Opinion
E067930
09-27-2017
In re M.T. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.T., Defendant and Appellant.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J268159, J268160 & J268161) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant F.T. (mother) is the mother of the three children—C.R., a boy born in 1999; S.T., a girl born in 2000; and M.T., a girl born in 2012—who are the subjects of this dependency matter. Mother challenges the juvenile court's orders, issued March 1, 2017, regarding her educational rights and visitation. More specifically, mother argues that the court applied the incorrect legal standard when it limited her educational rights with respect to the two older children, and she asserts that applying the correct standard there was no appropriate basis for the limitation. She also contends that the court's visitation orders were not reasonable, because they provide that the two older children "will not be forced to visit." Defendant and respondent San Bernardino County Children and Family Services (CFS) argues that mother waived or forfeited these arguments, and in any case the juvenile court did not err.
We find no prejudicial error, and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The family first came to the attention of CFS in August 2016, when the two older children were arrested on suspicion of domestic violence against mother and taken to juvenile hall. CFS investigations later revealed that mother physically abuses S.T., and C.R. frequently gets involved, attempting to play the role of peace maker and restraining mother with a "bear hug" when "things become violent." Mother drinks vodka "constantly," and is particularly prone to bruising due to anemia. The bruises observed by police, which mother claimed were from S.T. and C.R. attacking her, were, according to S.T., from mother "falling around the house from being drunk." S.T. and C.R. were held in juvenile hall for three days before charges were dropped, and they were released to the custody of their maternal grandmother.
In October 2016, the family again came to the attention of CFS. The referral indicated that S.T. had been kicked out of the home of the maternal grandmother, and returned to mother's home. Mother came home drunk in the middle of the night and kicked S.T. out, waking her up yelling at her, and calling her "'worthless.'" S.T. had to go to her friend's house in the middle of the night. Mother called law enforcement and reported that S.T. had run away. The referral noted that "[o]n occasion mother has thrown large objects at [S.T.] and has put her hands around her throat trying to choke her."
During the CFS investigation, a social worker visited S.T.'s school, to meet with S.T. While there, the social worker observed police officers outside the administration office, talking with a woman and small child, later determined to be mother and M.T. Mother was yelling at S.T., telling her that she and her brother C.R. were "the reason that her child [M.T.] was being taken away."
In her conversation with the social worker, S.T. reported that mother "would 'get drunk everyday and pull all nighters.'" She described mother as having been violent towards her on several occasions, including the night in August 2016 when mother had S.T. and C.R. arrested. Mother engaged in harassing and threatening behavior, including "constantly" calling C.R., who warns S.T. not to answer her phone if mother calls because she is drunk. Mother would come to S.T.'s school drunk, and be prevented from pulling the children from class by the campus officer. S.T. reported that mother had told her that she loves M.T. more than she loves S.T., and that she (mother) is glad that she had another daughter.
When interviewed, mother was hostile toward the social worker. She denied that she drinks any alcohol, but also admitted that the last time she drank was a week before. Her criminal history included two convictions for driving under the influence of alcohol. She made inconsistent statements regarding when she had last seen S.T., first saying it had been two weeks, then saying it had been two months. Regarding S.T., mother said that she is "'a liar! A liar! A liar! She's manipulative and cunning.'" Mother stated that she was fine with her older children being removed from her care because she has her other daughter, M.T. Mother admitted to engaging in domestic violence in the presence of M.T., with M.T.'s father.
In early November 2016, the children were taken into custody of CFS, and dependency petitions pursuant to Welfare and Institutions Code section 300 were filed with respect to each of them. In addition to allegations regarding the children's respective fathers, the petitions alleged the children came within section 300, subdivision (b) (failure to protect) based on mother exposing the children to domestic violence, her history of mental illness, and substance abuse. The petitions also included allegations under section 300 subdivision (a) (serious physical harm) for S.T., and subdivision (j) (abuse of sibling) for M.T. and C.R., based on mother's physical abuse of S.T.
Further undesignated statutory references are to the Welfare and Institutions Code.
At the detention hearing on November 9, 2016, the juvenile court found a prima facie case had been established pursuant to section 300, and detained the children out of the home; C.R. was placed with the maternal grandmother, S.T. with a nonrelated extended family member, and M.T. in foster care. Mother was ordered to have weekly supervised visitation with the children.
