modifications, which must be pursued via section 388 petitions.

The court acknowledged the factual and procedural similarities to Elaine E. but identified a critical distinction: section 362.4 authorizes the juvenile court, upon terminating jurisdiction, to issue custody and visitation orders that transfer to family court and remain effective until modified. This statutory power logically includes the authority to consider evidence relevant to visitation at the termination hearing.

The court rejected the trial court’s strict reliance on Elaine E. to exclude visitation evidence, holding that to the extent Elaine E. suggested such exclusion under section 362.4, it was incorrect and declined to follow it. The court emphasized that the juvenile court’s parens patriae role requires a comprehensive evaluation of the child’s best interests, which cannot be fulfilled by blindly adopting an existing visitation order without considering new evidence.

Accordingly, the juvenile court erred by refusing to hear the father’s evidence and by adopting the prior visitation order without modification despite recommendations to the contrary.

Holding and Implications

The appellate court REVERSED the juvenile court’s order terminating jurisdiction and maintaining the existing visitation schedule without permitting evidence on visitation modifications.

This decision directly affects the parties by requiring the juvenile court to consider relevant evidence regarding visitation when terminating jurisdiction and issuing termination orders under section 362.4. The ruling clarifies the juvenile court’s authority to evaluate visitation arrangements at termination hearings, ensuring that such orders serve the child’s best interests. No new precedent beyond the case’s application was established.

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In re ROGER S., a Person Coming Under the Ju v. nile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,

OPINION

WALLIN, J.

Roger S. appeals from the juvenile court order terminating jurisdiction over his son, also named Roger, ordering the previously existing monitored visitation arrangement to remain in effect, and directing the order to be filed in the existing superior court file dealing with the parents' dissolution of marriage. He claims the court improperly refused to hear evidence regarding proposed modifications of the existing orders, instead limiting the hearing solely to the need for continuing jurisdiction. We find the contentions meritorious and reverse.

Roger S. and Rhonda C. are the parents of Roger, who was born in August 1985. Roger S. was in a car accident in 1984 and suffered head injuries, resulting in violent and erratic behavior requiring hospitalization and treatment. This situation led to the parents' separation and eventual divorce in 1987.

After the divorce, the parties bitterly disputed the father's visitation rights. The family court ordered monitored visits due to the father's mental condition and potential risk to the child. The parties were unable to afford a paid monitor, however, so the visits were attended by two unpaid relatives, one chosen by each party. The case was referred to juvenile court in October 1988 after the monitor chosen by the mother reported the father used "excessive and inappropriate corporal punishment" and attempted sexual abuse of the child during visits.

A petition to declare the child a dependent of the juvenile court was filed under Welfare and Institutions Code section 300, subdivisions (a) and (d), alleging physical and sexual abuse. The court subsequently dismissed those counts, pursuant to the parties' stipulation, and in January 1989 found jurisdiction was established under section 300, subdivision (c), based on the infliction of serious emotional damage. Custody of the child was ordered to remain with the mother, and the parties were ordered to submit to psychological evaluations by the court evaluation and guidance unit and to comply with the monitored visitation schedule.

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

For the next two years, the parties were supervised by the social services agency (the agency). The case underwent periodic reviews and the father's visitation schedule varied according to the progress made. Case workers and assistant case workers monitored the father's visits.

In February 1991, the court held a six-month review hearing to consider the agency's recommendation that jurisdiction be terminated with the existing visitation order to remain in effect. The father sought to present evidence to support a change in the visitation orders, but the court, relying on In re Elaine E. (1990) 221 Cal.App.3d 809 [ 270 Cal.Rptr. 489], limited the review hearing to whether conditions for continuing supervision existed, and ruled any evidence regarding a change in visitation would have to be introduced by a motion to modify an existing order under section 388. The father attempted to make an oral motion to modify, but the court refused to hear it, pointing out that section 388 requires a verified petition.

The case worker testified she recommended termination of jurisdiction on the conditions that the father's visitation continue to be monitored and the parents continue to participate in the PACT program. She recommended the court's order provide that the parents were to continue PACT services and share the cost of a monitor and specifically set out the frequency and duration of the father's visitation.

The case worker explained: "[PACT] stands for `Parents and Children Together.' It is a unit of social services under the family unit program to coordinate the family and provide education where the children are residing with one of the parents. . . . It is to coordinate individual therapy, rather than to have the child and each of the parents seeing separate therapists and agencies somewhere in the community."

The father sought to present four witnesses: the father's psychiatrist, a case worker and an assistant case worker who had had previous responsibility for the case and had monitored visits, and the father himself. These witnesses were prepared to testify the visits between father and child were appropriate and should be increased, the child suffered no harm emotionally while in the father's care, the father's mental condition was completely under control and the child's emotional problems relating to visitation were a result of the mother's behavior, not the father's. The court ruled the father was precluded from presenting evidence as to the visitation schedule by In re Elaine E., supra, 221 Cal.App.3d 809.

