Opinion
D081126
02-10-2023
In re R.D., a Person Coming Under the Juvenile Court Law. v. J.D., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J520966, Margie G. Woods, Judge.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent.
O'ROURKE, J.
This is the second appeal by J.D. (Mother) regarding her daughter R.D. In a prior appeal, we affirmed the juvenile court's jurisdictional and dispositional order finding jurisdiction and removing R.D. from Mother's custody under Welfare and Institutions Code section 361, subdivision (c).(In re R.D. (Oct. 19, 2022, D080435) [nonpub. opn.].) Thereafter, the juvenile court issued its final custody orders granting Mother limited, structured visitation with R.D. Mother again appeals, contending in this instance that the juvenile court abused its discretion in denying Mother's request for unstructured, unsupervised visitation. Mother argues that she has made progress with her mental health and that that the orders were overly restrictive and did not serve R.D.'s best interests. We disagree with her contentions and affirm.
All further section references are to the Welfare and Institutions Code, unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Family Background and Jurisdiction/Disposition Hearing
R.D. is a ten-year-old medically fragile child diagnosed with Rett syndrome. She is nonverbal and relies solely on her parents and caregivers to meet her basic needs and for her survival. Mother and R.D.'s father ("Father") are separated and living apart, and Mother has a history of mental illness. In February 2022, while in Mother's care, R.D. was admitted to the hospital with bruises all over her body. According to a child abuse expert, the bruises resulted from both neglect and physical abuse by Mother. The San Diego County Health and Human Services Agency ("Agency") filed a juvenile dependency petition on behalf of R.D. Following a detention hearing, R.D. was detained and placed with Father, who had moved into Mother's home to care for R.D. Mother was not to reside in the home.
Father is not a party to this appeal and will only be referenced when necessary.
At the jurisdiction and disposition hearing in March 2022, the Agency recommended removing R.D. from Mother and placing R.D. with Father on the condition that Mother not reside in the home with Father. The Agency also recommended family maintenance services for Father, family enhancement services for Mother, and supervised visits for Mother. In support of its recommendations, the Agency acknowledged that Mother is working with mental health professionals but argued that she is still suffering from symptoms such as mood disorder and manic phases, and her medication is still in the process of being adjusted.
The court found the allegations in the petition true by a preponderance of the evidence and further found that R.D. is a person described within section 300 subdivisions (a) and (b)(1). As to disposition, the court found by clear and convincing evidence that removal of R.D. from Mother's custody was appropriate under section 361, subdivision (c)(1). We affirmed the court's jurisdiction/disposition orders.
For additional factual and procedural background, please see In re R.D., supra, D080435.
B. July 2022 Interim Review Report and Review Hearing
The Agency's interim review report noted R.D. continued to reside with Father in Mother's former residence. R.D. was doing well in Father's care, was maintaining her weight, and was closely monitored by her doctors. Father kept the social worker informed about issues that arose regarding R.D.'s health.
Both parents attended a medical appointment for R.D. in May 2022. Father reported that the appointment was "challenging" due to conflict between Mother and R.D.'s medical team. One of R.D.'s doctors expressed similar concern about Mother's behavior at R.D.'s appointment. According to the doctor, Mother's constant interjections with "concerns unrelated to the visit" prevented the medical staff from obtaining R.D.'s medical history and "repeatedly derailed the conversation." Father suggested that Mother should be accompanied by the maternal aunt or another third party for R.D.'s future appointments.
Consistent with her court-ordered case plan, Mother continued to participate in therapy. In July 2022, Mother's longtime mental health therapist reported that her attendance was consistent, her mental health was stable, and she complied with her medication regimen. According to her therapist, this helped Mother engage in appropriate dialogue with the social worker. Also consistent with her court-ordered case plan, Mother completed an intake in July 2022 to begin one-on-one sessions for child abuse services.
Mother also had court-ordered supervised visitation with R.D. Although the social worker initially observed Mother to be manic when visiting R.D., she became calmer and more aware of R.D.'s needs and language during subsequent interactions. The social worker arranged for Mother to have twice-weekly visits with R.D., and approved the maternal aunt and a friend of Mother's to supervise additional visits.
