Opinion
D059998
10-06-2011
P.D. et al., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Garry G. Haehnle, Judge. Petitions denied; request for stay denied.
(San Diego County Super. Ct. No. SJ12304A-C)
P.D. and T.I. seek writ review of juvenile court orders terminating reunification services regarding their children, Malia I. and Noah I., (together, the children) and setting a Welfare and Institutions Code section 366.26 hearing. P.D. contends the court unlawfully delegated authority regarding visitation to a foster care agency and violated her due process rights by suspending visitation without requiring the filing of a section 388 petition to provide her with notice and an opportunity to be heard. She also asserts because visits were suspended she did not receive reasonable reunification services. T.I. joins and adopts P.D.'s arguments to the extent they inure to his benefit. We deny the petitions.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Diego County Health and Human Services Agency (the Agency) in January 2010 when P.D. caused a disturbance in a hospital lobby, claiming that when she had earlier been hospitalized there, physicians had implanted something inside her that was controlling her and she could feel it moving inside her. The Agency then learned there was an active criminal restraining order against P.D. as a result of her having beaten the children's then 14-year-old half sister,
Nina D., in March 2009. Nina said P.D. beat her, pulled her hair, punched her in the face, kicked her in the stomach, threw rocks at her and put dirt in her mouth because Nina did not want to go home with P.D., but wanted to stay with a maternal aunt who lived next door. Nina said P.D. had two personalities. One personality told Nina she loved her; the other said she hated Nina and everyone was going to hell. Nina said P.D. complained about having a microchip implanted in her body and believed her children were cyborgs. P.D. denied having mental health issues or that she had said what Nina had reported.
Nina is not a part of this writ petition.
On January 27, 2010, the Agency petitioned on behalf of Nina, three-year-old Malia and one-year-old Noah. The children were detained together in foster care, but when P.D. requested they be in a Christian foster home where they could attend church every Sunday, Nina moved to the home of Clara C., and Malia and Noah returned to the Polinsky Children's Center (Polinsky).
T.I. requested placement of the children. Nina accused him of hitting and punching her in the past and of touching her inappropriately, but he denied doing so.
The social worker provided P.D. with referrals for services, including a psychological evaluation, counseling, parenting education and anger management. Weekly supervised visits were provided for both parents. T.I.'s case plan included parenting classes, but he did not attend and he did not call to arrange visits. In February 2010 P.D. insisted on having a different social worker because she believed the case was not being handled properly and the social worker had lied to her. Nina liked living with Clara, but P.D. wanted her to be moved and threatened to get Clara into trouble.
At the jurisdictional and dispositional hearing in June 2010, the court found the allegations of the amended petitions to be true and declared the children dependents of the court. It ordered P.D. and T.I. to participate in their case plans, added a neuro-psychological evaluation to P.D.'s case plan and gave the Agency discretion to expand her visitation with concurrence of the children's counsel.
The psychologist who conducted a psychological evaluation of P.D. found she had symptoms of mental disorders that needed to be ruled out, including schizophrenia and mood, delusional and dissociative identity disorders. The neuro-psychological evaluation reported her personality inventory scores did not suggest significant psychopathology, but noted she tended to respond in a defensive manner, which may result in an underestimation of psychopathology.
P.D.'s therapist diagnosed her with schizophrenia and said her visits with the children should be closely supervised to ensure the children's safety. He said P.D. was not willing to see a psychiatrist. P.D. soon revoked her medical release authorization and requested a new therapist. In January 2011 she began therapy with a new therapist. He said she was argumentative, but he did not detect any obvious signs of psychosis. He said she blamed everyone else for her situation, especially Nina.
P.D. visited the children twice each week, one visit supervised by a visitation center and the other by the Agency. In January the visitation center stopped supervising visits because P.D. had cancelled so many of them.
