Opinion
H048306
11-30-2021
In re H.L., a Person Coming Under the Juvenile Court Law v. D.L., Defendant and Appellant. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 19JD025696)
ELIA, ACTING P.J.
The juvenile court dismissed dependency jurisdiction and issued custody orders granting K.L. (father) full legal and physical custody of H.L. (the child) and limiting appellant D.L. (mother) to professionally supervised visits. The court's custody orders required mother to pay for the professional supervision and granted father discretion to permit nonprofessional supervision by a mutually agreed third party.
Mother appeals and contends that the juvenile court abused its discretion and violated her constitutional rights by ordering her to pay the cost of the professional supervision because she had testified at the hearing that she "can't afford it" and "I don't know how I would pay for it." She also contends that the court abused its discretion in ordering professional supervision. In addition, mother asserts that her trial counsel was prejudicially deficient in failing to object to the court's order granting father discretion to permit nonprofessional supervision, which she claims was an 1 improper delegation. We find no abuse of discretion or constitutional violation and conclude that her trial counsel was not prejudicially deficient. Accordingly, we affirm the court's orders.
I. BACKGROUND
Father and mother married in 2013. The child was born quite prematurely (at 26 weeks) in January 2014, and he was hospitalized for over three months after his birth. Father, who was raised in Tennessee, is a disabled veteran who suffers from PTSD, a traumatic brain injury, and spinal problems. Mother has a history of methamphetamine abuse.
The couple separated in August 2016, and a battle over custody of the child ensued. They initially shared custody of the child. In June 2018, mother made suicidal threats and was found in her fiancé's home with loaded firearms and narcotics. Mother tested positive for cocaine in December 2018 and displayed "psychotic behavior."
In December 2018, the family court granted father temporary sole physical custody and limited mother to professionally supervised visits. The parties were required to share the cost of the supervision. The family court required supervision of mother's visits due to concerns about mother's "untreated substance use and mental health." Mother responded to the family court's ruling by screaming very loudly in the child's presence. She repeatedly refused to follow visitation rules during supervised visits.
Mother and her fiancé purchased a business, variously described as a sports bar or a restaurant, in February 2019. Her fiancé was a "known drug user." In March 2019, mother absconded with the child while the child was visiting the maternal grandparents. The following day, mother took the child to the child's attorney's office. When mother was told that the child would be taken into protective custody, 2 mother became violent in the child's presence and broke a window. After father learned of this incident, he confronted the maternal grandfather and was arrested.
The child was taken into protective custody, and the Department of Family and Children's Services (the Department) filed a Welfare and Institutions Code section 300 petition. At the commencement of the dependency case, the court found that requiring the parents to repay the cost of legal services would be "unlikely" or a "financial hardship" for them, and it found that they had an "inability to repay costs of legal services."
The child was placed with maternal grandparents shortly after he was taken into protective custody. The maternal grandparents obtained a restraining order against father. Mother attempted suicide in April 2019 by taking cocaine and Xanax. She repeatedly refused to engage in the random drug testing to which she had been referred by the Department.
In May 2019, the court detained the child, placed him with maternal grandparents, and permitted the Department to allow father unsupervised visits. Mother was limited to supervised visits.
At the August 2019 jurisdictional hearing, the parents submitted on jurisdiction. Father was granted unsupervised visitation, and mother was granted supervised visits. In September 2019, during a supervised visit, mother tried to leave with the child. Mother missed about half of her visits, often because she arrived too late.
The Department's dispositional recommendation was that the child be placed in father's custody with family maintenance services. The Department had determined that mother posed a "very high" risk to the child. She not only had made no progress since the initiation of the case, but her conduct had worsened.
At the December 2019 dispositional hearing, mother testified that she had "a stable home," "own[ed] a business," and had been paying $15,000 a year for the child's school. She also testified that she and her fiancé lived by themselves in a 3 three-bedroom house. In addition, she testified that she had been paying $300 a month to an "online counselor."
The juvenile court declared the child a dependent and removed him from mother's custody because mother posed a substantial danger to him. The court did not remove the child from father's custody. Instead, the court ordered that the child remain in father's custody with family maintenance services. Mother was not granted reunification services but only services "to enhance visitation." Mother was allowed professionally supervised visitation "in a secure setting" twice a week for two hours. The maternal grandparents were granted monthly unsupervised visits. Mother appealed from the dispositional order, but that appeal was dismissed as abandoned after her appointed counsel filed a no-merit brief.