The social worker assessed that Mother had made progress over the last few months in addressing her mental health. She maintained contact with the social worker and her service providers and diligently participated in visits with R.D. The Agency recommended that she continue to receive family enhancement services and Father continue to receive family maintenance services. Father planned to remain as R.D.'s sole caregiver, but hoped that Mother could be involved equally in the future.
Both parents participated in the July 2022 review hearing interview by phone. The Agency expressed its intention for Mother to begin having short, structured, unsupervised visits with R.D. The maternal aunt was to check in with Mother before visits. Mother submitted upon the Agency's plan.
C. October 2022 Status Review Report and Addendum Report
The Agency's status review report noted that R.D. continued to reside with Father. Since July 2022, Mother had structured and unsupervised visits with R.D. at Father's residence. The visits lasted two hours and occurred three times a week. On weekends, Mother visited R.D. for an additional four hours at the maternal aunt's home, with the maternal aunt present. Mother was required to communicate with maternal aunt one hour before each visit so that maternal aunt could evaluate Mother's stability and mental acuity. Father was to be less than five minutes away in the event of an emergency, and R.D.'s babysitter could support the visit.
In July 2022, Mother began living in the maternal aunt's garage. While there, she erroneously switched her psychotropic medication with her nicotine addiction medication. She attributed this to the stress caused by her living in the garage, the high heat, and her increased anxiety. As a result, Mother entered an adult residential mental health program to seek treatment for feeling overwhelmed and anxious, as well as for housing stability. Mother waited at least a month to update the social worker, initially telling her it was solely for residential stability until she could return to her apartment.
The social worker spoke to Mother's child abuse program therapist in August 2022. The child abuse therapist reported that Mother made no progress in addressing child abuse concerns since she started in June 2022. She spent the sessions venting about Father's care of R.D., her housing situation, and to express her feelings of being overwhelmed and unable to focus. Mother stated that she experienced anxiety and panic attacks, and felt anxious and depressed. The therapist noted that it has been challenging to redirect Mother and that he has considered terminating her as a client. Nevertheless, once he spoke to her about his concerns, she agreed to focus on the child abuse program and not bring up issues with Father or her housing. In August 2022, the social worker also spoke with Mother's psychiatrist. Mother's psychiatrist confirmed Mother had issues with her medications, and denied that she presently exhibited mania or thought disorder.
In September 2022, Mother told the social worker that she was taking a break from working with her longtime mental health therapist. She explained that she felt overwhelmed by her participation in other services, including five group meetings per week, meetings with a new counselor at her residential mental health program, and meetings with her child abuse therapist. She also remained under the care of a psychiatrist and engaged in a psychiatric medication regimen. The child abuse therapist completed an update of Mother's treatment plan. She attended 10 sessions, actively participated in the service, began to make progress, took accountability for past adverse parenting behaviors and learned how to parent in a protective manner. He assessed Mother to be at "moderate" risk for relapse behaviors. Mother's residential program counselor also reported that Mother was making progress in her residential program and had begun to interact with other individuals and participate in group activities. Mother had previously kept to herself and stayed in her room.
In October 2022, the Agency held a child and family team meeting with Mother, Father, Mother's residential program counselor, the maternal aunt, and R.D.'s worker from a non-profit service provider for people with disabilities. Father voiced frustration with Mother for incessantly texting, calling, and e-mailing him, including during her visits with R.D. Because Mother's visits took place at Father's apartment, she often questioned him about things she noticed there, and he was concerned that she went was going through his possessions. At the meeting, the parents agreed to discuss R.D.'s health and any issues by phone on a weekly basis. Then, as the meeting continued, Mother sent 10 text messages to Father. When Father informed meeting participants, Mother apologized and became emotional.
Mother repeatedly expressed that she was better able to care for R.D. than Father. When the social worker tried to discuss the injuries R.D. sustained, which precipitated jurisdictional finding, Mother "redirected and emphasized she was having a difficult time and repeated her challenges at the time with being sick, anxious, and overwhelmed."
