Opinion
NOT TO BE PUBLISHED
Received for posting 12/20/10
APPEAL from a judgment of the Superior Court of Stanislaus County Nos. 504782, 504784 Nancy Barnett Williamsen, Commissioner.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel for Plaintiff and Respondent.
OPINION
DAWSON, J.
Appellant S.F. is the mother of the minors M.A. and R.A. In this dependency proceeding, she appeals from a postpermanency visitation order modifying visitation between her and the minors from in-person visits to supervised phone calls. Appellant has been incarcerated throughout the nine-year history of this case and will continue to be incarcerated past the age of majority for each of her children. In fact, as a practical matter, we note R.A. turned 18 in August of 2010, and this issue is moot as to her. In any event, we find no abuse of discretion and affirm.
BACKGROUND
Appellant was convicted in November of 1995 of first degree burglary with prior felony convictions, auto theft, burglary of a person who was disabled or over the age of 65, and three counts of theft by use of access card data. She was sentenced to 23 years in prison.
At the time of appellant’s conviction, R.A. was three years old and M.A. was seven months old. Their father was not present to care for them. R.A. and M.A., and their three siblings, went to live with family members, where they remained until a Welfare and Institutions Code section 300 petition was filed in October of 2001.
All further statutory references are to the Welfare and Institutions Code.
The three other siblings are A.E., who was on juvenile probation at the time the petition was filed and not included; G.A., who was part of the original petition but has reached majority; and E.A., who remains a dependent, but whose case was heard separately and is not a subject of this appeal.
At the time of the petition, appellant’s four younger children were living with their grandmother, their aunt, and six cousins in a motel and/or vehicle parked on a country road. The children were dirty and their heads had been shaved due to lice. The grandmother and aunt had a history of failing to follow through on various offers of benefits and services. Appellant’s four children were found to be dependents of the court and placed in separate foster homes.
The report prepared in anticipation of jurisdiction and disposition stated that R.A., who was nine years old at the time, was struggling in school and needed a tutor. She did not exhibit any emotional concerns at being separated from her family. M.A., who was six years old at the time, had serious mental and emotional issues and was placed in counseling.
In December of 2001, the petition was found true and all four children declared dependents. Reunification services were denied to appellant due to her lengthy incarceration (§ 361.5, subd. (e)(1)), and to the children’s father because his whereabouts were unknown (§ 361.5, subd. (b)(1)). Visits with appellant were to be in writing and by telephone.
The report prepared in May of 2002 in anticipation of the status review hearing stated that R.A. and her sister were now placed together, as were M.A. and his brother. The children had regular visits with each other and with extended family members. No visitation schedule was in place for appellant, but the children received letters and gifts from her. The children’s father was located but indicated that he could not care for them. The court set a section 366.26 hearing regarding all four minors.
The report prepared in August of 2002 in anticipation of the section 366.26 hearing stated that the children had been moved to separate homes because they were unable to get along with each other when placed together. Long-term foster care was recommended for R.A. and M.A. because their caretakers were unwilling to commit to a more permanent plan.
The children’s behavior was described as “unstable and somewhat aggressive, ” although R.A. was not as aggressive as M.A. R.A. wanted to visit her grandmother and was close to her younger sister. M.A. was not only aggressive, but “very distractible, impulsive and hyper, ” and it was suspected he had been exposed to drugs in utero. He was prescribed medication. He did not wish to visit his siblings. The children received letters monthly from appellant.
Appellant requested that the children visit her in prison. Because of the children’s unstable mental condition, the social worker opined that it would be detrimental for them to visit appellant in prison and, instead, arranged a visit to occur at the county jail when appellant attended the hearing. It was recommended that contact with appellant continue to be on a written basis.
At the October 2002 contested section 366.26 hearing, the court ordered that, due to emotional problems caused by the visits, R.A. and M.A. were only to have contact with appellant or the maternal grandmother by letters and photos. Long-term foster care was established as the permanent plan for both minors.
By the following year, R.A. was stable in her foster home placement and doing well in school. She was seeing a therapist and her behavior had stabilized. She wanted to resume visits with her siblings and appellant. M.A. was having severe problems with aggressive and destructive behavior, resulting in several foster home placement changes. He also exhibited sexualized behaviors and there was concern of earlier sexual abuse.
