Opinion
H047986
07-27-2021
In re U.C. et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. L.B., Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. 18JD025160, 18JD025161
ELIA, ACTING P.J.
L.B. (mother) challenges the juvenile court's decision to require supervised visitation after the dismissal of the court's dependency jurisdiction over her children, H.C. and U.C. She claims that the court's visitation order was premised on the court's use of an “incorrect test” and is not supported by substantial evidence. We reject her claims and affirm the court's order.
I. BACKGROUND
C.C. (father) and mother are the parents of H.C. and U.C. The relationship between father and mother ended in 2014, and they subsequently had frequent conflicts about their custody time with the children. Numerous referrals to the Santa Clara County Department of Family and Children's Services (the Department) followed, in which they made allegations and counter allegations of abuse.
In April 2018, the children were taken into protective custody after nine-year-old U.C. suffered a facial injury while in mother's care. U.C. was also found to be experiencing emotional trauma, characterized by “frequent violent tantrums” during which he would break things and intentionally harm himself. U.C. was “placed on a psychiatric hold.” Mother denied that U.C. had any problems. Six-year-old H.C. was suffering from “extreme emotional distress.”
The Department filed petitions alleging failure to protect (Welf. & Inst. Code, § 300, subd. (b)(1)), serious emotional damage (§ 300, subd. (c)), and, as to H.C., abuse of sibling (§ 300, subd. (j)). The juvenile court initially detained the children, but they were soon released to mother due to their “emotional deterioration in care.” At the June 2018 jurisdictional hearing, both mother and father submitted on the social worker's reports, and the court sustained amended petitions.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The Department's dispositional report identified the primary reason for intervention as the parents' “high-conflict relationship and custody battle which has led to the children feeling torn in their loyalties to their parents and impaired their ability to self-regulate, cope and express themselves constructively.” One concern was that neither child was able to sleep alone, which appeared to be related to mother's “co-sleeping” with them. The social worker expressed concern about “the mother and children's codependency.” U.C. in particular “demonstrated serious emotional disturbance.” He was ultimately diagnosed with “Acute Stress Disorder, ” “[g]eneralized anxiety disorder, ” “Posttraumatic Stress Disorder, ” and “Major Depressive Disorder.” Although mother claimed that the children told her that they did not want to visit father, the children told the social worker that they wished to spend more time with father. The Department recommended family maintenance services for both parents so that they could learn to shield the children from their hostility, practice “co-parenting, ” and “create consistency between the homes.”
At the July 2018 disposition hearing, the court accepted the Department's recommendations, declared the children dependents, and ordered family maintenance services for both parents. The parents continued to share custody, with the children's primary residence being with mother. The Department's services for the parents focused on coparenting and diminishing conflict between the parents.
By early 2019, the children were spending increased time with father, including overnight visits. However, the children had difficulty with transitions between the parents. Mother continued to sleep with both children in the same bed even though U.C. was 10 years old and H.C. was seven years old. Both children had trouble sleeping. The parents continued to express anger towards each other and engage in “negative communication.” And the children continued to experience “emotional distress.”
In February 2019, the court continued family maintenance services to the parents. In April 2019, mother told the social worker that she “didn't need any help” with her parenting and rejected offers of assistance. In June 2019, mother told father that he could not see the children anymore, and she proceeded to obstruct father's visitation. He was able to see the children again only when he started therapeutic visits in July 2019. Father successfully completed his therapeutic sessions with the children, and the therapist saw no need for further sessions. But the parents were unable to agree on a timeshare plan. In September 2019, the children had a court-ordered, extended, weeklong visit with father. During this visit, mother made statements to the children that upset them, and she thereafter continued to make statements to them that made them uncomfortable.
Until October 2019, the Department had favored continuing family maintenance services to both parents. However, mother continued to actively oppose and attempt to sabotage visits between the children and father. She rejected a “50/50 custody” timeshare schedule that had been proposed by the Department based on the children's desires. When the Department attempted to implement a timeshare schedule, mother kept the children home from school to preclude father from picking them up from school. As a result, U.C.'s schoolwork suffered. U.C. also reported stomach pain, which was determined to be likely “psychosomatic stress” caused by the conflict between the parents. H.C. had been diagnosed with “Separation Anxiety Disorder.” The social worker was concerned about “the long term trauma [to the children] of further exposure to conflict between the parents.” At the same time, father was making progress on having the children sleep in their own room.