R.D.'s primary care physician did not have any concerns about Father's ability meet R.D.'s medical needs. Father was responsive to R.D.'s medical team, followed their recommendations and successfully articulated R.D.'s care regimen. The Agency recommended that R.D. remain in Father's care, that Mother continue to receive brief and structured unsupervised visits, and that the juvenile court terminate dependency jurisdiction. In her assessment, the social worker noted Mother's sleep patterns improved and was mostly consistent with her psychotropic medication regimen. "Although [Mother] has not demonstrated being in a manic state since [she physically harmed R.D. in February 2022], [Mother] has continued to struggle with incidents of high anxiety, depression, and floods of emotion." The social worker noted that Mother's pervasive communications to Father during her unsupervised visits with R.D. "is a concern for the Agency as this may trigger [Mother's] mental health and place [R.D.'s] safety at risk." Moreover, the social worker also noted that Mother "places a strong emphasis of relying on additional time with [R.D.] or becoming [R.D.'s] primary caretaker playing a key role in [Mother] maintaining stability and relieving her anxiety." The social worker concluded, "This causes concern for the Agency regarding [R.D.'s] safety as [Mother] should be utilizing the tools she has learned with her therapist and current mental health program to address her anxiety and maintain stability with her mental health."
The Agency's October 2022 addendum report presented a recent e-mail where Mother asked Father to make an out-of-court agreement giving her shared or full physical custody of R.D. Mother alleged her child abuse therapist suggested the agreement and she believed the family court would be bound by it. Mother implied she would take more severe measures if they did not reach an agreement, including moving out-of-state to live with her parents and save money for a custody battle. She opined that R.D. regressed behaviorally since Mother has not had custody. She intended to get kicked out of her sober living facility because she disliked the environment. She believed Father would become too overwhelmed to care for R.D., and that third party nurses and babysitters would raise R.D. if Mother's level of involvement was not increased.
The social worker met Mother to discuss the e-mail, and she explained that the juvenile court's custody orders are binding, but they can later be modified by the family court. Mother then asked the social worker to tell the juvenile court that Father committed fraud with funds he received to help him care for R.D. The social worker explained that Father's insurance provided the funds.
D. Family Maintenance Review Hearing
At the juvenile court's October 2022 family maintenance review hearing, Mother asked the juvenile court for a minimum of 10 hours per week of unsupervised visits, without any conditions. Father and R.D.'s counsel asked that Mother's visits be structured consistent with the way they had been structured previously, including a required communication with the maternal aunt one hour before each visit to assess Mother's mental health; Father remaining within five minutes of the visit location in the event of an emergency; and the authorization of R.D.'s babysitter to be present during the visit for additional support. In its ruling, the juvenile court acknowledged Mother made "good" progress, encouraged her to obtain a support system, and implied that her mental health required continued monitoring. Despite this, "it is not a very long period of time and only time will let us know how long and how stable [Mother] can remain at her particular state." The juvenile court ordered structured visitation consistent with her prior structured visitation and terminated jurisdiction.
II. DISCUSSION
Mother contends the custody orders must be reversed because the juvenile court abused its discretion by denying Mother's request for unstructured, unsupervised visitation. We reject Mother's claims.
A. No Abuse of Discretion in Issuing Exit Orders
The juvenile court is authorized to issue exit orders addressing custody and visitation when terminating dependency jurisdiction over a child. (§ 362.4, subd. (a); In re T.S. (2020) 52 Cal.App.5th 503, 513.) "When making a custody determination under section 362.4, 'the court's focus and primary consideration must always be the best interests of the child.'" (In re T.S., at p. 513.) This determination is made without reference to any preferences or presumptions ordinarily applicable in family court. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712; In re John W. (1996) 41 Cal.App.4th 961, 972 ["presumption of parental fitness 'that underlies custody law in the family court just does not apply to dependency cases' "].) "[A] finding that neither parent poses any danger to the child does not mean that both are equally entitled to half custody, since joint physical custody may not be in the child's best interests for a variety of reasons." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.)
