Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 10CEJ300034, Jane A. Cardoza, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
Trisha W. appeals from the juvenile court’s order granting a Welfare and Institutions Code section 388 petition filed by respondent Fresno County Department of Social Services (Department) with respect to her four daughters, 12-year-old A.W., 10-year-old S.A.C., nine-year-old T.M.C., and seven-year-old S.P.C. (collectively the girls). In granting the petition, the juvenile court ordered no visits between Trisha and her daughters, with the Department to continue to assess visitation and obtain therapeutic input. We affirm the order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
Shawn C. was found to be the presumed father of the three younger girls, while Trisha identified three men, Christopher G., Mark G. and Manuel, as possible fathers of A. By the dispositional hearing, the Department had not located any of the fathers except Mark, who was an alleged father. None of the fathers received reunification services and they are not parties to this appeal.
FACTUAL AND PROCEDURAL HISTORIES
The Dependency Petition
On February 4, 2010, two social workers and two police officers responded to a crisis referral alleging that Trisha was on parole and under the influence, and the home the family was living in was below minimal standards. They found six adults, seven children, a dog and two cats in the home. There was a very strong smell of urine and body odor. An officer suspected Trisha was under the influence of some type of substance and there were several other people in the home who were either on parole, on felony probation or under the influence of a controlled substance. Police performed field sobriety tests on Trisha and her boyfriend, Mark G., and arrested them both for child endangerment after determining Mark also was legally responsible for the girls as he had a notarized copy of a power of attorney. Mark told a social worker that the family was currently on a waiting list for emergency housing and was staying with a friend after being evicted from their last residence.
All references to date of events are to dates in 2010.
The social worker noted the home was “very dirty, ” with exposed wires on the living room’s walls and ceiling. Boxes of clothes, toys, paperwork and miscellaneous items were stacked up to the living room ceiling, and the floors in the living room, kitchen and two bedrooms were covered with clothes, toys, trash and left-over food. The kitchen contained numerous scattered dirty dishes and the entire house was infested with cockroaches. The food in the home was inedible, as it was cockroach-infested. The girls told the social worker the house was messy because they were in the process of moving, although they did not know when or where they were moving. During a search of the home, police found a methamphetamine pipe in a bedroom closet. The bedroom floor was covered entirely with clothes and other items stacked about one foot high. The strong odors in the home made it difficult for law enforcement and social workers to stay inside for prolonged periods of time.
Police placed a hold on the girls due to the home’s condition and the fact that everyone had been arrested. The girls were transported to an emergency shelter. They appeared fairly clean and healthy, and were dressed appropriately for the weather and their ages. They did not have any visible marks or bruises. A social worker interviewed each of the girls. A. told the social worker the family had been living at the house for a few months and they began living there when Trisha was released from prison. Before that, they were staying “all over the place.” The girls had known Mark for about two years and he was always with them. The girls said that Mark disciplined them by spanking them with his hands or a belt, and then sending them to a corner. They denied drug use by both Trisha and Mark. According to the girls, the home was in the same condition as it was when they first moved there.
On February 8 a team decision making meeting was held at the Department’s office with both Trisha and Mark present. Trisha stated she and Mark were temporarily residing with her aunt, where they planned to stay until they were able to find their own apartment. They both denied alcohol and drug use. Mark received unemployment benefits while Trisha’s main source of income was welfare. Trisha stated she was open to participating in any needed services. At the conclusion of the meeting, it was decided that if the aunt’s home was appropriate, the family would go on voluntary family maintenance, but if not, the Department would initiate dependency proceedings.
A social worker who visited the aunt’s apartment later that day determined the one bedroom apartment did not meet the Department’s minimal standards, as it had no gas or electricity, was too small, the only bedroom appeared to be used for storage as the floor space was covered with items, and a strong odor of animal urine and feces permeated the apartment. Accordingly, the Department initiated juvenile dependency proceedings over the girls based on allegations that the girls were at substantial risk of suffering serious physical harm or illness in that Trisha’s substance abuse problem negatively affected her ability to parent them.