In mid-October 2019, the Department filed a section 387 supplemental petition alleging that mother was causing emotional damage to the children, and it sought removal of the children from her custody. The social worker reported: “Despite extensive supportive services over nearly eighteen months, the mother has limited insight into how her language and behaviors negatively impact the children.” Although the Department had “tried a lot of services, ” mother was unable to provide “emotional stability” for the children, which was “leading to self-harm.” The children were taken into protective custody, temporarily removed from mother's custody, and placed in father's sole custody. Mother was granted supervised visitation twice a week for two hours each time. She was not permitted phone contact with the children, and her text messages with the children were supervised by father.
During a supervised visit on October 15, 2019, mother “made numerous destabilizing comments” to the children, which caused U.C. to become “extremely emotional” and engage in “self-harm behaviors.” H.C. also had “a difficult time emotionally during this visit.” After this visit, U.C. texted mother and told her that he would prefer to “FaceTime with her rather than participate in a visit because the ‘visit is too emotional.' ”
U.C.'s stomach pains disappeared after he stopped having unsupervised time with mother, and both children's development improved. They began doing well in school, sleeping independently for the first time, and taking pride in their appearance. H.C. no longer suffered from separation anxiety. U.C. continued to have some emotional difficulty, but he was learning to utilize “coping skills” in father's home and was no longer engaging in self-harm.
In November 2019, mother requested a contested hearing on the supplemental petition, which was eventually set for February 2020. The children continued to have one supervised visit and one therapeutic visit with mother each week. U.C. often had tantrums after visits with mother. Mother tended to engage in behaviors that triggered U.C. She “lack[ed] insight on how her behaviors create anxiety in the children, ” and mother said that she was “not aware of what changes to make because she has not been informed, despite several conversations with providers.” Mother's lack of insight was notable during a visit in January 2020, when she proceeded to videotape U.C. while he was having “a melt down.” At a January 24, 2020 visit, U.C., who had been in a happy, relaxed mood before the visit, immediately became unhappy after encountering mother. When he became very upset and sobbed, mother was not able to calm him, and the social worker had to intervene.
Mother continued to demonstrate an “inability to gain insight into her actions and how it affects her children and their mental health.” She talked to the children about adult topics, such as her disapproval of their immunizations, and she continued to interrogate the children, send them inappropriate messages, and make false promises to them. These communications made it necessary for father or the therapeutic supervisor to intervene when mother's conduct caused U.C. to become anxious. U.C. continued to become upset during his visits with mother in February 2020. Mother appeared to be unable to implement what she had learned in classes and services. She was unwilling to “parallel parent, ” and she had not changed her behaviors that “trigger the children.”
The contested hearing on the supplemental petition and the family maintenance review were combined, began in February 2020, and extended into March 2020. The Department's recommendation was that the children be removed from mother and the case dismissed with family court orders limiting mother to supervised visitation. The social worker testified that she believed that mother's visits needed to be supervised because “the mother needs to focus on not injecting herself into or making comments to the kids about... areas of concern, ” which was still happening at visits in late February 2020. Although mother was “moving in the right direction, ” there was “still more work she needs to do about just not trying to make the kids have a tendency one way or the other between the parents.” Mother continued to influence the children to display “split loyalty.” During a recent visit, mother had told U.C. that he would “soon” see something at her home, which suggested to him that he would be returning to her custody and caused him to be anxious.
Mother had suggested several friends as potential visitation supervisors. The Department's recommendation was that mother's friend, Danita Morales, supervise the visits. Morales had a “child welfare” background, which made her an appropriate “quasi professional” visitation supervisor.
Mother testified at the contested hearing that she had learned a lot from the classes she had taken and the providers she had dealt with. She said she had completed a parallel parenting class in January 2020. Mother had also seen a therapist eight times after the children were removed to learn better communication skills. She testified that she had learned a lot about “watching my tone” and being positive rather than negative. Mother believed that “past incidents” were the result of her being “overprotective.”
Mother's therapist did not testify at the hearing, but a letter from him was admitted into evidence. Although he had never met the children, he asserted that mother had been learning about the impact of her conduct.
Mother's expert testified at the contested hearing that she had no concerns about mother's parenting and that mother posed no imminent risk to the children, but the expert knew only what mother had told her and what she had read in reports. She had not spoken to the children or their therapists or observed any visits. The expert assumed that what mother had told her was true. Consequently, the expert did not learn until midway through the hearing that the visitation supervisors had continued to need to intervene at recent visits when mother made inappropriate comments to the children. When she was made aware of this information, she testified that it did not change her opinion that mother was “emotionally attuned to her children in the visits.”