In June of 2003, a section 388 modification petition was filed requesting that all four minors be allowed to visit appellant in prison three times a year. The social worker indicated that the minors had stabilized in their placements and that they missed appellant. The petition was granted.
Three months later, a status review report stated that R.A. “has always expressed a strong family connection” and enjoyed the visit with appellant and her siblings. The social worker opined that, as long as it did not disrupt R.A.’s behavior in her foster home, the contact seemed to be in her best interest. M.A. tested to be in the mildly retarded range and continued to have difficulty in school. He was easily frustrated and disruptive in class.
In April of 2004, a Court Appointed Special Advocate (CASA) was selected for the children. The CASA worker reported that R.A. was doing well in foster care but wished to live with her aunt and to visit appellant. The CASA worker recommended only two supervised visits a year with appellant because various service providers reported that the behavior of the children deteriorated after each visit. The children were described as “negative” and used profanity after such visits.
At the review hearing in August of 2004, the court allowed visitation to be once a month, provided in-person visits be “supervised by a responsible adult who can end the visit at any time that the mother’s conduct or words are inappropriate including extreme foul language. Mother needs to learn how to monitor her words around her children [and] recognize how such language can be detrimental to the children as well as to the children’s social development.”
In October of 2004, R.A. went to live with an aunt. The following month, the Stanislaus County Community Services Agency filed a section 388 modification petition to set a section 366.26 hearing to change R.A.’s permanent plan to guardianship. But by the time of the section 366.26 hearing in February of 2005, R.A.’s aunt decided not to accept guardianship of R.A. because R.A. wanted to return to foster care. She was now in junior high and her grades had plummeted. R.A. did not attend after-school tutoring and often skipped class. It was believed R.A.’s request to return to foster care was an attempt to be closer to her brothers.
In the report prepared in anticipation of the late summer of 2005 review hearing, the social worker stated that R.A. continued to struggle and needed to repeat seventh grade. R.A.’s bond to her family made it difficult for her to accept a foster home. She stated that visits with appellant were important to her and she requested she be able to see appellant more often.
The report also stated that M.A. continued to have problems. He did well in foster care until he visited appellant in prison. He then became violent with his foster mother, injured her slightly, and told her appellant had said he did not have to listen to her. The social worker recommended suspending M.A.’s in-person visits with appellant. The recommendation was supported by M.A.’s therapist who felt his cognitive abilities were compromised by appellant’s misleading statements during visits and the anxiety and confusion caused by the distance and travel required to see appellant.
At the subsequent hearing, the court ordered bimonthly in-person visits for R.A. and limited visits with M.A. to written correspondence.
In 2006, M.A. was placed in a group home due to his “aggression towards children, noncompliance/oppositional behavior, depression, mood swings, tantrums, hyperactivity, peer difficulties, impulsive [sic], anxiety.” R.A., who struggled with any adult supervision, was also in a new foster home. She continued to have monthly visits with her mother, which she enjoyed. By July of 2006, however, R.A. stated that though she would continue to visit twice a year with her older brother, she no longer wished to visit her mother. M.A. either did not want to see appellant or was unsure whether he did or not.
At the review hearing in July of 2006, appellant requested resumed visitation with M.A. and asked that the visits be on weekends, when the prison could better accommodate family visits. She suggested that the grandmother transport all four children to the visits on an every other month basis. The social worker for the group home where M.A. resided requested discretion in the number of visits M.A. attended because M.A. was ambivalent about the visits and the social worker wished to assess his stability after each visit. The court ordered a minimum of quarterly visits with all four children and gave the social worker discretion to allow the grandmother to provide the transportation and to increase the number of visits if appropriate.
At the beginning of 2007, the social worker reported that the children were having difficulty after visits with the family. R.A. was intoxicated when she returned from one visit to her grandmother’s house. Her grandmother allowed her to smoke and drink and to go to the homes of relatives that had not been approved by the county. She became increasingly defiant and disrespectful in her foster home. M.A.’s aggressive behavior continued and police were called on two occasions. He had the most difficulty during transition from one activity to another, such as from school back to the group home.