At the February 11 detention hearing, the girls were detained and placed in foster care, while mother was given reasonable visitation to be supervised by the Department or an approved agency. The girls had one hour visits with their mother on February 12 and 19; the visitation supervisor did not report any concerns. On March 2, Trisha asked the social worker if Mark could participate with her in the supervised visits; the social worker said that while he could not participate in weekly visits, monthly supervised visits with both Trisha and Mark present could be arranged. The social worker informed the care provider for the girls that Mark had requested visitation and the social worker needed to speak with the girls about this. On April 19, the social worker told Trisha that “from now on” she would need to visit the girls alone because Mark was not part of the case plan and it was necessary to assess her own parenting skills.
Jurisdiction
Following a mediation, Trisha agreed to submit to an amended allegation in the petition under section 300, subdivision (b), that the girls were at substantial risk of suffering serious physical harm or illness in that she had a substance abuse problem that negatively affected her ability to provide them with adequate care, protection, supervision and a stable, clean and safe home environment, based on her history of marijuana abuse, the condition of the home where the girls were staying on February 4 that presented a health and safety hazard, and that the family had been moving from place to place and mother had not been able to obtain stable and suitable housing for them since January 2010. Accordingly, the juvenile court found the petition’s amended allegations true on May 13.
The Report for the Dispositional Hearing
In a social worker’s report prepared for the dispositional hearing, signed on May 28, the social worker stated Trisha had been consistently visiting the girls, the girls enjoyed their visits, they were comforted in her presence, and there appeared to be good parent/child bonding. During the weekly supervised visits, Trisha interacted appropriately with the girls, hugged them, discussed their homework, took pictures of them, asked how they were doing and played games with them. The foster family agency worker, however, informed the social worker that during the last several visits Trisha had encouraged the girls to misbehave in their placement so they could be moved or returned home, and that when Mark was present, Trisha appeared to take a “more back seat approach with regards to parenting and interaction with the children.”
Since being removed from Trisha’s custody, the girls were moved from the emergency shelter to a licensed foster home. On April 22 they were placed in another foster home due to A.’s behaviors. The girls were responding well to structure, but T.M. continued to have behavioral problems in the placement so she was separated from the others and placed in a respite home. T.M. requested she remain separate from her siblings.
The girls were scheduled to receive mental health assessments. A.’s assessment was completed on April 26, but a report was not available by May 28, while S.P.’s assessment was rescheduled for May 26. S.A. was recommended for individual treatment based on her April 26 assessment, which showed that she had symptoms of physical aggression with other children and siblings, daily temper outbursts, lies, sleep disturbance, enuresis and was highly needy for attention from the care provider. S.A. reported a history of chronic neglect and homelessness, and that she feared mean people, missed her father, had memories of her mother hitting her father, missed her mother and worried a lot. The therapist noted that S.A.’s reported attachment to Trisha sounded “quite unhealthy, ” therefore she recommended S.A. have only weekly “highly supervised” visitation until Trisha was able to demonstrate increased insight and judgment related to her parenting of S.A.
T.M. completed a mental health assessment on April 13. The therapist noted that T.M. reportedly had numerous behavioral and aggressive behaviors directed towards both children and adults, was overly emotionally reactive, had daily temper tantrums and would bang her head against the wall. The therapist stated T.M. had poor social skills and no significant peer relationships, and recommended supervised visits and individual therapy. The social worker noted that T.M. appeared to be slightly delayed in her social/emotional and mental/cognitive development, and displayed behavioral problems such as arguing with her siblings and hitting them when they said something she did not like. One day T.M. locked her foster mother out of the house and would not allow the other children to open the door. T.M. remained focused on her own self and reported a need for more one-on-one attention away from her siblings.