The custody order becomes part of the family law file and remains in effect "until modified or terminated by a subsequent order of the superior court." (§ 362.4, subds. (b) and (c); see Cal. Rules of Court, rule 5.700.)
We review a juvenile court's order terminating dependency proceedings and making a custody award for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)"' "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.) "A court abuses its discretion in making a child custody order if there is no reasonable basis on which it could conclude that its decision advanced the best interests of the child" or "it applies improper criteria or makes incorrect legal assumptions." (In re Marriage of Fajota (2014) 230 Cal.App.4th 1487, 1497, italics omitted.) A judgment or an order is presumed to be correct and the party challenging the order must affirmatively show error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We presume that the juvenile court regularly performed its duty by understanding and applying the law correctly. (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653; Evid. Code, § 664.) Mother argues the court abused its discretion in ordering that her visits with R.D. be structured, as well as that the evidence was unsupportive of that order. We disagree.
The court ordered, "Mother shall have structured, unsupervised visitation with [R.D.]. Maternal aunt shall have verbal contact with [Mother] one hour prior to every visit to insure [Mother] is stabilized and in good space. [Father] shall remain within 5 minutes of the apartment in case of an emergency, and the babysitter . . . may remain around the apartment for additional support. In addition to these 2 hour visits, which occur 3 times per week, [Mother] may spend additional time (up to 4 hours) with [R.D.] at the maternal aunt's home on the weekend with the maternal aunt present." This was the same structure, frequency and duration Mother had for her unsupervised visits with R.D. since they began in July 2022.
As the Agency stated in its report, the "parameters" were put "in place to insure that [R.D.] would be safe while having brief visitation with [Mother]." The social worker told Mother that its "priority is [R.D.]'s safety and how [Mother] can be safe with [R.D.] while they are visiting." The court similarly recognized that Mother "has to stay on her path to be able take care of herself, to stay clean and sober, to have wise guidance and to have commitment to be able to be at her best when she is with [R.D.]," but "that hasn't been the case." It was reasonable for the court to conclude that conditions would help keep R.D. safe during Mother's unsupervised visits. Empowering individuals to evaluate Mother's mental stability and intervene if necessary was clearly within the court's discretion. As the court explained, the "more" it "give[s] expectations" with "a clear path and clear guidelines" the more R.D. and "everyone" will be helped due to "the history of this family" and Mother's "challenges."
Although Mother argues that she "made progress in her mental health" and "had not been manic since the beginning of the case," her mental health had not stabilized for a long period of time. She entered a residential mental health treatment program in August 2022 because she felt anxious and overwhelmed, and her therapist there diagnosed her with a mood disorder with a manic phase. Until that time, Mother kept to herself, stayed in her room, and failed to participate in group sessions. She also appeared to pause her participation in individual therapy in September 2022. Mother's progress in her child abuse program was also new at the time of the hearing. In August 2022, her child abuse therapist reported Mother had made no progress since she began the service in June 2022. When Father informed meeting participants, Mother apologized and became emotional. Then, Mother e-mailed Father in an attempt to pressure him to make an out-ofcourt agreement vesting her full or shared custody of R.D. Mother implied she would take more severe measures if they did not reach an agreement, including moving out-of-state to live with her parents and save money for a custody battle. She also intended to get kicked out of her sober living facility. Further, Mother expressed that R.D. regressed behaviorally out of her care; believed Father would be overwhelmed caring for R.D.; and that third parties would raise R.D. if Mother's involvement was not increased.
The court noted Mother has exhibited progress over a short period of time, but that she needed to demonstrate stability over a longer period of time before her mental state could be assessed accurately. In reviewing the sufficiency of the evidence, all conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the judgment, if possible. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) In assessing what is in the child's best interests when making a custody determination pursuant to section 362.4, a court must consider the totality of the child's circumstances. (In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.) Here, considering the totality of the circumstances, the record contains substantial evidence supporting the conditions ordered by the juvenile court to govern Mother's unsupervised visits.
III. DISPOSITION
The juvenile court's custody orders are affirmed.
WE CONCUR: HUFFMAN, Acting P. J. DO, J.