Over the 17 months of the dependency case, Malia and Noah moved placements 11 times. Between January and August 2010, they were in four foster homes and had two temporary stays at Polinsky. Some moves were required because of the children's problem behaviors and some by difficulties P.D. and the maternal grandmother caused with the foster parents. In August 2010 Malia and Noah were placed with a maternal aunt, Victoria D., who had moved from New York to care for them. Malia and Victoria began Parent-Child Intensive Therapy, but P.D. refused to take part. Noah participated in therapy for developmental delays, where he made good progress. P.D. had appropriate visits with the children, but sometimes appeared detached and uninterested.
Tragically, on January 15, 2011, police found Victoria unconscious from a heroin overdose. This experience traumatized both children. For weeks four-year-old Malia talked about how Victoria would not wake up and police had taken her (Malia) away in a "car cage." Malia and Noah were then placed with M.M., who first reported the children had adjusted well to her home, but in March asked that they be removed from her care. Noah was defiant and aggressive and had limited speech, poor impulse control and was afraid to be potty trained. Malia continued to have symptoms from the trauma she had experienced. The children returned to Polinsky.
On May 17, 2011, Malia and Noah were placed in separate foster homes through the San Diego Center for Children's Special Families Multidimensional Treatment Foster Care Program (Treatment Foster Care), where it was hoped their special needs could be met. When the children entered Treatment Foster Care, according to this program's policy, visitation was suspended for six to eight weeks to allow them to stabilize in their new therapeutic placements and begin services.
On May 31, 2011, P.D. and T.I. requested the court schedule visitation immediately. The court declined to make this order.
At the hearing on June 14, 2011, the social worker testified that Treatment Foster Care had suspended visitation for six to eight weeks to allow Malia and Noah to adjust and undergo therapeutic treatment. She said the children needed to be stabilized emotionally in intensive therapy and any changes to their routines would be disruptive. It was estimated that visits would resume on or about July 11. The social worker reported P.D. had completed parenting and anger management courses and engaged in therapy, but she had not fully addressed her mental health issues or acknowledged physically abusing Nina. T.I. had begun services in February 2011 and since that time he had completed parenting classes and anger management and had been in therapy. The social worker recommended terminating services.
After considering the evidence and argument by counsel, the court found the suspension of visitation was not unreasonable under the circumstances. It ordered visitation suspended. It found P.D. and T.I. had been offered or provided reasonable services, but they had not made substantive progress with the provisions of their case plans and there was no substantial probability the children would be returned to parental custody within six months. It terminated services and set a section 366.26 hearing to select and implement permanent plans.
P.D. and T.I. petition for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
P.D. contends the court violated her due process rights and the separation of powers doctrine by improperly delegating its authority regarding visitation and by not requiring the filing of a section 388 petition before visits were suspended. She also asserts she was not provided with reasonable reunification services because she did not receive any visitation for nearly eight weeks.
A. Legal Authority
A parent's right to the care and custody of his or her children and his or her interest in visitation is a serious, major concern in dependency proceedings. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) It is not the only consideration, however. Also of paramount importance is the child's best interests and well-being. (Id. at pp. 48-51.) Visitation "shall be as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) However, "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).) The juvenile court holds broad discretion in determining the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.' " (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
A court may not delegate authority to a social services agency to determine whether visitation will occur. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686.) Such delegation would be a violation of the separation of powers doctrine. (In re Julie M., supra, 69 Cal.App.4th at p. 49.) However, a social services agency in consultation with mental health professionals working with it should determine when visitation is appropriate and consistent with the child's best interests. (In re James R. (2007) 153 Cal.App.4th 413, 437.) It is not an abuse of discretion to delegate to another the responsibility to determine the time, place and manner of visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373.)