Mother was frequently late for her scheduled visits and repeatedly threatened to leave with the child. She expressly stated her intention to abscond with the child again if she saw fit. Some visits were cancelled due to her failure to arrive on time. Father, on the other hand, made substantial efforts to facilitate mother's visits with the child.
In May 2020, the Department recommended that the case be dismissed with custody orders awarding father full legal and physical custody and providing mother with only "supervised visitation with a professional visitation supervisor." The Department reported that mother was 37 years old and lived in a hotel in Campbell. She and her fiancé owned a sports bar in San Jose, which was "currently closed" due to pandemic restrictions. Father was living in Campbell. Due to his premature birth, the child suffered from chronic lung disease and asthma, so he was at high risk for severe illness if he contracted COVID-19.
Mother continued to miss many visits, and she missed nearly half of her visits due to her lateness. When the visits took place, the child was "happy and comfortable" with mother, and they appeared to have "a strong bond." Although mother was "nurturing and interactive" with the child during the visits, the child would 4 become upset when she ended a visit early or when a visit was cancelled due to her lateness. The child stated that he "misses" mother.
Mother did not participate in any services until more than a year into the dependency case. She frequently insulted the social worker and the visit supervisors and threatened to sue them. Mother complained that "visits being supervised was illegal." She sent harassing messages to father, and she repeatedly stated that she would abscond with the child "again in order to keep him safe." Mother "demonstrated difficulty in understanding and adhering to rules, structure or boundaries" and did not respect the Court's authority. The Department's recommendation for professional supervision of mother's visits was due to mother's "unpredictable behaviors, continued substance use and unstable emotional health," and it observed that the maternal grandparents were not able to provide adequate supervision because they "lack an understanding" of mother's problems.
Communication between mother and father was fraught, and the Department believed that it would be best if mother did not communicate with father. Maternal grandparents were also antagonistic toward father. In June 2020, maternal grandparents' visits were changed to supervised after concerns arose that they were coaching the child to make allegations against father. By June 2020, mother reported that she was working. She had cut off all communication with the Department and continued to frequently miss visits.
In July 2020, father told the Department that he was considering moving to Tennessee. He had inherited a farm in Tennessee, and his father needed help after 5 knee replacement surgeries. Father struggled to afford living in California but would be able to afford to live in Tennessee, where he also had family support.
Mother asserts on appeal that "the appellate record suggests that [f]ather had moved out of state shortly after the July 2020 ruling." The appellate record indicates only that father was considering such a move.
In July 2020, the court granted maternal grandparents' request for de facto parent status, which they sought solely to have an opportunity to argue for visitation upon dismissal of the case. None of the parties opposed dismissal of the case. The only issues before the court at the July 2020 family maintenance review hearing concerned the terms of the custody orders. Mother sought joint custody, unsupervised visitation, or at least visitation that was not required to be professionally supervised. The grandparents sought visitation.
At the hearing, the social worker testified that mother's inconsistent visits upset the child. At a recent visit, mother had cried and told the child that father was to blame because he had "lied to the Court." The social worker believed that, because mother "continues to be a threat to abduct her son," professionally supervised visits for mother were the least restrictive option. On the plus side, when visits occurred, mother was usually appropriate, loving, and nurturing, and she had a strong bond with the child. On the other hand, mother had not completed any aspect of her case plan except individual therapy.
Mother admitted that at her most recent visit with the child she had told the child that "it was his dad's fault." She testified that instead of utilizing the random drug testing ordered by the Department, she was "drug testing on my own," which was not random, and paying for it herself, "out-of-pocket." Although she initially testified that she had been "clean and sober" for two years, on cross-examination she testified "if you want to say like complete abstinence, it's probably been closer to a year, year and a half." When pressed for a date upon which she had started being clean, she said after her April 2019 hospitalization.
