Opinion
E079817
04-04-2023
In re C.L. et al., Persons Coming Under the Juvenile Court Law. v. E.L., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Super.Ct.Nos. J269744, J269745 & J269746)
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent
OPINION
McKINSTER J.
The children (Sk., Sc., and C.) were removed from their parents' custody in 2017. Since that time, the children have been living with foster parents under a permanent placement plan with the goal of adoption. Father consistently visited the children and progressed to unsupervised, overnight weekend visitation. However, on August 31, 2022, the juvenile court granted the San Bernardino County Children and Family Services' (CFS) Welfare and Institutions Code section 388 petition and reduced his visitation to supervised, once a month. On appeal, father contends the evidence does not show changed circumstances or that supervised visitation was in the children's best interests. We affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
A. Detention.
CFS has been involved in the parents' lives since Sk.'s birth in 2011. On February 27, 2017, CFS initiated dependency proceedings pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), after receiving a referral for general neglect. The petitions alleged that mother has mental health issues, her failure to reunify with the children's half siblings placed the children at risk, and both parents have significant substance abuse histories which impair their ability to provide care for and supervision of Sk., C., and Sc. The juvenile court detained the children and ordered supervised weekly visitation.
C. was born in 2014, and Sc. was born in 2013. Since mother is not a party to this appeal, she will be discussed as needed.
B. Jurisdiction/Disposition Report and Hearing.
Sc. and C. (sometimes referred to as the boys) were placed in one foster family home, and Sk. was placed in another because no appropriate home was willing and able to take all three due to Sk.'s autism. On April 25, 2017, the juvenile court removed physical custody from the parents, and ordered reunification services (including drug testing) and supervised visitation.
C. Six-month Status Review Report and Hearing
According to the six-month status review report, filed October 18, 2017, father had not completed his case plan but visited the children. CFS claimed that he often left to smoke, was on his cell phone, and failed to adequately supervise them. Father disagreed with these claims and requested visitation separate from mother. The juvenile court continued services, ordered a review hearing to address CFS's claims, and authorized unsupervised visitation for father. On November 13, 2017, CFS reported that father was attentive and supervised the children's needs during visitation; the children were excited to see him. The court ordered separate visitation for the parents, unsupervised for father only, and father could not supervise mother's visits.
D. Twelve-month Status Review Report and Hearing
In the 12-month status review report, filed March 27, 2018, CFS recommended termination of reunification services. Father failed to attend four random drug tests from October 27 through December 11, 2017, and failed to inform the social worker when his referral expired in December. He was not participating in unsupervised visitation because he chose to wait until mother was also allowed unsupervised visits. The parents explained their inconsistent visitation on being homeless, transportation issues, and employment priorities that take precedence so they may secure housing. The children were placed together in November 2017, but the caregiver was unable to keep Sc. with the boys due to her sexualized behavior. Sc. was developmentally on track and loved making new friends but was often over friendly with adult strangers. C. appeared to have developmental delays and was being assessed for services. Sk. is autistic with developmental delays. The juvenile court terminated mother's services but approved further services for father.
At the April 25, 2018, hearing, father stated: "I just didn't want the children to think that something was wrong. They were happy knowing every time they saw me, they saw Mom. They saw Mom, and they saw me. That's . . . what we decided we were going to do. Family reunification as a family, as a group, and I probably should have [taken] advantage of the unsupervised visits, but I felt selfish doing that."
E. Eighteen-month Status Review Report and Hearing
In the 18-month status review report, filed August 21, 2018, CFS recommended father's services be terminated and the children placed in planned permanent living arrangement (PPLA) with a goal of legal guardianship. Father had failed to make further progress on his case plan, was homeless and unemployed, and was not in a position to have the children placed in his care and custody. The social worker reported that father appeared unable to separate himself from being under mother's control "which also could limit his ability to protect the children from abuse and neglect in the future." He admitted to using drugs and was a no-show for all random drug tests since May 2. Father was granted two visits a week (one without mother) but only participated in visitation when mother attended. Mother's supervised visits were difficult to arrange due to her volatile actions and threats to CFS staff. Since she created situations that jeopardized the children's mental and emotional health, CFS asked the juvenile court to find that her visits were detrimental to them, requiring suspension of her future visitation. CFS repeated its concern that father's association with mother created a risk to the children which required his visits be supervised.
On August 27, 2018, the juvenile court terminated father's services but ordered supervised visitation, twice a month; mother's visitation was suspended.
F. Section 366.3 Postpermanent Plan Review Hearings
From February 2019 through August 2022, CFS prepared several status review reports that addressed father's positive changes, his ability to resume caring for the children, and the children's adoptability:
In 2019, CFS recommended the children remain in foster care, where they were doing well, until a relative or concurrent planning home was located. Sk. and C. had been in their current foster home since April 2018 and had built a strong bond with their caregivers. Sc. had been in the same foster home since February 2018 and was bonded with her caregiver. An older half sibling expressed an interest in adopting the children; however, she lacked a stable residence and enough support to address their special needs and behaviors. Father was visiting the children every other week-progressing from supervised to unsupervised-and interacting in an appropriate manner. On February 21, 2020 the juvenile court ordered unsupervised visitation for father twice a month, and authorized CFS to liberalize visits to overnights and weekends pending a positive home assessment.