In the jurisdiction/disposition report, filed November 28, 2016, CFS recommended that the children be removed from mother, that M.T. be placed with her father, that the older children remain in their current placements, and that mother receive reunification services. CFS recommended that mother's educational rights for C.R. and S.T. be limited, with those rights delegated to their respective caregivers. With respect to visitation, CFS recommended continued weekly supervised visitation.
Neither M.T.'s father, nor the father of C.R. and S.T., are parties to the present appeal, so they will be mentioned only as necessary for context.
In the report, CFS elaborated on mother's history of violence, alcohol abuse, and mental health issues. Mother had been physically and sexually abused by her father, and S.T. reported that the family had endured years of abuse by him. On one occasion, when mother was 28 years old (she was 37 at the time of the report), she had been hospitalized as a danger to others, after a fight with her sister, but she was released after a day. Based on interactions with mother, the social worker had concerns about mother's mental health, but was "unsure if she has any underlying mental health issues or if the alcohol abuse is causing her erratic behavior." Mother denied having either a drinking problem or mental health issues.
The social worker found M.T. to be "an articulate 3 year old child . . . able to verbalize clearly what has been happening in her family according to what she has seen." M.T. spoke of her mother drinking "'poison,'" referring to alcohol, and expressed that she did not like her mother to do that, because when she does she is "'mean'" to her.
S.T. reported to the social worker that mother's drinking had gotten worse over the previous year, and "that is when the hitting started." Mother had slapped S.T. in the face once, and had hit her with open and closed hands "all over her body." Mother had thrown many different types of objects at her. She had suffered bruises and a black eye from mother's violence. Mother also abused S.T. verbally, calling her names such as "'whore'" and "'slut,'" and telling her to leave the home and "'go with your other side of the family.'"
C.R. refused to speak to the social worker about mother. S.T. reported, however, that C.R. would get between mother and S.T. to prevent verbal arguments from turning physical, and that because of mother's drinking both C.R. and S.T. "tried not to spend much time in the home."
With respect to the children's education, the social worker noted that M.T. did not yet attend school, but both C.R. and S.T. were high school students with college aspirations. S.T. was a sophomore taking honors classes, and was ASB president, in addition to participating in sports. C.R. was a senior, who hoped to attend college in the fall. Both children, however, had recently been demonstrating behavioral issues that affected their schooling. C.R. had been getting into fights at school, and had been suspended, affecting his chances of getting into the college of his choice. The social worker described S.T. as "a good student," but she "has problems with defiance and anger." The social worker observed that S.T. was resentful that mother gave preferential treatment to C.R., "which appears to be a cultural norm, where the men in the family are well-taken care of by the women in the family."
The social worker arranged for a visit between mother and all three children on November 18, 2016. S.T., however, told the social worker that she had student government duties and basketball practice, so she was unable to attend. She also expressed that she "did not want to visit her mother." C.R., too, had other obligations; he had to work. When asked whether he wanted to visit with mother, he told the social worker "'I can see my mother at her house.'" When told that he could not see mother unsupervised, he stated that he "'would not see his mother supervised.'" C.R. did not feel that the dependency was "'necessary.'" For similar reasons, S.T. and C.R. also did not attend a scheduled visit with mother on November 21, 2016. Mother, too, however, failed to show up for that visit.
In an addendum report, filed November 30, 2016, the social worker reported various statements by mother that "may speak to her unstable mental health." On the same date, the juvenile court ordered continued weekly supervised visitation for mother, and referred the jurisdictional and dispositional issues to mediation. The juvenile court rejected CFS's recommendation that M.T. be placed with her father, but authorized an extended visit, if the father tested negative for drugs and alcohol.
On December 21, 2016, the mediator reported that the parties had reached partial agreement. Mother agreed to placement of M.T. with the child's father and to C.R.'s placement with the maternal grandmother, and submitted to the removal of the children from her custody and to the court sustaining jurisdictional allegations concerning her history of alcohol abuse and domestic violence. Mother contested allegations regarding her physical abuse of S.T., and contested S.T.'s placement with a nonrelative extended family member.
In an addendum report, filed on December 21, 2016, CFS reported that mother had twice come to its offices smelling of alcohol. It also noted that there had been "no concerns with [M.T.] living with her father thus far." On the same date, the juvenile court set a pretrial settlement conference, and a trial to address unresolved issues, for March 1, 2017.
In a subsequent addendum report, filed March 1, 2017, CFS reported that mother had indicated that she only wished to reunify with M.T. The report notes that mother was only visiting with M.T., because the other children had chosen not to visit with mother.