The Department did not recommend the girls be placed with Trisha, but did recommend that she receive reunification services. As of the writing of the report, however, Trisha had not started or completed any of the services she had been offered. On February 11, she completed an addiction severity index assessment, which recommended participation in residential substance abuse treatment, but she had not entered such a program despite being referred to one. She was scheduled to complete a parenting class but failed to provide the Department with her new address so the notices the Department sent about the class were returned. Trisha completed a domestic violence index assessment on March 2, which recommended she attend a domestic violence victim’s group, but she had not started the group. Trisha was to drug test for the Department eighteen times from February 11 to May 17; the only time she tested, on February 11, she tested positive for marijuana and methamphetamine. The other tests were “no shows” except for a March 3 test where Trisha did not provide a urine sample. Trisha also failed to complete a mental health assessment.
The dispositional hearing originally scheduled for June 3 was continued to June 24 because Trisha failed to appear. At the June 24 hearing, the Department submitted on the report and asked the court to follow the recommendation of reunification services to Trisha. The hearing was continued to July 29 after Trisha identified three possible fathers of A., one of whom was Mark, so the Department could clarify the paternity issue.
On July 21, Trisha was arrested and charged with second degree burglary. In a July 28 addendum report, the Department noted that the girls were placed together in a foster home pending location of a suitable relative or mentor home. At the July 29 hearing, Trisha appeared in custody. Mark also appeared and requested a paternity test. The court refused to order one, noting there was an existing child support order for a different father of A. The court continued the hearing to August 12 so the Department could obtain a copy of the child support order.
At the August 12 hearing, the Department’s attorney stated he had learned there was a child support order for A., but no amount ordered, and paternity was established through the court order. The court ordered a paternity test for Mark and continued the hearing to September 23. Trisha’s counsel informed the court that Trisha had not received visitation since the middle of July and asked that visits resume. The Department’s attorney stated he would let the social worker know. The girls’ attorney, noting the comment in the dispositional report about Trisha encouraging the children to misbehave, asked the court to admonish Trisha not to discuss the case with the girls during visits. The court ordered supervised visits with Mark after an assessment by the Department on ten days’ notice to the girls’ attorney.
The Section 388 Petition
On September 14, the Department filed a section 388 petition on form JV-180 requesting the court to change its February order granting Trisha supervised visits to an order suspending visits pending further therapeutic recommendation. When the JV-180 form asked what had changed since the prior order, the Department stated that Trisha was arrested on July 21 for the misdemeanors of theft of personal property and providing false information, but the charges were elevated to felony second degree burglary, Penal Code sections 459 and 460, subdivision (b), and she remained in custody on a parole hold, and the girls “have displayed increasing[] behaviors since their removal from [Trisha]’s care on 02/04/2010. These behaviors — which include pi[n]ching, hitting, kicking, punching themselves, one another and/or the care provider(s) — have resulted in two placement changes and a temporary separation of the children as well as jeopardized their current placement in August 2010. Individual mental health treatment — in addition to Therapy-Based Services (TBS) for S.[A.] and T.[M.] — have recently resulted in some positive changes in the children’s behaviors. At a staffing with the children’s treating mental health clinicians, the Department [] provided an update as to [Trisha]’s whereabouts and her significant other, Mark G[.]’s request for visitation with the children on 08/12/2010. In conclusion, the children’s treating mental health clinicians were not in support of continued visitation between [Trisha] and the children while incarcerated nor of supervised visitation between Mr. G[] and the children.”