Mother testified that she had undergone "intravenous nutrient therapy" "twice this year" for an undiagnosed health issue and was due to repeat this "very expensive" 6 treatment again soon. She testified that she and her fiancé "own a business together," and she "manage[s] a staff of ten people." While their "restaurant" had been "closed for four months," she testified that "it's finally being able to reopen . . . ." She and her fiancé also "have a three-bedroom house" that they had moved into a month earlier. Her fiancé's three boys lived with them part of the time. Mother testified that she was "about to . . . finish my bachelor's degree in paralegal studies." She had also "started a nonprofit organization" to help other parents "write up legal documents and things like that."
Mother testified that she was concerned about the recommendation for professional supervision of her visits because "I can't afford it," the supervision "before" was "expensive," and "I don't know how I would pay for it." She testified that the social worker had not given her any information about "free or low cost" professional supervision, and she did not believe that supervision of any kind was "necessary." If supervision was necessary, she believed that her family friend, K.G., or other "friends" would be appropriate supervisors.
Mother's trial counsel argued to the court that mother should receive joint custody because she "is working" and has an appropriate "living arrangement" to be able to care for the child. She also argued: "Dismissing this case with professionally supervised visitation as the only option essentially means that [mother] is not going to see her son again . . . ." Her counsel noted that mother "testified that she's not going to have the ability to pay for professional supervision and has been given no information about any alternatives for if [sic] any professionally supervised visitations that work on a sliding scale or for free." She asked that the court "at least allows some leeway for a mutual third party, such as [K.G.] or someone else deemed appropriate, to supervise the visits." The child's trial counsel submitted on whether professional supervision should be required. 7
The court rejected mother's request for joint custody or unsupervised visitation on the grounds that mother had made no progress on the issues that had led to the dependency. She had not addressed her substance abuse, and the court "does not believe her" that she is clean and sober. Mother also had not adequately addressed her "emotional dysregulation" or her mental health issues. The court expressly found that mother "is still a threat to abduct her son," and it deemed her testimony to the contrary "untrustworthy."
The court terminated its jurisdiction, dismissed the case, and ordered that father have full legal and physical custody of the child. The custody order provided: "The mother shall have supervised visits once every other week for 2 hours each visit, to be supervised by a Professional Visitation Supervisor. Costs to be borne by the mother. Visits shall occur in the child's county of residence. Mother must choose professional supervisor from list of providers on website of Santa Clara County Family Court website [sic]. If child lives outside Santa Clara County, mother will choose professional supervisor in child's county of residence & it must be an accredited visitation center." Similar provisions were made for maternal grandparents' visits. The court also ordered that, "[s]hould the father agree to a non-professional supervisor, he has the discretion to allow for that, but the supervisor must be allowed . . . in writing in advance by the father." Mother's counsel did not interpose an objection to the court's order that mother pay for the professional supervisor of her visits or to the court's order providing father with discretion to permit a nonprofessional supervisor. Mother timely filed a notice of appeal.
II. DISCUSSION
" 'When the juvenile court terminates its jurisdiction over a dependent child, [Welfare and Institutions Code] section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court.'" 8 (In re Chantal S. (1996) 13 Cal.4th 196, 203 (Chantal); Welf. & Inst. Code, § 362.4.) "[T]here are situations in which a juvenile court may reasonably determine that continued supervision of the minor as a dependent child is not necessary for the child's protection, and at the same time conclude that conditions on visitation are necessary to minimize, if not eliminate, the danger that visits might subject the minor to the same risk of physical abuse or emotional harm that previously led to the dependency adjudication." (Chantal, supra, at p. 204.) The juvenile court makes these custody and visitation determinations "based on the best interests of the child without any preferences or presumptions." (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) We review the juvenile court's custody orders for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
A. Requirement that Mother Pay the Cost of Professional Supervision
Mother claims that the juvenile court abused its discretion and violated her constitutional rights by requiring her to pay the cost of professional supervision because it was "[u]ncontested" that mother "could not afford to pay" that cost. She asserts that "[t]he record showed that [m]other could not afford a professional supervisor." We conclude that her claim fails because she bases it solely on her bare testimony that she "can't afford it" and her trial counsel's argument based on that testimony, but the record contains substantial evidence that mother could afford to pay these costs.
Mother's trial counsel argued against requiring professional supervision on the basis that mother could not afford it, but she did not expressly object to the requirement that mother pay for the professional supervision. We decline to find forfeiture under these circumstances and proceed to the merits of this contention.
