Opinion
B308303
02-17-2021
MARISOL T., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest.
Los Angeles Dependency Lawyers, Inc., Law Office of Martin Lee, Dominika Campbell and Bernadette Reyes for Petitioner. No appearance for Respondent. Rodrigo A. Castro-Silva, Acting County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Real Party in Interest, Los Angeles County Department of Children and Family Services. Children's Law Center and Michael Ono for Minors and Real Parties in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP06244) ORIGINAL PROCEEDINGS in Petition for Extraordinary Writ from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Judge. Petition denied. Los Angeles Dependency Lawyers, Inc., Law Office of Martin Lee, Dominika Campbell and Bernadette Reyes for Petitioner. No appearance for Respondent. Rodrigo A. Castro-Silva, Acting County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Real Party in Interest, Los Angeles County Department of Children and Family Services. Children's Law Center and Michael Ono for Minors and Real Parties in Interest.
Petitioner, Marisol T. (mother), challenges a juvenile court order following a permanency review hearing (Welf. & Inst. Code, § 366.22), wherein the court set a section 366.26 hearing and suspended her visitation after determining that continued visitation would be detrimental to her children. Mother contends that despite the specific statutes specifying the procedures for status review and permanency review hearings (§§ 366.21, 366.22), the court was required sua sponte to file an application or petition to modify its prior order granting her visitation under sections 388 and 385, and to give her notice of the application or petition. Alternatively, mother contends that the court's order suspending visitation is not supported by sufficient evidence. Finding no error, we deny the petition.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2018, the Los Angeles County Department of Family and Children Services (DCFS) filed a section 300 petition on behalf of mother's children, Alberto T. (born Aug. 2005) and Adrian T. (born Aug. 2007). The petition was based on mother's abuse of narcotics and an incident in which mother brandished a knife and assaulted her live-in companion, Adriana S., in the presence of Adrian. In a detention report, Adrian stated that he no longer wanted to see mother and enjoyed living with his "stepmother," Adriana. Following mother's arrest, Alberto reported that his home life was "more peaceful" because mother used to hit him and Adrian.
The court sustained the petition on September 28, 2018, detained the children from mother, and granted a restraining order protecting the children and Adriana from mother, with the exception that mother could have monitored visits with the children. The court left the children in the care of Adriana.
The court subsequently issued a three-year restraining order to expire on October 19, 2021, protecting the children against mother.
In a jurisdiction/disposition report, Adriana informed a social worker that she and mother had engaged in "many incidents of domestic violence" during their 16-year relationship. DCFS assessed the children as high risk for future abuse based on mother's failure to make any effort to visit with the children, failure to engage in recommended services, and failure to submit to random drug and alcohol testing. At the adjudication hearing on January 22, 2019, the court sustained the allegations, declared the children to be dependents of the court under section 300, subdivisions (a) and (b), and ordered monitored visitation and reunification for mother.
Mother's case plan included a full drug and alcohol program with aftercare; random or on demand drug and alcohol testing; a 12-step program; a 26-week domestic violence program for perpetrators; a parenting class; and individual counsel to address case issues that included anger management.
In a July 2019 status review report, DCFS reported that mother appeared well-bonded to the children whenever she attended visits. Despite the children reporting that they enjoyed visits with mother, DCFS did not liberalize visitation due to the restraining order and mother's minimal progress with her case plan.
At the six-month review hearing on July 23, 2019, the court found mother to be in partial compliance with her case plan, continued jurisdiction over the children, and ordered DCFS to assist mother with coordinating visits with the children. The court set a permanency hearing for January 21, 2020.
In a January 2020 status review report, DCFS reported that due to a recent relapse, mother had enrolled in a residential substance abuse program in October 2019. The children's therapist, who began working with Alberto in December 2018 and Adrian in September 2019, reported that Adrian had not made progress verbalizing his feelings towards the violence he had witnessed. Due to mother's inconsistent visitation, Adrian stopped visiting with mother around November 2019. A social worker devised a plan to ensure that visits remained consistent, but informed mother that family therapy could only be facilitated when it was deemed appropriate.
At the 12-month review hearing on January 21, 2020, the court found mother to be in partial compliance with her case plan, continued reunification services, and set a permanency review hearing for April 7, 2020.