Attached to the petition were three letters from the girls’ therapists. A.’s and T.M.’s therapist, Kerri Freeman, stated she was writing her letter in light of the recent discussion surrounding the possible visitation with Trisha “who is currently being housed at the Fresno County Jail.” In Freeman’s opinion, looking at the current progress and stability that had been established, she felt it would be detrimental to the emotional well-being and continued progress of T.M. and A. to have visitation at that time, and that visitation with Trisha in the jail was “not therapeutically recommended by this therapist for any client due to the emotional harm that it can cause and in looking at this client the possible regression that could take place.” Freeman noted that T.M. and A. were currently placed in a stable and loving home, and T.M., who previously had not been able to remain with her sisters due to her aggressive, unmanageable behaviors, had been able to maintain the placement with her sisters while showing tremendous behavioral improvement. The current home had opened new doors in providing T.M. and A. safety, and showed them a healthy family environment, consistency and love. Freeman explained that T.M.’s and A.’s behaviors pointed to children with an insecure and unhealthy attachment history, and they had started to positively attach to their foster parents. Freeman did not want to see that disrupted or undermined, therefore it was imperative that there be no disruptions in order to maintain stability and continued progress.
Freeman was also concerned about visitation with Mark, as it was apparent that he was a willing participant in Trisha’s lifestyle that led to the dependency case. Freeman reiterated that T.M. and A. needed the stability, structure and nurturing they were being given without any negative influence. Freeman further explained that T.M. had made significant progress from when she was first assessed, the progress was new and delicate, and Freeman was concerned that disruptions could be damaging. While A. had made progress just being in this particular placement, she would be starting therapeutic services soon which would open her up emotionally and possibly make her more vulnerable. Freeman concluded: “This therapist believes in order to continue T[.M.]’s emotional growth, stability and progress towards building health[y] attachments with her siblings, foster parents and peers[, ] and for A[.] to begin moving towards emotional health and as well as secure attachments[, ] that visitation is suspended with bio mom at this time.”
S.A.’s therapist, Angela Boardman, reported that she had made behavioral progress since being placed in the current foster home, as shown by the foster mother’s report, TBS feedback and clinical observation during sessions. Before the current foster home, S.A. and her siblings had several placement changes due to behavioral issues and were separated at one point due to out-of-control aggression and anger, resulting in physical harm to others. According to Boardman, S.A. exhibited behaviors indicative of an insecure and unpredictable attachment history. Due to the severity of the initial behaviors and the very recent progress and move toward stability, Boardman did not recommend initiating visits with any family members at that time. In addition, S.A. had verbalized that she did not want to visit Trisha in a jail setting and Boardman found no mental health benefit to such visits, as they would likely increase symptoms of anxiety and rumination. Boardman stated it was imperative to improving S.A.’s mental health that stability, predictability and a sense of safety be established. Boardman saw no mental health benefit to visitation with Trisha or Mark at that time “and doing so may undermine the progress that has just recently been established.” Boardman felt visitation should be suspended in the interest of emotional stability and continued progress toward healthy relationships with siblings, peers and care providers.
Finally, S.P.’s therapist, Jennell A. Casillas, opined that visits with Trisha would not be beneficial for S.P.’s emotional well-being and continued progress, and therefore should not take place at that time, due to Trisha’s lack of progress towards reunification and the severity of S.P.’s behaviors after visits with Trisha. Casillas explained that S.P. had also started to display inappropriate behaviors that required further exploration in a therapeutic setting before adding additional stressors. Moreover, Casillas did not believe that visits with Mark would be beneficial to S.P.’s progress.
The Hearings on Disposition and the Section 388 Petition
The hearing on the section 388 petition began on September 21. The court ordered the motion to be heard at the dispositional hearing, set for September 23, and ordered no visitation occur between Trisha and the girls pending that hearing. At the September 23 hearing, Trisha’s attorney stated that she was not contesting the Department’s dispositional recommendation for reunification services, but she was contesting the section 388 petition, noting that Trisha had not received any visits since July. The combined section 388 and dispositional hearing was continued to September 30 to allow Mark to attempt to elevate his paternity. Trisha’s attorney advised the Department that she wanted the therapists on whose opinion it was relying available to testify. The court continued the no visitation order pending the continued hearing.