In 2020, Sk. and C.'s caregiver was granted de facto parent status. Based on her interest in adopting the boys, CFS recommended a section 366.26 hearing and an adoption assessment. As to Sc., it was recommended that she remain in her current foster home until a relative or concurrent planning home was located. She had been placed with the boys' caregiver, but her behavior caused the boys' behaviors to escalate; thus, she was removed. Father had gained employment as a handyman for a landowner who allowed him to live in a trailer on the property. The trailer, which had room for four separate beds, running water, electricity, a bathroom, and a stove, was deemed appropriate for overnight visitation. Father consistently visited the children, and they enjoyed time with him. He was making positive changes in his life and when asked to rectify an issue, like fixing a broken toilet, he quickly did so. Although CFS allowed overnight visitation, father's constant contact with mother required a reevaluation of his unsupervised visits. On August 21, 2020, the juvenile court scheduled a section 366.26 hearing and authorized an adoption assessment of the boys' caregiver.
In 2021, CFS documented father's progress and consistent visitation with all three children but noted reports that they returned from visits dirty and very tired. The social worker expressed concern about father discussing the possibility of the children returning to his care because Sc. exaggerates what she hears and believes she will return to father's care after every visit. Also, father failed to correct the children when they became disengaged or fought with each other. During one overnight visit, the children said they were cold because there was not enough heat in the trailer; they were allowed to stay up late and not shower. Sc. had been placed with her current foster parent on November 13, 2020, and she wanted to remain in this placement if she could not return to the parents' care. On February 19, 2021, the juvenile court maintained the status quo but ordered supervised visitation, twice a month for two hours, with Sc. In contrast, father was granted unsupervised, overnight, visitation with Sk. and C.
On April 9, 2021, father filed a section 388 petition requesting services under a family maintenance plan or, alternatively, reinstatement of reunification services with a transition plan for family maintenance. CFS opposed the petition. It noted that although father could manage the children for weekend visits, and they were extremely bonded to him, he was unable to meet the daily needs of their disabilities and diagnosis. Sc. was mostly near age-appropriate development, but she still struggled academically and was one-to-three grades behind. She received "WRAP services" and was on attention-deficient/hyperactivity disorder medication. C. was in the process of being medically tested to identify a genetic disorder that causes him to be extremely unsteady/unstable on his feet, and he has speech issues and trouble with attention. He was at least two years behind with development and social maturity, and received in-home therapy for speech, vocational, physical, and tutoring. Sk. had a diagnosis of moderately severe autism with a limited vocabulary, and he experienced long temper tantrums if he did not get his way. He was receiving six-to-eight hours of in-home weekly therapy. When the social worker advised father that CFS would be recommending his petition be denied, while remaining open to reconsidering reinstatement of services, father accepted and agreed with the recommendation. On June 7, 2021, the juvenile court denied father's petition.
By summer 2021, CFS recommended a PPLA with a goal of legal guardianship for the Sk. and C. The adoption supervisor evaluated the foster mother and opined that the "success of an adoption is low due to a combination of factors, including, [the children's] behaviors and diagnosis, and their bond with their mother and father." The foster parent was open to the idea of service only guardianship of the boys but needed to discuss it with her husband. Regarding Sc., CFS recommended that she remain in foster care until a relative or concurrent planning home could be located. Father continued visiting the children, obtained a registered vehicle, car seats, car insurance, and he maintained a valid driver's license. The social worker acknowledged father's progress but opined that he has a long way to go before CFS could recommend evaluating him for the purpose of resuming custody of the children. The juvenile court withdrew the section 366.26 hearing for the boys, and maintained the status quo of the children residing in their respective foster homes.
From August to December 2021, father maintained consistent visitation with the children, including weekend unsupervised visits twice a month with the boys, unless his health prevented visitation. Father was battling an illness that caused him to miss many scheduled visits or limit visitation to two hours in the community rather than overnight. The children enjoyed their time with him, and he remained an important part of their lives. Nonetheless, father remained unable to resume full custody of the children due to their special needs, services, and appointments. Also, the social worker was concerned for their well-being and health if they were to stay with father for longer periods. When they returned from visits, they needed at least one day to return to a normal schedule. Sk. and C.'s caregiver had yet to agree to guardianship of the boys, and adoption was ruled out due to the number of children in her home and their medical and behavioral needs. The boys stated that they wanted to remain in their current placement. The juvenile court ordered father's visitation with the boys to be unsupervised, twice a month from Friday to Sunday, and a permanent plan of legal guardianship for them. For Sc., the court ordered father's visitation to be unsupervised for a minimum of twice a month for two hours, and a plan of foster care with a permanent plan of adoption.