The court indicated its desire to include a provision in the visitation order giving the child's therapist the discretion to increase the duration of the visits. After being reminded of the restrictions of Elaine E., however, the court retreated from that position and adopted "exactly, without alteration," the visitation schedule that was ordered in July 1990. Accordingly, the court terminated jurisdiction over the child and limited the father to visitation every other week for one to two hours to be monitored by someone from the agency.

(1) The father contends the trial court had the power, under sections 364 and 362.4, to receive evidence regarding an appropriate visitation order and its failure to do so was error. We agree and reverse.

When the juvenile court took jurisdiction over the child in this case, it ordered the mother to retain custody subject to the supervision of the agency. When custody of a dependent child has not been removed from the parent, the case is subject to court review at six-month intervals under section 364. That section provides: "(c) After hearing any evidence presented by the probation officer, the parent, the guardian, or the minor, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the probation department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that such conditions are likely to exist if supervision is withdrawn. . . ." The agency argues, based on Elaine E., that section 364 directs the court to focus exclusively on the question of whether continued supervision is necessary and precludes the court from taking evidence on visitation orders.

In re Elaine E., supra, 221 Cal.App.3d 809, is factually similar to this case. The minor children were adjudged dependents of the juvenile court concurrently with the parents' dissolution action, and custody was given to the mother. The father's visits were supervised during the four years of juvenile court jurisdiction. At what became the final review hearing, the social worker recommended continued jurisdiction with unsupervised visitation; the trial court, however, informed the parties it intended to terminate jurisdiction and transfer the existing visitation orders to the family court. The trial court refused the father's proffered evidence supporting an unsupervised visitation order because he had failed to make a showing of changed circumstances required to modify an existing visitation order under section 388.

Section 388 provides, "Any parent or other person having an interest in a . . . dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change. . . . [¶] If it appears that the best interests of the child may be promoted by the proposed change . . ., the court shall order that a hearing be held. . . ."

The court affirmed, holding section 364, "[b]y its very terms . . . limits the [trial] court's inquiry to whether the conditions for continuing supervision exist." (221 Cal.App.3d at p. 814.) It held the only vehicle for a noncustodial parent to modify an existing order was a petition to modify under section 388.

We think, however, when making an order to be transferred to the family court, the juvenile court has the power to hear evidence relevant to that order under section 362.4, which the Elaine E. court did not discuss. When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court. As section 362.4 gives the juvenile court power to fashion termination orders, it makes no sense to interpret section 364 to preclude the court from considering evidence relevant to that task. To the extent Elaine E. implies that a trial court cannot receive evidence concerning visitation under section 362.4, we decline to follow it.

Section 362.4 provides, "When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor's attainment of the age of 18 years, and proceedings for the declaration of the nullity or dissolution of the marriage, or for legal separation, of the minor's parents, or proceedings to establish the paternity of the minor child . . ., are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue an order directed to either of the parents enjoining [certain actions] . . . or determining the custody of, or visitation with, the child. [¶] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the [superior court] proceeding . . . at the time the juvenile court terminates its jurisdiction over the minor, and shall become a part thereof. [¶] If no action is filed or pending relating to the custody of the minor in the superior court of any county, the juvenile court order may be used as the sole basis for opening a file in the superior court of the county in which the parent, who has been given custody, resides. . . ."

Section 388, on the other hand, is a general provision to be used by any interested party when circumstances merit an examination of the orders affecting a dependent child other than the periodic reviews prescribed by statute; if the petition is sufficiently compelling, the court is empowered to set an immediate hearing on the matter. In this case, however, the trial court had the parties before it for the specific purpose of assessing progress and determining whether judicial intervention could be withdrawn. Having decided to terminate jurisdiction, the court chose to exercise its power to make a termination order. It erred, however, in refusing to consider the father's evidence on visitation, closing its eyes to the recommendations of the case worker, and finding it was compelled to adopt the existing seven-month-old visitation order without change.

(2) Although both the family court and the juvenile court focus on the best interests of the child, the juvenile court has a special responsibility to the child as parens patriae and must look at the totality of the child's circumstances. "It is one thing for a family law court to determine the best interests of the child as between two parents under title 4 of the Family Law Act (Civ. Code, § 4600 et seq.). It is quite another for a juvenile court to determine the best interests of the child in a proceeding where there is the possibility both parents could lose custody or visitation rights." ( In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 4 [ 278 Cal.Rptr. 468].) By empowering the juvenile court to issue custody and restraining orders, the Legislature has expressed its belief that "the juvenile court is the appropriate place for these matters to be determined and that the juvenile court's orders must be honored in later superior court proceedings." (Seiser, Custody and Restraining Orders in the Juvenile Court (Aug. 1990) Family Law NewsAlert (Cal.Ed.) 4, 8.) The trial court here, by refusing to accept evidence relevant to the visitation order, was in danger of issuing an uninformed order which could fail to serve the best interests of the child.

The judgment is reversed.

Sills, P.J., and Moore, J., concurred.