At the September 30 hearing, the court first addressed disposition, on which Trisha’s attorney submitted. The court found the girls were persons described under section 300, subdivision (b) and made them dependents, removed them from mother’s custody, and ordered reunification services for Trisha. The court continued in place the order suspending visits with Trisha and set the section 388 petition for a contested hearing. Trisha’s attorney renewed her objection to the court’s orders for no visits, and stated she would subpoena the therapists for the hearing on the section 388 petition.
On October 6, Trisha filed a statement of contested issues, which reported that while in jail, she had been participating in the jail’s domestic violence class, the Celebrate Recovery program, a voluntary 12-step program designed to assist with substance abuse issues, and an AA/NA program, and she wanted to reunify with the girls. Trisha argued that while it was the Department’s position that the children were not stable in their placements and had to be moved because their behavior was problematic after visits with Trisha, no effort was made to address these behaviors while Trisha was out-of-custody and no such concerns were reported, and the Department ignored the court’s order for supervised visits while Trisha was in custody even though the girls were receiving mental health services and their behavior had stabilized. Trisha asserted the therapists’ letters show a bias against allowing the girls to visit her in jail without considering their relationship, and suspending visits would erode that relationship. The statement listed as witnesses the three therapists, the social worker, Trisha, and the three oldest girls, A., S.A. and T.M.
The contested hearing on the section 388 petition was held on October 21. The Department submitted on the petition and the attached letters. Trisha’s attorney submitted on the statement of contested issues and her argument. She argued the Department was asserting changed circumstances based on mother’s arrest along with the girls’ behavior since removal, and questioned why the Department did not seek to terminate visitation before mother was in custody. She asserted the Department’s evidence failed to demonstrate that suspending visits was in the girls’ best interests because their reaction to visits with Trisha while in jail was unknown since the girls had never visited her there, accordingly the therapists’ opinions regarding the impact of visits while in jail was speculative. She further argued the Department was relying on therapeutic opinions to thwart reunification because it preferred the girls’ placement.
The Department’s attorney responded that the therapists are experts and have rendered opinions that visiting Trisha while in custody would not be beneficial to them, and if Trisha wanted to question the basis for their opinions, she could have called them as witnesses.
The girls’ attorney then produced recent letters from the therapists, who she noted had been at the courtroom that morning, regarding an update on the three girls who had been called to testify. The letters had not been provided previously to counsel, so the court ordered a recess to give counsel an opportunity to review the letters before the court received them.
One letter from Freeman, dated October 20, stated that A. was assessed on August 24 and diagnosed with adjustment disorder with mixed anxiety and depressed mood, symptoms of which include feelings of anxiety, worry, fear, depressed mood, tearfulness, low self-esteem and feelings of hopelessness, and that A.’s behaviors had decreased significantly since she was assessed. T.M. was assessed on June 15 and diagnosed with adjustment disorder with disturbance of emotion and conduct, symptoms of which include violation of the rights of others, aggression, poor social skills, threatening others, impulsiveness, sad mood, irritability and withdrawal. When T.M. was assessed she had only been in her foster home for two weeks and engaged in behaviors such as assaulting the foster mother by hitting, kicking, and biting her, and engaged in temper tantrums which sometimes resulted in destruction of property. Freeman had forwarded numerous incident reports concerning aggressive behavior that had occurred towards the preceding foster mother and T.M.’s siblings. Freeman noted that when the children were visiting there were reports of unacceptable behavior. The social worker told Freeman that both Trisha and Mark had commented they wanted T.M.’s siblings back, but not T.M., due to her behaviors. During a session with T.M. on July 27, the foster mother reported a decrease in behaviors, stating the only change that had occurred was Trisha’s recent arrest. Freeman stated that neither girl should be called to testify, as it could exacerbate their symptoms.