After the contested hearing, the court issued a written order sustaining the petition and dismissing the case with family court orders. The court found that the children had “suffered great emotional turmoil while in the mother's care.” Despite over a year of services, it had proved impossible to “stabilize” the children in mother's care, and the children's emotional health did not improve until they were removed from mother's custody and placed with father. The court found that removal was necessary because mother continued “interrogating the children, exposing them to adult information, and putting anxiety-inducing pressure on them.” The court identified numerous instances in December 2019 and January 2020 supervised visits, recounted in the visitation logs, when mother engaged in such behavior, which, in the court's view, “demonstrates that she has not yet shown the kind of change in behavior that is needed to ensure the children's emotional health” when she is with them.
The court adopted the Department's recommended family court custody and visitation orders. It awarded the parents joint legal custody and father full physical custody of the children. Mother's visitation was limited to two hours, twice a week, either professionally supervised, supervised by Danita Morales (mother's friend), or supervised by a person agreed to by both mother and father. Mother was also permitted supervised text messages with the children.
The court explained why it found that supervision was necessary for mother's visits: “Supervised visitation is appropriate given that mother is only now ready to graduate from therapeutic visits, she still needs to be redirected during visits, and given the risk of continuing emotional dysregulation for the children.” It also found that supervised visitation was necessary due to “mother's gatekeeping behaviors and negative feelings toward father and his wife.” The court pointed out in its order that “custody orders are not permanent” and could be “amended to reflect the evolving needs and progress of the parties.” Mother timely filed a notice of appeal.
II. DISCUSSION
Mother contends that the juvenile court's supervised visitation order “applied an incorrect test and was not supported by substantial evidence.”
“ ‘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.'” (In re Chantal S. (1996) 13 Cal.4th 196, 203 (Chantal); § 362.4.) “[T]here are situations in which a juvenile court may reasonably determine that continued supervision of the minor as a dependent child is not necessary for the child's protection, and at the same time conclude that conditions on visitation are necessary to minimize, if not eliminate, the danger that visits might subject the minor to the same risk of physical abuse or emotional harm that previously led to the dependency adjudication.” (Chantal, supra, at p. 204.) The juvenile court makes these custody and visitation determinations “based on the best interests of the child without any preferences or presumptions.” (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)
Mother concedes that visitation orders are ordinarily reviewed for abuse of discretion. However, she claims that de novo review is appropriate here because the juvenile court used “an incorrect test.” Her “incorrect test” claim is premised on her contention that the juvenile court “essentially applied a ‘changing but not changed' analysis concerning section 388 petitions.”
The record contains no support for mother's contention. The juvenile court explicitly focused on the risks to the children's emotional health and identified mother's need for redirection and inability to deal with the children's emotional difficulties during visits as the primary reasons why supervised visitation was warranted. The court did not mention section 388, and its reasons did not rely explicitly or implicitly on any standard other than the best interests of the children.
Mother claims that the Department had the “burden of proof that restriction on visitation was necessary to protect the children.” She cites several inapposite cases. In re Aubrey T. (2020) 48 Cal.App.5th 316 concerned a challenge to the termination of parental rights on the ground of abandonment. (Id. at p. 325.) It had nothing to do with a visitation order issued in connection with the dismissal of dependency jurisdiction. (Id. at p. 329.) In re C.C. (2009) 172 Cal.App.4th 1481 (C.C.) was a challenge to the termination of visitation during an ongoing dependency case. The parent was not challenging a section 362.4 visitation order. (C.C., supra, at pp. 1487-1488.) Serena M. v. Superior Court (2020) 52 Cal.App.5th 659 was a challenge to the termination of reunification services after the parent had been denied visitation throughout the dependency proceedings. (Id. at pp. 671-672.) It did not concern an order restricting visitation upon dismissal of dependency jurisdiction. None of these cases advances mother's claims.
Mother maintains that the court's visitation order is infirm because the social worker testified that supervised visitation was recommended based on the Department's “internal policy of stepping down levels of visitation.” She claims that the social worker's testimony about her concerns “does not rise to the level of jeopardizing the physical or emotional health of the child” because it was “mere speculation.”
Mother's arguments are at odds with the record and therefore lack merit. The Department presented substantial evidence at the hearing that, despite 18 months of services, mother still lacked the ability to avoid harming the emotional health of the children during visits without assistance. Her inadequacies had been clearly demonstrated at her most recent visits with the children when she repeatedly triggered U.C.'s anxiety and could not calm him without assistance from the visitation supervisors. No speculation is necessary to identify the risks that mother posed to the children's emotional health under these circumstances. Mother's insistence that “[r]ecent visits had gone well” is amply contradicted by the record.
Substantial evidence supports the juvenile court's visitation order, and we find no abuse of discretion in the court's decision to require mother's visits with the children to be supervised.
III. DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, J.DANNER, J.