On March 1, 2017, based on the mediated agreement, the juvenile court sustained the allegations regarding mother's history of domestic violence and alcohol abuse, dismissing with the agreement of CFS the allegations based on mother's physical abuse of S.T. Mother waived her right to trial and submitted on the CFS reports, completing a waiver of rights form. The court removed the children from mother, ordered them placed according to CFS recommendations, and ordered family reunification services for mother and the children. The juvenile court ordered mother to have weekly supervised visits with the children, but specified that S.T. and C.R. "will not be forced to visit." The court further found that it is in the best interest of the children to limit the mother's educational rights, assigning the educational rights of C.R. and S.T. to their respective caregivers.
II. DISCUSSION
A. The Juvenile Court Did Not Err in Limiting Mother's Educational Rights.
Mother contends that the trial court erred by basing its decision regarding her educational rights on the "best interest" of C.R. and S.T., contending that the court was only empowered to limit them as "'necessary to guarantee the child[ren]'s safety.'" She further contends that the error was not harmless, because the limitation was not necessary to protect C.R. or S.T. She also argues that the court erred by failing to describe adequately the reasons underlying its findings. We find no prejudicial error.
We acknowledge the arguments by CFS that mother either waived or forfeited all of her asserted claims of error in this appeal. In the interest of judicial economy, however, we will address mother's claims on their merits, without discussion of waiver or forfeiture issues.
Parents "have a constitutionally protected liberty interest in directing their children's education. [Citations.] However, when a child is a dependent child, a court may limit a parent's ability to make educational decisions on the child's behalf by appointing a responsible adult to make educational decisions." (In re R.W. (2009) 172 Cal.App.4th 1268, 1276; § 361, subd. (a)(1).)
Section 366.1 provides that "[i]f the parent or guardian is unwilling or unable to participate in making an educational decision for his or her child, or if other circumstances exist that compromise the ability of the parent or guardian to make educational decisions for the child, the county welfare department or social worker shall consider whether the right of the parent or guardian to make educational decisions for the child should be limited." (§ 366.1, subd. (e).) Court-imposed limitations on a parent's educational rights "may not exceed those necessary to protect the child." (§ 361, subd. (a)(1).) An order limiting a parent's educational rights is reviewed for abuse of discretion, "bearing in mind '[t]he focus of dependency proceedings is on the child, not the parent.'" (In re R.W., supra, 172 Cal.App.4th at p. 1277.)
The juvenile court did not exceed the scope of its discretion by limiting mother's educational rights. The record amply supports its implied finding that mother's ability to make educational decisions for C.R. and S.T. was compromised by her drinking and potential mental health issues. The record also supports the finding that it is necessary to protect children from having anything in their lives, including their education, controlled by a parent who subjects them to both physical and emotional abuse, and who continued to demonstrate erratic and sometimes aggressive behavior towards school officials and social workers. The circumstance that C.R. and S.T. have in the past been successful in school, both academically and in extracurricular activities, in no way diminishes the need for such protection: "Just as in other areas of dependency law, the juvenile court need not wait until harm occurs before making orders to protect the minors." (In re D.C. (2015) 243 Cal.App.4th 41, 58.)
As mother points out, the trial court cited to the child's "best interest," rather than the statutory language of sections 361 and 366.1, when making its order limiting her educational rights. In the context of the present case, however, we do not find the trial court applied an incorrect standard, or that any arguable error was prejudicial. It is hardly controversial to conclude that it is in the best interests of the children for their education to be controlled by someone whose ability to make decisions is not compromised by alcohol abuse and who has not exposed the children to domestic violence. And there is nothing in the record that suggests that the trial court might have limited mother's educational rights out of a general sense that the children would be better off if it did so, rather than based on a finding that mother's ability to make educational decisions for the children was compromised. We are persuaded, having reviewed the record, that if we remanded the matter with instructions to reconsider the matter with specific reference to the relevant statutory language, the juvenile court would reach exactly the same conclusion. No remand, therefore, is appropriate, because the law does not require idle acts. (See In re Vincent S. (2001) 92 Cal.App.4th 1090, 1093; Civ. Code, § 3532.)