In an April 2020 status review report, both children reported that they no longer wanted to visit with or talk to mother. After Alberto's last visit with mother on January 15, 2020, the child personally requested additional therapy because he "started to feel like he doesn't want to do anything except stay at home." During a March 2020 interview, Alberto reported that he was "stressed out" and "terrified" at the thought of reunifying with mother. In response to a social worker questioning the child's willingness to participate in family sessions with mother, Alberto stated that he was not "ready to share his feelings with her." Adrian also reported that he did not want to reunify with mother, and was fearful that she would continue to use drugs, drink alcohol, and hit him and his brother with objects if the children returned to her care. DCFS attached a March 2020 progress report from the children's therapist, who reported that she could not facilitate family therapy despite being asked to do so because the children felt "triggered when they see" mother.
Alberto's autism diagnosis rendered him eligible for services. He attended school under an Individualized Education Plan and received special education support.
DCFS reported that while mother continued to make progress in her case plan, it recommended terminating her reunification services based on the lack of visitation with the children and the absence of a strong bond with the children. Due to the coronavirus pandemic, the juvenile court continued the permanency review hearing to September 8, 2020.
Mother completed a parenting program in January 2020, residential treatment program in February 2020, and was scheduled to begin aftercare and a 26-week domestic violence program.
In a September 2020 status review report, DCFS reported that Alberto continued to recall prior instances when mother yelled at and hit him and Adrian. Adrian also recalled "everything that [mother] used to do to them," including abusing drugs and "hit[ting them] again and again." The children's therapist reported that both children had difficulty with transitions and changes in routine. When the children were informed that mother secured employment in the hopes of seeing them, the children again felt triggered and fearful that mother would stop by their home unexpectedly. The therapist also noted that Adrian appeared to have anxious and irritable behaviors, and difficulty sleeping. She concluded that conjoint therapy might cause the children "further dysregulation and potential shut down."
In attached progress reports dated August 18, 2020, the therapist reported that Alberto continued to work on "the barriers and challenges that arise out of the possibility of returning under his biological mother's care." The therapist also reported that despite seeing progress by Adrian, she was "concerned for possible regression" if the child's living arrangement were changed.
Mother continued to make progress in her case plan and consistently drug tested with negative results. However, DCFS continued to recommend terminating reunification services.
In its notice to mother of the permanency review hearing set for September 8, 2020, DCFS informed mother that it would be recommending terminating reunification services and setting a section 366.26 hearing. The notice also apprised mother that the court may "remove custody from the parents" and "make orders regarding placement, visitation and services." At the request of mother's counsel, the court set the matter for a contested permanency review hearing on October 21, 2020. The court ordered "[c]ounsel to notice their respective clients."
DCFS provided mother with the same written notice for the permanency review hearing initially set for April 7, 2020.
In last minute informations for the court filed October 14 and 21, 2020, DCFS reported Alberto's continued wish not to visit or have contact with mother. Alberto believed that future contact could place him in a situation where he would have to physically defend himself from mother. Adrian also expressed concern about forced contact with mother, and stated there was a "big possibility that she will start to hit them again like she has before." In her own interview, mother stated that she understood that she could not pressure the children into visiting with her.
In two October 2020 progress reports, the children's therapist reported that Adrian had regressed, and Alberto continued to exhibit worrisome and anxious behavior whenever he spoke about mother.
In response to DCFS's recommendation to terminate reunification services at the October 21, 2020 permanency review hearing, mother's counsel argued that DCFS did not provide consistent visitation and was to blame for the "lack of bond between the mother and the children." Counsel for the children responded that mother made no overtures to the social worker to enforce her visits during the 10-month period of no contact, and did not bring the issue to the court's attention. Children's counsel requested a finding of detriment in the event the court terminated reunification services.
The court found that despite DCFS providing reasonable reunification services, the children continued to experience trauma at the thought of visiting with mother. The court terminated reunification services and set a section 366.26 hearing. Based on the children's "extreme anxiety and depression," the court terminated mother's visitation based on a finding of detriment, and ordered DCFS to "continue to assess the situation to see whether visits can safely occur in a therapeutic setting." Mother's counsel objected "to finding that detriment exist[s] today without a prior notice[d] hearing. [¶] Submitted."
Mother filed a timely notice of intent to file a writ petition.
DISCUSSION
Mother challenges the court's order suspending visitation at the permanency review hearing. She first contends that the juvenile court could not have suspended visitation because it did not file and provide her with advance notice of a section 388 petition or section 385 application to modify its prior order granting her monitored visitation. Alternatively, mother contends that the order suspending visitation is not supported by sufficient evidence that continued visitation would be detrimental to the children.