In June of 2007, the social worker reported that R.A. continued to have difficulty at school, including two suspensions for using profanity against a teacher. After she reportedly assaulted a teacher, the school recommended expulsion but stayed it pending her subsequent behavior. R.A. said she wanted to live with her grandmother, who seemed to have no control over her. Additionally, the grandmother’s home did not meet licensing standards. It was believed R.A. was involved with a gang.
M.A. continued to test in the mildly retarded range, with additional diagnoses of “ADHD, PTSD and Oppositional/Defiant Disorder/Conduct Disorder.” He was, however, stable in his group home placement and visited appellant once without incident. Quarterly visits with appellant were ordered continued.
By December of 2007, the grandmother had lost her housing and visits to her home were suspended. Visits with appellant were suspended for a time because appellant was placed on a no contact order at the prison and the children did not want to visit her through glass.
In May of 2008, M.A. continued in the group home and, except for one serious tantrum, was doing better. No changes were made to the visitation orders. Later that year, M.A. moved out of the group home and into a foster home.
In April of 2008, R.A. was on informal juvenile probation and on “house arrest” at the foster home. When she was released in October of 2008, she began defying the foster home’s curfew and was placed back on house arrest. She was attending an alternative school, but by March of 2009, R.A. had run away from the foster home. Both children continued to visit appellant.
In March of 2009, the CASA worker detailed R.A.’s multiple runaways, placements in several group homes and foster homes, as well as the criminal charges of assault and property damage stemming from her aggressive behavior at the group homes. At the subsequent hearing, visits with appellant at the prison were set at a minimum of four times a year.
In the October of 2009 administrative review report, R.A. was said to be close to being expelled from the alternative school. A meeting between the CASA worker, the social worker and the school resulted in R.A.’s transfer to another school, but R.A. immediately missed multiple days at the new school. R.A. was using marijuana, she lost her job, and she was not attending anger management classes. Visits with appellant were erratic—at times R.A. had no desire to visit and other times she would demand an immediate visit. She did not want to visit appellant in the summer months because of her job. The social worker observed that the visits with appellant were a source of trauma for R.A. M.A. was doing well in school. He was indifferent about visiting his mother and preferred to have contact with his siblings by phone.
In October of 2009, R.A. again ran away from her foster home and was still on the run as of the February 2010 review report. When she was contacted occasionally by social services, she refused all help. R.A. did have phone contact with appellant. In the report, the social worker stated that various observations from multiple care providers agreed that R.A.’s contact with appellant resulted in increased oppositional and defiant behavior and further reluctance to participate at home or in school. R.A. told the social worker that during phone calls with appellant, appellant would tell her she could “always live with her family” and that there was “no reason for her to still be in placement.” When the social worker spoke to appellant, appellant’s attitude was “a tone of expectation that whatever she thought, that’s the way things ought to be.”
In February of 2010, M.A. was moved to another foster home due to anger issues. His CASA worker observed that, whenever she spoke to M.A. about visits with appellant or when visits occurred, M.A. would have negative behavioral changes, including oppositional behavior, withdrawal, and explosive yelling at his care providers. M.A. did not ask for visits with appellant. According to the social worker, M.A. was routine oriented and visits would disrupt his routine and jeopardize his placement. His caretaker noted that M.A. became more withdrawn and angry a few days before and after visits with appellant. As a result, the social worker recommended that visits between R.A. and M.A. and appellant be found to be detrimental.
At the March 2010 hearing, R.A. was still on runaway status. Although she had been located during a police sweep the week before and placed in a group home, she had run away again an hour later. The social worker for R.A. and M.A. stated that he and the CASA worker agreed that contact with appellant was detrimental. The social worker reasoned that the contact was “negative towards the children where they don’t support each other in placement, or they encourage each other to act out in various different ways, besides their own opposition and defiant tendencies.” The court then modified the visitation order as follows:
“… visitation with [R.A.] and [M.A.] is to be by way of supervised telephone contact at the agency. No in-person visitation while mother [is] incarcerated. And of course this can be reviewed at every hearing to see if that is still meeting the needs of the children. [¶] So I am not suspending visitation. I’m just modifying it so that there can be adequate supervision.”