In the other letter, dated October 19, Boardman stated that she had been S.A.’s therapist since June 2010 and had seen her weekly since then. S.A. had been diagnosed with adjustment disorder with disturbance of emotions and conduct. When initially assessed, S.A.’s symptoms included verbal hostility toward adults, aggression toward siblings, threatening to run away, and daily anger outbursts that sometimes lasted two hours and during which she would yell, scream, destroy property and threaten others. The foster mother who reported these symptoms also reported that visits with Trisha and Mark primarily triggered S.A.’s anger tantrums, which were typically worse and more severe directly following visits. Boardman stated that S.A. was just beginning to establish emotional stability in placement, which was recently disrupted by contact with her grandparents. TBS hours were increased due to behaviors that escalated in the last month. Boardman opined that it would be detrimental to S.A.’s emotional well-being and therapeutic process for her to testify.
After reviewing the letters, Trisha’s attorney objected to them as untimely and irrelevant since the letters were addressing whether the girls should testify but she did not call them as witnesses. The court noted the objections and received the letters. The girls’ attorney then asserted that they had been in six different placements, with the latest placement recently giving notice after the girls’ behaviors started up again following telephone conversations with their maternal grandparents. She further asserted that once the girls stabilize, conjoint therapy and visitation could be considered, and represented that the social worker could testify both to the girls’ behaviors over the six-month period that led to the visitation issue and that the Department had intended on drafting a section 388 petition to suspend visits before Trisha’s incarceration.
The court stated it had considered Trisha’s attorney’s objections and argument, and while it was not considering the therapists’ statements regarding the girls testifying, it would consider their letters to the extent they explain the girls’ behaviors after contact with family members. The court found there was a basis for the therapists’ opinions whether continued visitation was appropriate, namely the girls’ behavior. Accordingly, the court granted the request to continue the order of no visitation between Trisha and the girls, and ordered the Department to continue to assess the issue of visitation, particularly since the case was in reunification. The court ordered the Department to provide updated information at the next hearing on November 4 regarding whether a change of placement had occurred, whether the girls were still in therapy and their progress, and the therapists’ plans for resuming visits with Trisha.
Trisha’s attorney objected to the court’s order to terminate or suspend visits, stating she wanted to make it clear that the therapists were present that morning, but she released them after deciding she would argue the issue, and if she had known the information in the letters was available, she might have taken a different tack on the case. The court explained it was not suspending visitation, instead it was ordering no visits, which means the Department has to continue to assess the issue. The court further explained that the change of circumstance it found was the new evidence provided by the mental health professionals and the children’s progress in therapy, or lack thereof. Trisha’s attorney responded that the changed circumstance the Department relied on was Trisha being in custody, and the petition and therapists’ letters were very biased as to Trisha and the children reunifying. The court replied that incarceration is a factor to consider, but it should never be the sole consideration for denying visitation. The court restated its order that there be no visits and the Department was to obtain therapeutic input, and that it would be addressing the visitation issue throughout the case.
DISCUSSION
Trisha contends the juvenile court erred in granting the section 388 petition because there was insufficient evidence of detriment to the girls in continuing visitation. Trisha also contends her due process rights were violated when the Department changed its theory on the petition at the hearing and the juvenile court relied on the therapists’ updated letters. We disagree.
Substantial Evidence
The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and that modification would promote the dependent child’s best interests. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The juvenile court’s order on a section 388 petition is ordinarily reviewed for an abuse of discretion. (In re Michael B., supra, 8 Cal.App.4th at p. 1704; In re Casey D. (1999) 70 Cal.App.4th 38, 48.) Suspension of visitation, however, requires a showing of detriment. (In re Luke L. (1996) 44 Cal.App.4th 670, 679; § 366.21, subd. (h)) and is reviewed under the substantial evidence standard. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
Visitation is an essential part of a reunification plan. “In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶]... Visitation shall be as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).) Visitation is no less crucial for an incarcerated parent receiving reunification services. (§ 361.5, subd. (e)(1); In re Dylan T. (1998) 65 Cal.App.4th 765; In re Brittany S. (1993) 17 Cal.App.4th 1399.) Therefore, when reunification services are being provided, it is error to deny visitation with the parent to whom the services apply unless there is sufficient evidence that visitation would be detrimental to the child. (In re Dylan T., at p. 769 [denial of visitation improperly based upon minor’s age alone]; In re Brittany S., at p. 1407 & fn. 7 [denial of visitation improper where mother incarcerated only 36 miles distant].)