1. Governing Law
"'We start with the fundamental premise that the underlying purpose of dependency law is to protect the welfare and best interests of the dependent child.' [Citation.]" (Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 672 (Serena M.).) To this end, when the juvenile court obtains jurisdiction, it may order reunification services to which visitation is deemed a "critical component." (In re T.G. (2010) 188 Cal.App.4th 687, 696; In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1113-1114.) In doing so, the juvenile court maintains its focus on the best interests of the child "'"and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm . . . ."' [Citation.]" (Serena M., supra, at p. 673; see § 362.1, subd. (a)(1)(B).)
To ensure that the children's well-being is protected, Article 10 of the dependency statutes provides for periodic review hearings conducted at six-month intervals from the date of the original dispositional hearing until the court terminates parental rights. (§ 366, subd. (a)(1).) When conducting the periodic review hearings for children who are not placed in parental custody, the court must review and consider the status review reports regarding the parent's progress in completing his or her case plan, and the nature and quality of visitation and contact with the children. (§ 366.21, subds. (c), (e)(1) [six-month hearing]; (f)(1)(C) [12-month hearing]; § 366.22, subd. (a)(1) [18-month hearing]; § 366.25 [24-month hearing].)
At each status review or permanency review hearing held during the reunification period, the court must consider the return of the child to the parent's custody, which is required unless the department proves that the return would create a substantial risk of detriment to the child's safety, protection, or well-being. (§§ 366.21, subds. (e)(1)-(f)(1), 366.22, subd. (a), 366.25, subd. (a).)
At the 18-month permanency review hearing, if the court finds that that returning a child to his or her parent would create a substantial risk for the child, it may grant the parent "a limited right" to a continuance of up to six months in certain circumstances (none of which apply here). (§ 366.22, subd. (b).) If the limited right does not apply and the court finds that returning a child to his or her parent would create a substantial risk for a child, then the court must terminate reunification services and order a section 366.26 hearing to be held within 120 days. (§ 366.22, subd. (a)(3).) In setting a 366.26 hearing, the court "shall continue to permit the parent . . . to visit the child unless it finds that visitation would be detrimental to the child." (Ibid.)
For the limited right to a continuance to apply, the court must find there is a substantial probability that the child will be returned to the physical custody of his or her parent, which requires, inter alia, that the parent consistently and regularly visited with the child. (§ 366.22, subd. (b)(1).)
For every periodic review hearing "pursuant to Section 366.21, 366.22, or 366.25," the social worker or probation officer must give notice of the review hearings to, inter alia, the parent(s), any sibling who is the subject of the hearing, and in the case of a child removed from the custody of his or her parent, the current caregiver of the child. (§ 293, subds. (a)(1)-(9).) The notice "shall contain a statement regarding the nature of the hearing to be held and any change in the custody or status of the child being recommended by the supervising agency." (§ 293, subd. (d).) 2. The Court Was Not Required to File, or Provide Mother with Notice of, an Application or Petition to Modify a Prior Order
Notwithstanding the foregoing procedures of Article 10 of the dependency statutes specifically applicable to periodic review hearings, mother contends that the additional provisions of sections 385, 386, and 388, which appear in Article 12, also apply whenever the court modifies or terminates a prior visitation order, and thus that they apply to the court's termination of her visitation at the October 2020 permanency review hearing. We disagree.
Section 385 provides that the juvenile court may change, modify, or set aside any "order made by the court in the case of any person subject to its jurisdiction . . . at any time . . . subject to such procedural requirements as are imposed by this article." Section 388 provides a similar mechanism for the parties to a dependency action to seek modification of a prior order. (See § 388, subd. (a)(1) ["[a]ny parent or other person having an interest in a child" may petition based on changed circumstances "to change, modify, or set aside any order of court previously made"].) The key to mother's contention is section 386, which provides that prior to any order "changing, modifying, or setting aside a previous order of the juvenile court," the judge or clerk of the court must provide "prior notice of the application therefor" to "the social worker and to the child's counsel of record, or, if there is no counsel of record, to the child and his or her parent or guardian."
To the extent mother contends that she was entitled to notice of an application by the court to change the visitation order, the contention makes no sense. In interpreting a statute, we first look to the words of the statutes, giving them their usual and ordinary meaning. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594-595 (Katie V.).) We have no power to "'"rewrite the statute so as to make it conform to a presumed intention which is not expressed."' [Citation.]" (Id. at p. 595.)
Here, even if an application by the court were necessary (as we explain below, it was not), section 386 requires notice "to the social worker and to the child's counsel of record, or, if there is no counsel of record, to the child and his or her parent or guardian." The children in this case were represented by counsel. Thus, by the plain language of section 386, mother was not entitled to notice of any such application. (See Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111, 111, fn. 16 ["section 386 mandates notice to a parent only when the child is not represented by counsel"].)