DISCUSSION
Dependency proceedings generally consist of jurisdiction, disposition, reunification or family maintenance, and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) If a case reaches the permanency planning phase, the juvenile court must conduct a hearing to select and implement an appropriate permanent plan, either adoption, legal guardianship, or long-term foster care for the child, and status review hearings are to be held every six months to determine whether the plan continues to be appropriate. (§ 366.3, subds. (d), (e); San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 884-885.) “A review of a permanent plan hearing is held to fulfill an ‘important purpose of dependency proceedings, ’ which is ‘to provide children with stable, permanent homes.’” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145.) At this stage, the focus has shifted from efforts to maintain biological ties, and the child’s interests in stability outweigh a parent’s interest in the right to custody and companionship of the child. (In re Jasmon O. (1994) 8 Cal.4th 398, 419-420.)
When a case reaches the permanency planning stage and the juvenile court selects a permanent plan of long-term foster care, it must order visitation with the parent unless the court finds by a preponderance of the evidence that visitation would be detrimental to the child. (§ 366.26, subd. (c)(4)(C); Cal. Rules of Court, rule 5.725(d)(7)(E); In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1163, superseded by statute on another ground as stated in In re S.B. (2004) 32 Cal.4th 1287, 1294-1295.)
At a postpermanency planning review hearing, the court “may modify visitation orders at subsequent hearings as the child’s needs require.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002 [sibling visitation]; see also, e.g., In re Kelly D. (2000) 82 Cal.App.4th 433, 438 [“visitation is a proper issue to address at the hearing”].) While section 366.3 does not specify a legal standard to guide the juvenile court in undertaking its review, as a general proposition, “the Legislature has mandated that the juvenile courts consider ‘the best interests of the minors in all deliberations.’” (In re J.C. (2002) 104 Cal.App.4th 984, 992-993.) “The best interests of the child is certainly a factor the court can look to in exercising its discretion to permit or deny visitation.” (In re J.N. (2006) 138 Cal.App.4th 450, 459 [affirming the juvenile court’s discretionary denial of visitation under § 361.5, subd. (f), following bypass of reunification services].) We apply that standard here.
We review a visitation order made in a dependency proceeding for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” (Ibid.) “The abuse of discretion standard warrants that we apply a very high degree of deference to the decision of the juvenile court.” (In re J.N., supra, 138 Cal.App.4th at p. 459.)
Here, we find no abuse of discretion in reducing appellant’s visits to supervised telephone calls. Both R.A. and M.A. have been in numerous placements over the course of their dependency and much of their contact with appellant has been a source of difficulty for the minors. R.A. was three years old when her mother went to prison and nine years old when she was removed from her grandmother’s home and placed in foster care. Since then, R.A. has expressed various wishes concerning visitation and the juvenile court attempted to accommodate her. But visits with appellant and her extended family only destabilized R.A. and were, as described by the social worker, “a source of trauma.” Appellant’s statements to R.A. during unsupervised visits that “she could always live with her family, ” and there was “no reason for her to still be in placement, ” bolstered R.A.’s unhappiness in foster care and aggravated her unwillingness to accept the rules of the foster home, leading to her chronic runaway status.
M.A. was only an infant when his mother went to prison. The CASA worker stated that M.A. was often ambivalent when asked if he wished to visit appellant in prison. Described as “mildly mentally retarded, ” M.A. was, according to the social worker, “oriented to a routine” and did not like the disruption to his routine that the visits created. Foster care providers noted that M.A.’s behavior became more disruptive both before and after visits with appellant, which jeopardized his placements.
Given the continued behavioral problems exhibited by the minors, the juvenile court reasonably could conclude that it was in their best interests to reduce visitation with appellant to supervised telephone calls, a decision which, as stated by the juvenile court, “can be reviewed at every hearing to see if that is still meeting the needs of the children.” We find no abuse of discretion.
DISPOSITION
The juvenile court’s March 2, 2010 visitation order is affirmed.
WE CONCUR: CORNELL, Acting P.J., GOMES, J.