In determining the sufficiency of reunification services the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B. The Court did not Improperly Delegate Authority over Visitation
The children were placed with the Treatment Foster Care program after they had endured 10 moves in 17 months. Treatment Foster Care is designed to stabilize children in the foster care system who have had multiple foster care placements because of severe behavioral problems. One aspect of the Treatment Foster Care program is to temporarily suspend visitation so that a child's environment is controlled to consist only of consistent, positive and reinforcing environments. Here, it was necessary to stabilize Malia and Noah in their placements since they had been moved numerous times and were exhibiting severe behavioral and emotional problems. They required a controlled environment free from outside distractions and no changes to their routine or schedules. The mental health professionals at Treatment Foster Care determined that for them to adjust to their new placements it was necessary to suspend all visitation for six to eight weeks. The court assented to this arrangement, stating:
We grant the Agency's motion to augment the record with additional information regarding Malia's and Noah's participation in Treatment Foster Care and the reinstatement of visitation in July 2011.
"To get them in there and these people say, look, this is the only way we can stabilize these children and hopefully secure them a placement . . . and one of the components of that is there can be no outside visitors during the first initial weeks they're in the program, I find nothing unreasonable about that."
The court did not improperly delegate authority to determine whether there would be visitation. It had ordered supervised visitation and for 16 months it oversaw the time place and manner of visitation. When the children entered Treatment Foster Care, the court's order was not changed, but under the program's policy, it was determined that for the safety of the children's mental and emotional health, visitation would be suspended for six to eight weeks while the children adjusted to their new placements.
The court learned of the suspension at the May 31 hearing. At that hearing, it decided it needed to learn more about Treatment Foster Care before making a specific order. After further information was provided two weeks later at the June 14 hearing, it determined the suspension of visitation was reasonable. P.D. has not shown the court improperly delegated its authority over visitation or that there was a violation of the separation of powers doctrine.
C. P.D. and T.I. were not Deprived of Due Process
At the June 14 hearing the Agency's counsel acknowledged "the Agency probably should have filed a [section] 388 [petition]," but noted that not suspending visitation for a time would have been contrary to the children's best interests. Requiring the Agency to file a section 388 petition before suspending visits would have delayed the children's treatment and progress in the Treatment Foster Care program, jeopardizing their emotional health and their ability to experience safe and stable foster care placements. The court noted section 362.1, subdivision (a)(1)(B), provides that visitation may not jeopardize the safety of the child. It found Malia's and Noah's safety was of key importance and to ensure their safety, stabilize them and protect their best interests it was necessary to temporarily suspend visitation. It commented that because the children had changed placements so many times, it was important to do everything possible to stabilize their placements.
Moreover, any error in not requiring the filing of a section 388 petition before visitation was suspended would have been harmless under any standard of review. The visitation center that was monitoring P.D.'s visits had closed her case because she cancelled too many visits. The Court Appointed Special Advocate for the children reported that during visits P.D. appeared detached and uninterested and did not engage well with them. Victoria had reported that when P.D. visited she allowed the children to break rules, which confused them, and she did not seem to recognize their needs. The Treatment Foster Care placement was designed to help the children deal with the behavioral and emotional problems they were facing. Suspension of visitation was deemed necessary by the mental health professionals working with them and lasted less than eight weeks. Any error in not requiring a section 388 petition before suspending visitation was harmless.
P.D. and T.I. were not denied an opportunity to be heard. By May 17, 2011, they were aware Treatment Foster Care had temporarily suspended visitation. They were present in court on May 5, when the court set the 12-month hearing for May 31, were represented by counsel on May 31, when the court set the June 14 hearing, and the Agency social worker spoke to P.D. after May 31 to inform her of the June 14 hearing. Neither P.D. nor T.I. appeared in court on May 31 or June 14. They have not shown a denial of due process.
D. P.D. and T.I. were not Denied Reasonable Reunification Services
P.D. and T.I. were offered supervised visitation from the beginning of the case, and P.D. visited the children for 16 months. Because Malia and Noah had moved placements so many times during the course of their dependencies, they were in serious need of a constant, stable environment where their special need could be met. The interruption in visitation was necessary to serve their best interests and allow them to stabilize in a therapeutic environment. P.D. has not shown a lack of reasonable reunification services by the temporary interruption of visitation.
DISPOSITION
The petition is denied. The request for stay is denied.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.