Moreover, to the extent that mother contends that the court was required to file an application to change the visitation order, she ignores the plain language of sections 366.21 and 366.22, which specify the issues to be adjudicated during a status review and permanency review hearing. During such hearings, the court must determine, inter alia, whether to continue reunification services or set a section 366.26 hearing. (§§ 366.21, subds. (e)(1)-(e)(8), (f)(1), (g)(1), (g)(4); 366.22, subds. (a)(1), (a)(3), (b).) If the court orders a section 366.26 hearing, it "shall continue to permit the parent . . . to visit the child unless it finds that visitation would be detrimental to the child." (§§ 366.21, subd. (h); 366.22, subd. (a)(3).) "At such hearings, the court has the statutory power to order that reunification services, including visitation, be offered, modified, continued, or, under narrowly limited circumstances, terminated. [Citation.] Arguably these statutory provisions constitute sufficient notice that the juvenile court may modify its previous orders at a section 366.21 [or 366.22] review hearing." (In re Natasha A. (1996) 42 Cal.App.4th 28, 35.) Indeed, mother was provided advance notice under section 293 of the permanency review hearings in which she was informed that the court could make "orders regarding placement, visitation and services."
Furthermore, the statutes providing for periodic review hearings (§§ 366.21, 366.22) do not contain any of the additional pleading, proof (§§ 385, 388), or notice (§ 386) requirements suggested by mother. The absence of these requirements suggests a legislative intent not to impose them. (Katie V., supra, 130 Cal.App.4th at p. 595.) Also, incorporating these additional requirements would render redundant the provisions of sections 293, 366.21, and 366.22 that themselves provide the advance notice and procedures by which periodic review hearings are held. (See In re D.S. (2012) 207 Cal.App.4th 1088, 1097.) Thus, we conclude that the provisions of sections 385, 386, and 388 do not apply to periodic review hearings.
3. The Court Properly Suspended Visitation
Mother alternatively challenges the court's order suspending visitation based on the sufficiency of the evidence to support a finding of detriment. (See § 366.22, subd. (a)(3).)
Mother's second contention is limited to the court's order suspending visitation. Mother does not purport to challenge the court's order terminating reunification services based on a "substantial risk of detriment" to the safety or well-being of the children. (See § 366.22, subd. (a)(1).)
Courts have adhered to differing standards of review from status review and permanency review orders terminating visitation. (Compare In re Mark L. (2001) 94 Cal.App.4th 573, 581 (Mark L.) [same], disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989; In re Julie M. (1999) 69 Cal.App.4th 41, 43, 48-49 (Julie M.) [abuse of discretion].) We need not address the issue here, as we would affirm under any standard of review.
"'Detriment is a familiar standard in child welfare determinations; but . . . is at best a nebulous standard that depends on the context of the inquiry.'" (In re A.J. (2015) 239 Cal.App.4th 154, 160.) The risk of detriment "'must be substantial, such that [the proposed action] represents some danger to the child's physical or emotional well-being.' [Citation.]" (Ibid.; accord, Julie M., supra, 69 Cal.App.4th at p. 50 [court must focus on the best interest of the children and on "the possibility of adverse psychological consequences of an unwanted visit" with the parent]; see also § 362.1, subd. (a)(1)(B).)
In this regard, the court "may appropriately rely upon an evaluation by treating therapists of the children's emotional condition and evolving needs. [Citation.]" (Julie M., supra, 69 Cal.App.4th at p. 51.) The "child's aversion to visiting an abusive parent may be a 'dominant' factor in administering visitation, but it [cannot] be the sole factor." (Ibid.)
The record in this case amply supports the suspension of visitation. At the time of the permanency review hearing, the children had not lived with mother for over two years, and had not visited with her for approximately one year. From the filing of the detention report, the children recalled prior instances of mother physically abusing them or using drugs or alcohol in their presence. The abuse to which they were subjected and had observed prompted a permanent restraining and years-long therapy during which the children exhibited anxious, worrisome, and irritable behavior. Despite DCFS's attempts at proposing family or conjoint therapy, both children continued to feel "triggered" at the thought of visiting with mother. The children's therapist opined that the children's behaviors could be further dysregulated to the point of a "potential shut down" if they were forced to participate in conjoint therapy with mother. Thus, sufficient evidence of detriment supported the court's order suspending visitation. (Compare Mark L., supra, 94 Cal.App.4th at p. 581; In re T.M. (2016) 4 Cal.App.5th 1214, 1220.)
DISPOSITION
Mother's petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h)(1).) The prior order staying the section 366.26 hearing set for February 17, 2021, is discharged and our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.