Here, the juvenile court found detriment. Substantial evidence supports that finding, which is unassailable whether it was made by a preponderance of the evidence (In re Manolito L. (2001) 90 Cal.App.4th 753, 758) or clear and convincing evidence (see In re Dylan T., supra, 65 Cal.App.4th at p. 773). Additionally, the Department showed changed circumstances, that Trisha was incarcerated and the girls’ behaviors following removal had worsened, and that stopping visits would promote the girls’ best interests. The court did not abuse its discretion by granting the petition.
The detriment of continuing visits with Trisha was evident from the behaviors of the girls that had escalated since being removed from Trisha’s custody, which the Department described on the JV-180 form as pinching, hitting, kicking, and punching themselves and others. Freeman, the therapist for T.M. and A., explained in her letter attached to the section 388 petition that both girls had behavioral problems that were being addressed in therapy, they had made progress toward managing their behaviors, and in order for T.M. to continue her emotional growth, stability and progress towards building healthy attachments, and A. to move toward emotional health and secure attachments, visitation with Trisha should be suspended at the time to avoid negative influences that might disrupt the stability, structure and nurturing they were receiving. Boardman, S.A.’s therapist, did not recommend visits with any family members at the time because such visits might undermine the progress S.A. had made in dealing with her behaviors, which were initially severe, and recommended suspension of visits in the interest of emotional stability and continued progress toward healthy relationships. Casillas, S.P.’s therapist, opined that visits with Trisha would not be beneficial to S.P.’s emotional well-being and continued progress due to Trisha’s lack of progress toward reunification and the severity of S.P.’s behaviors after visits with Trisha, noting that S.P. had started to display inappropriate behaviors that needed further exploration in a therapeutic setting before adding more stressors.
The detriment of continued visitation was further shown by the updated letters from the therapists, which the girls’ counsel provided at the hearing on the petition. These letters further described the girls’ behaviors: A. had symptoms of anxiety, worry, fear, depressed mood, tearfulness, low self-esteem and feelings of hopelessness; T.M.’s symptoms included violating the rights of others, aggression, poor social skills, threatening others, impulsiveness, sadness, irritability and withdrawal, and she had assaulted the foster mother and engaged in temper tantrums; and S.A. had symptoms of verbal hostility toward adults, aggression toward siblings, and daily anger outbursts. There were reports that the girls’ symptoms became worse after visiting with Trisha, and that their symptoms decreased once they stopped visiting in July.
The letters from the therapists support the juvenile court’s conclusion that continuing visits with Trisha at that time would be detrimental to the girls’ emotional stability. Trisha, however, contends the opinions of the therapists were too vague and speculative to show that continued visitation with her would be against the girls’ best interests. Trisha asserts the section 388 petition was brought solely on the changed circumstance of her incarceration and the therapists’ recommendations were based on that circumstance, i.e. that the girls should not visit her while incarcerated. Trisha argues their opinions were speculative because they do not explain “what specific conditions of visitation with an incarcerated parent would be detrimental” to the girls and none of the letters show the therapists considered any specific information as to what visits with Trisha while in custody would actually entail.