A case cited by both parties, In re D.C., supra, 243 Cal.App.4th 41, is instructive. In that case, a father sexually abused a teen, placing two younger children at risk. (Id. at p. 46.) On appeal, the father contested the limitation of his educational rights with respect to the two younger children. (Id. at p. 58.) The court of appeal upheld the limitation, pointing to evidence that the father had called the school of the teen multiple times, and harassed school officials: "The juvenile court could reasonably have determined that an order limiting [the father's] educational rights was necessary before he began to harass officials at [the younger children's] school as well." (Ibid.)
Mother argues, attempting to distinguish In re D.C., that "there is no history of Mother . . . harassing school officials, or otherwise being uncooperative in participating in her children's education." The record, however, does not support this assertion. Mother repeatedly came to the school of S.T. and C.R. drunk, and had to be prevented by the campus officer from pulling the children out of class. The social worker observed mother at the school, outside the administration building, yelling at S.T., telling her that she and her brother C.R. were "the reason that her child [M.T.] was being taken away," and requiring the intervention of police officers. The juvenile court could reasonably conclude that, even if mother had not yet harmed the education of the children, her behavior had raised sufficient cause for concern to justify preventative action.
Citing Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104 (Jonathan L.), mother argues that the trial court erred by limiting her educational rights based on a finding that doing so was in the child's "best interest," but without any explicit finding that the limitation was "necessary to guarantee the child's safety." We disagree with mother's reading of Jonathan L. In that case, the Court of Appeal considered "the constitutionality of allowing a dependency court to restrict home schooling in order to satisfy the compelling government interest of the child's safety." (Id. at p. 1103.) The court found that such an order could be a constitutional; if, "in the proper exercise of its discretion, that due to the history of abuse and neglect in the family, requiring a dependent child to have regular contact with mandated reporters is necessary to guarantee the child's safety, that order would satisfy strict scrutiny," and would be the least restrictive means of achieving the goal of protecting the children. (Id. at p. 1104.) The court did not hold, as mother would have it, that limits on a parent's educational rights are unconstitutional unless "'necessary to guarantee the child's safety.'"
Additionally, mother's reliance on case law involving circumstances where the juvenile court is required to make an express finding of detriment before taking an action, such as In re B.G. (1974) 11 Cal.3d 679, 699, is misplaced. The Legislature knows how to require the juvenile court to make an express finding of detriment, and it did not do so with respect to orders limiting a parent's right to make educational decisions. (See § 361, subd. (a)(1).)
Mother points out that the rules of court require that, when a court finds that a parent's educational rights should be limited, the court "must explain to the parent . . . why the court is limiting his or her educational . . . decisionmaking rights . . . ." (Cal. Rules of Court, rule 5.651(b)(2)(H)(ii).) The juvenile court did not do so in this case. Nevertheless, its failure to do so does not change the outcome. The court had good cause to limit mother's educational rights, and this remains true even if it did not adequately explain its reasoning. Any error was harmless.
B. The Juvenile Court Did Not Abuse Its Discretion with Respect to Visitation.
Mother contends that the trial court abused its discretion by specifying that C.R. and S.T. are not to be forced to visit with her. We disagree.
Visitation orders are the prerogative of the juvenile court, which must always consider the best interests of the child when making them. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757.) "In exercising its discretion, the trial court is required to make a '"'reasoned judgment'" and compl[y] with the "'legal principles and policies appropriate to the particular matter . . . .'"'" (In re Lee G. (1991) 1 Cal.App.4th 17, 26-27.) Among these principles is the general rule that the court "may deny a parent visitation only if visitation would be harmful to the child." (In re S.H. (2003) 111 Cal.App.4th 310, 317, fn. 9.) However, the "parent's interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation." (Id. at p. 317.)
We will not disturb the court's decision regarding visitation unless it is arbitrary, capricious, or patently absurd. (Stephanie M. (1994) 7 Cal.4th 295, 318.) Some courts have applied a substantial evidence test, rather than reviewing for abuse of discretion. (E.g., In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) Our conclusion here would be the same under either standard.
The juvenile court's order, that C.R. and S.T. are not to be forced to visit with mother, was not arbitrary, capricious, or patently absurd. It was reasonable for the juvenile court to conclude that forcing teenagers to visit with a parent who had abused them both physically and emotionally, and who has continued to demonstrate symptoms of the alcohol abuse that likely contributed her abusive conduct, would be detrimental to the children and to the goal of achieving family reunification. In essence, the juvenile court ordered visitation "under the one circumstance that would offer the best possibility that such visitation would be beneficial—when the child[ren] desired such contact." (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238-1239.) We find no error.
III. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P.J. SLOUGH
J.