Mother testified at the hearing that professionally supervised visitation should not be required because she "can't afford it" and "I don't know how I would pay for it." However, it was undisputed that mother owned a business (which had reopened after a pandemic closure), managed 10 employees, lived in a three-bedroom house, 9 had repeatedly paid for "very expensive" treatments for her undiagnosed health condition and planned to pay for another such treatment soon, chose to pay "out-of-pocket" for nonrandom drug tests rather than utilize those provided by the Department, and was paying $300 a month to an online counselor rather than taking advantage of the services offered by the Department. Mother was also about to obtain a paralegal degree and had created her own nonprofit organization. This undisputed evidence belied mother's claim that she was destitute and demonstrated that she had substantial funds available that she could use to pay for professional supervision of her visits.
Mother claims that the court's finding at the outset of the dependency case that she could not afford to repay the cost of her legal services necessarily established that she lacked the ability to pay the cost of professional visitation supervision. The court's March 2019 finding, apparently based solely on mother's financial declaration, does not establish mother's true financial resources in July 2020 nor does the court's finding that she could not afford to repay the cost of legal services, which can be quite costly, mean that she cannot afford to pay the modest cost of professional visitation supervision.
The cost of professional visitation supervision was not burdensome when viewed in light of mother's undisputed resources. The juvenile court's order required mother to select a professional supervisor from the list on the family court's website. The Santa Clara County Family Court's website contains a list of providers of professional visitation supervision, and the list identifies the hourly rates for each provider. The current list, which was last revised in May 2021 (<https://www.scscourt.org/documents/fcs_docs/SVP_SCCounty.pdf> [as of Nov. 30, 2021], archived at <https://perma.cc/M82J-6YAD>), reflects that hourly rates for supervision range from $0 (for those eligible) to $150 per hour, with most of the rates falling between $50 and $75 per hour.
Although mother complains that this list is irrelevant because it has been revised since the hearing in this case took place in July 2020, we take judicial notice of 10 this list (Evid. Code, § 452, subd. (d)) solely as a guide to the range of professional visitation supervision costs, which were unlikely to be lower in May 2021 than they were in July 2020. Mother also argues that these rates are irrelevant because father may have moved or may move to Tennessee, where the rates are unknown. It seems unlikely that professional visitation supervision is more expensive in Tennessee than in Santa Clara County. In any case, as the juvenile court expressly told the parties: "I just want the parents to know, particularly the mother, that custody orders are not permanent. They can be changed upon a showing of significant change in circumstances and best interests of the child." If father moved or moves to Tennessee, mother may be able to seek a modification of the custody orders.
Since substantial evidence supported a finding that mother had the financial resources to pay the cost of professional supervision of her visits with the child, the juvenile court was entitled to reject mother's testimony that she "can't afford it." Notably, the court expressly found large portions of mother's testimony to be "untrustworthy" and unbelievable, and we may reasonably infer that the court similarly concluded that mother's bare testimony that she "can't afford" to pay these costs was not credible in light of the other evidence of her financial status. That mother owned a business where she managed 10 employees and could afford to voluntarily pay for "very expensive" treatments, nonrandom drug tests, and online therapy that cost $300 a month supported a finding that mother had funds available to her that she could devote to paying the modest cost of professional visitation 11 supervision, which appeared unlikely to exceed $250 per month. Consequently, we find no abuse of discretion or violation of mother's constitutional rights in the juvenile court's order that she pay these costs.
Mother argues that the juvenile court was required to make express findings concerning her ability to pay these costs, but she cites only cases from North Carolina, where express findings are mandatory. (In re J.C. (2015) 368 N.C. 89; In re E.M. (2016) 249 N.C.App. 44, 57.) She provides no authority for her claim that express findings are required in California, and we see no basis for requiring express rather than implied findings on this point.
We should not be misunderstood to suggest that it would be appropriate for a juvenile court to require a parent to pay the cost of professional visitation supervision if the parent truly lacked the ability to pay those costs. The facts of this case simply did not present such a scenario.
B. Professional Supervision Requirement Itself
Mother maintains that the juvenile court abused its discretion in requiring professional supervision of her visits with the child.