Trisha’s argument is misplaced because it is based on the assumption that the only changed circumstance the Department relied on was Trisha’s incarceration. To the contrary, the Department specifically stated on the JV-180 form that the changes included both Trisha’s incarceration and the girls’ escalating behaviors. While the therapists did opine that visitation with Trisha while incarcerated would be harmful to the girls, that opinion was not that limited to the fact of Trisha’s incarceration. It is apparent from the letters that the goal of therapy was to ensure the girls were emotionally stabilized and that visits with Trisha, in whatever setting, would disrupt that goal. That opinion was adequately supported by the evidence that the girls’ behaviors worsened following visits with Trisha. This is not a case like In re Kimberly F. (1997) 56 Cal.App.4th 519, 527, on which Trisha relies, where a psychologist’s opinion that the mother was narcissistic did not show detriment to the children.
As there was substantial evidence to support the finding that continued visitation with Trisha would be detrimental to the girls, we conclude the juvenile court did not abuse its discretion in ordering no visits occur with Trisha. We note that the juvenile court did not foreclose the resumption of visitation, but expressly ordered the Department to continue to assess the situation, to obtain the therapists’ opinions regarding resuming visits, and stated it would address this issue throughout the case.
Due Process Concerns
Trisha also contends she was taken by surprise when the juvenile court considered argument and evidence that was not properly part of the Department’s petition, as the petition was based on the claim that visitation with her in a custodial setting would be detrimental to the girls and the Department “changed its tack” at the hearing when it argued that visitation was detrimental to the girls apart from her incarceration. Trisha asserts that due process mandates she receive reasonable notice of the relief the Department is seeking and the basis upon which such relief is requested so she has an opportunity to present a meaningful defense, and because of the Department’s “sudden change in tack, ” she “did not have adequate notice of the true nature of the 388 hearing, or an opportunity to present a meaningful defense.”
To protect the welfare of the child and ensure an accurate and just decision regarding parental rights, it is well settled that parents must be given notice at each step of the proceedings. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) The notice must comport with due process, which requires that “‘“notice [be] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”’” (Ibid.)
We note that the Department did not make the argument Trisha cites; instead, the argument was made by counsel for the girls, who also submitted the therapists’ updated letters. Moreover, the cited argument repeated what the therapists originally stated, i.e. that they believed the girls needed to be stabilized in their placement and their behaviors under control before visits with Trisha resumed. There was nothing surprising about this argument, nor was it a change from what the Department alleged in its petition, which cited both the fact of Trisha’s incarceration and the girls’ escalating behaviors since removal as changed circumstances that justified requesting suspension of visitation pending therapeutic recommendation. The therapists’ letters attached to the petition cited to the girls’ behaviors and the need to stabilize them as reasons for stopping visitation. S.P.’s therapist, Casillas, specifically cites the severity of S.P.’s behaviors after visits with Trisha as a reason for recommending no visitation with Trisha.
The record shows that Trisha had notice of the grounds for the section 388 petition and an opportunity to present her defense. Trisha contends she was denied the opportunity to cross-examine the therapists. After the juvenile court explained its ruling and order, Trisha’s attorney objected to the order, stating the therapists were present that morning, she released them because she decided to argue the matter, and she might have used a different tactic had she known the information in the update letters. Trisha’s attorney, however, never sought a continuance of the hearing so she could obtain the therapists’ testimony. Instead, she objected to the letters as untimely and irrelevant. Since Trisha never requested and the juvenile court never denied her the opportunity to cross-examine the therapists after the updated letters were received, the issue has not been preserved for appellate review. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) Moreover, while the updated letters supplied additional information regarding the girls’ diagnoses, symptoms and behaviors, they did not offer an opinion different than that in the letters attached to the JV-180 petition, namely that visits with Trisha should be suspended until the girls could obtain emotional stability.
In sum, Trisha had ample notice that the Department sought to suspend visitation not only because of Trisha’s incarceration, but also because visits with Trisha were detrimental to the girls. Accordingly, there was no due process violation.
DISPOSITION
The juvenile court’s order filed on October 21, 2010 granting the Department’s section 388 petition is affirmed.
WE CONCUR: Wiseman, Acting P.J., Levy, J.