In 2022, no family member, other than the children's half sister, had been located for potential placement. The half sister was not eligible for placement because she remained in extended foster care. Again, the boys' foster mother (who had been caring for the boys since April 2018) requested adoption. Father maintained consistent visitation; however, the boys were returning from their visits dirty, with scratches, and hungry. The social worker conducted a safety visit of father's home; there was running water, a working refrigerator, a bathroom with a working toilet, shower, and sink, and a working refrigerator. There were adequate sleeping areas, a large queen-size bed, a dining table, and a sofa, both of which converted into sleeping areas. However, it was noted that there were a few hazards, such as a deteriorating plastic crate used for entering the home, cords running across the floors, and the entrance to the front seats blocked by plyboards; the yard was large enough for the children to play in, but they needed supervision.
After the May 21, 2022, visit with father, the social worker noticed that the children returned dirty and sweaty. When asked about this, father replied that the children took baths but then got dirty again. The social worker expressed concern about the amount of time allotted for father's visitation. She explained that Sc. told her and the foster mother that she sleeps with father when she participates in weekend visitation. The foster mother reported that Sc. displays inappropriate sexual behaviors, has unclean body odor, and has scratches on her body after visiting father. Thus, CFS recommended that father's visits be reduced to twice a month for up to four hours and adoption be selected as the boys' permanent plan. The boys' counsel also requested that father's visits be reduced and supervised. The juvenile court ordered father's visits to be supervised once a week for two hours; father objected to the change in his visitation, and the court set a contested hearing.
On July 14, 2022, Sc. was placed in a different foster home because the prior caregiver was unwilling to allow various service providers into her home. After a recent six-hour visit with father, the social worker picked up the children from his home and noted that Sc. had a black eye and a dog bite on her right ankle. Sc. said that father was inside the home while the children played outside. When the social worker attempted to talk to father, he walked away, got in his vehicle, and drove off. Based on CFS's recommendation, the juvenile court ordered father's visitation with Sc. be supervised, once a month for up to four hours; father's counsel objected, and a contested hearing was set for the same day as the contested hearing on father's visitation with Sk. and C.
G. Section 388 Petition and Hearing
On August 24, 2022, CFS filed a section 388 petition requesting supervised visitation for father, limited to once a month for three hours. CFS asserted concern about father's failure to supervise the children, lack of hygiene care of them, and the unsafe environment at his home. Father did not attend the August 31, 2022 hearing. His counsel objected to CFS's request to change visitation based on a lack of affirmative evidence. The juvenile court found sufficient facts to support the request and reduced visitation with all three children to once a month for three hours, supervised.
II. DISCUSSION
Father contends the juvenile court abused its discretion in granting CFS's section 388 petition seeking to reduce his visitation and require that it be supervised.
"Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child . . . shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction." (§ 388, subd. (a)(1).) "The burden of proof at any such hearing is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence and that also a change in court order would be in the best interest of the child." (In re D.B. (2013) 217 Cal.App.4th 1080, 1089.) "We review the grant or denial of a petition for modification under section 388 for an abuse of discretion." (In re Y.M. (2012) 207 Cal.App.4th 892, 918.) "'"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."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Father claims that CFS failed to show that the family's circumstances had changed to support a finding that supervised visitation was necessary. We disagree. The changed circumstances were identified as (1) the children returning from weekend visits dirty, hungry, and with scratches, (2) Sc. announcing that she was sleeping with father during weekend visitation, and (3) Sc. displaying inappropriate sexual behaviors and having unclean body odor following visitation or having a black eye and a dog bite on her right ankle. When the social worker attempted to speak with father regarding the physical conditions of the children, he walked away, got in his vehicle, and drove off. Nonetheless, father asserts that Sc.'s sexualized behavior was not a changed circumstance because it was noted in 2017. However, her prior sexualized behavior occurred when she was placed in the same foster home with her brothers, while her most recent sexualized behavior is attributed to her spending the weekend with father where she slept in the same bed with him. Regarding Sc.'s black eye and dog bite, father blames CFS for failing to make any further attempt to discuss the issue with him. This begs the question, to what end? The issue was raised in the section 388 petition and this appeal, but father offered, and continues to offer, no response. Rather, he suggests that Sc.'s injuries may be the result of her "self-harming behaviors or . . . history of being injured accidentally." Even if this were true, she was injured while in father's care, and she stated that her injuries occurred while she was playing outside. If father suspected that her injuries were self-inflicted, he failed to notify the social worker or follow-up on his suspicions. Because there is sufficient evidence of changed circumstances, we consider whether the reduction in father's visitation is in the best interests of the children.
Father maintains that it is not in the children's best interests to revert his visitation to supervised monthly visits because they were bonded to him and looked forward to seeing him and their siblings. We agree that the children are bonded with father; still, their safety and well-being take priority. It was resolved that they could not return to his custody because of his inability to meet each of their special needs. Thus, the plan is to place them in adoptive homes or under permanent guardianships. Pending such placement, father enjoyed unsupervised, weekend visitation. However, since his lack of supervision, hygiene care, and unsafe environment has affected their safety and wellbeing, the juvenile court acted within its discretion when it granted CFS's section 388 petition to require supervised, monthly visitation.
III. DISPOSITION
The order changing father's visitation is affirmed.
We concur: RAMIREZ_ P. J. CODRINGTON J.