The primary basis for her challenge is that the court "conditioned [m]other's visitation on her ability to pay for professional supervision." As this challenge is answered by our rejection of her premise that she had established her inability to pay these costs, it provides no basis for her attack on the propriety of the professional supervision requirement itself.
Mother also argues that professional supervision was not merited because there was no evidence that professional supervision would address the court's concerns about mother. We disagree. The juvenile court expressly found that mother "is still a threat to abduct her son," and the record amply supports this finding. Mother had abducted the child, attempted to abduct the child, and threatened to abduct the child repeatedly. The court's order that professional supervision be required was clearly designed to address the court's concerns about the child's safety, by providing a structured, supervised environment that would pose a significant barrier to any attempts by mother to abduct the child. Contrary to mother's appellate argument, there was no evidence that mother's family friend would be in a position to stop mother from abducting the child, particularly in light of the fact that maternal grandparents had been unable to stop mother when mother previously abducted the 12 child from their home. Since the juvenile court rejected as "untrustworthy" mother's testimony that she would respect the court's orders and would not abscond with the child, it necessarily also discredited her testimony that she would respect boundaries set by nonprofessional supervisors and would not abscond with the child. The juvenile court did not abuse its discretion in requiring that mother's visits be professionally supervised.
C. Ineffective Assistance
Mother's remaining contention is that her trial counsel was prejudicially deficient in failing to object to the court's order providing father with the discretion to agree to a nonprofessional supervisor. She contends that this was an "improper delegation of judicial authority" to father.
A parent is entitled to competent counsel in dependency proceedings. (In re A.R. (2021) 11 Cal.5th 234, 248.) An appellate ineffective assistance claim requires the parent to establish that counsel's performance was deficient and that it is reasonably probable that a more favorable result would have occurred in the absence of the deficiency. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667.) "Whenever counsel's conduct can be reasonably attributed to sound strategy, a reviewing court will presume that the conduct was the result of a competent tactical decision, and the [appellant] must overcome that presumption to establish ineffective assistance. [Citation.]" (People v. Fromuth (2016) 2 Cal.App.5th 91, 113.) To succeed on appeal, the appellant must establish that "there could be no satisfactory tactical reason for not making a potentially meritorious objection." (People v. Nation (1980) 26 Cal.3d 169, 179.)
Mother contends that her counsel "lacked a rational tactical justification for failing to object because there was no conceivable downside to the objection." She posits that an objection was required because it "could have" caused the juvenile court 13 to eliminate the requirement for professional supervision entirely or to alter the cost provision to require the parents to share the cost or father to bear the entire cost.
Mother's trial counsel expressly asked the court to provide "some leeway for a mutual third party, such as [K.G.] or someone else deemed appropriate, to supervise the visits." (Italics added.) Fulfillment of this request would necessarily mean that father would have the option whether to agree to a particular nonprofessional supervisor. The juvenile court's order permitting father to allow nonprofessional supervision by an agreed third party was entirely consistent with mother's trial counsel's request. Yet mother claims that her trial counsel "lacked a rational tactical justification for failing to object" to the order that she had herself requested. We reject this argument.
Mother's trial counsel could have rationally concluded that the possibility (even if seemingly remote) that father would at some point agree to a nonprofessional supervisor had the potential to benefit mother. In light of the strength of the evidence that professional supervision was necessary, mother's trial counsel could have reasonably concluded that the juvenile court was highly unlikely to reject professional supervision and strategically decided to make this modest request (and not object when it was granted) in the interest of obtaining the best result for her client. Furthermore, an objection to the court's granting of her request was not reasonably probable to result in anything other than the complete foreclosure of any possibility of nonprofessional supervision, even if mutually agreed upon. Despite mother's argument to the contrary, this was a "conceivable downside" to an objection. The record contains no support for mother's claim that it was "just as likely" that the court "would have changed the order to a straight non-professional supervisor instead." The court's serious concerns about the risk that mother would abduct the child, which created the need for professional supervision, were not at all likely to suddenly 14 disappear in the face of mother's trial counsel's objection to the granting of her own strategic request. We reject mother's ineffective assistance claim.
III. DISPOSITION
The juvenile court's orders are affirmed. 15
WE CONCUR: BAMATTRE-MANOUKIAN, J., WILSON, J. 16