Opinion
A158478
05-05-2020
In re L.R. et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. Nos. JD16-3352A, JD16-3352B)
A.R. (mother) appeals from the juvenile court's order denying her request to participate in family team meetings to discuss visitation issues relating to her 15-year-old twin sons L.R. and F.R. We affirm.
Mother has a third child, 16-year-old daughter A.M., who is in a guardianship. A.M. is not a subject of this appeal. The father of A.M., L.R., and F.R. (father) is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
I. The First Two Dependency Cases
This case has a long history, much of which is detailed in our six prior opinions—In re L.R. et al. (Oct. 20, 2010, A127294 [nonpub. opn.]); In re A.M. (Aug. 17, 2016, A146350 [nonpub. opn.]); In re A.M. (Jun. 19, 2017, A149871 [nonpub. opn.]); In re A.M. et al. (Oct. 30, 2017, A151251 [nonpub. opn.]); In re A.M. (April 12, 2018, A153066 [nonpub. opn.]); and In re A.M. et al. (Sept. 6, 2018, A153541 [nonpub. opn.]).
The first dependency case began in 2007 after mother left then-two-year-old L.R. and F.R. and four-year-old A.M. by themselves in a car for at least an hour. Shortly thereafter, mother lost custody of the children after she was arrested for being drunk in public, breaking a wine bottle on father's head, and punching him. Mother did not benefit from services she received during this case and did not progress to unsupervised visits. The case was closed in 2009 when the children were placed in father's custody.
The second dependency case began in 2015 when father engaged in domestic violence of his girlfriend in front of the children. The children were returned to father under a family maintenance plan. During that case, mother missed drug tests, did not benefit from services, and lied and manipulated situations, causing continued detriment to the children. In November 2016, the juvenile court dismissed the case and granted custody of the children to father.
II. The Current Dependency Case
Just two weeks later, on December 5, 2016, San Francisco Human Services Agency (the Agency) filed the third and current dependency petition alleging the parents were unable or unwilling to supervise or protect the children. The petition alleged father beat his new girlfriend while intoxicated and that mother had an extensive child welfare history in which she failed to reunify with the children. The petition alleged mother had a history of mental health, anger management, and substance abuse issues and that her visits were supervised because of her failure to make progress in treatment.
The Agency's jurisdictional and dispositional report detailed mother's continued disregard for visitation rules, her need to attend therapy, and her failure to complete a substance abuse assessment. Mother submitted on the allegations and the juvenile court bypassed services and ordered clinically supervised biweekly visits for her. The children were placed in the home of their paternal relatives; they said they wished to visit their parents but did not want to live with them.
In September 2017, mother filed a petition for modification under Welfare and Institutions Code section 388 (388 petition) seeking reunification services as to A.M. after A.M. changed placement. The juvenile court summarily denied the 388 petition and we affirmed that decision on appeal. (In re A.M. (April 12, 2018, A153066 [nonpub. opn.].)
All further statutory references are to the Welfare and Institutions Code.
At a six-month review hearing, the Agency expressed continued concern about mother's negative and impulsive behavior. Mother also continued to disregard visitation rules and failed to abide by the order that she was to have supervised contact only, which caused the children to feel pressured and anxious about having contact with her.
In November 2017, mother filed another 388 petition seeking unsupervised or overnight visits. The juvenile court summarily denied the 388 petition and we affirmed that decision on appeal. (In re A.M. et al. (Sept. 6, 2018, A153541 [nonpub. opn.].)
At a February 2018 12-month review hearing, the Agency reported that F.R. continued to feel conflicted about—and frustrated with—the various requests for visitation with mother. All three children said they did not want to reunify with mother. The juvenile court scheduled a permanency planning hearing (366.26 hearing) for L.R. and F.R.
On August 21, the Agency filed a 388 petition requesting that the juvenile court suspend mother's visitation with L.R. and F.R. for three months. At the time, mother was visiting with L.R. and F.R. twice a month for three hours at a time in a supervised setting. L.R. and F.R.'s longtime caregiver expressed concern about the impact the visits with mother was having on the children. L.R. was urinating and sometimes defecating at night and had suicidal thoughts. F.R. had become violent towards L.R. Both children were receiving supportive services through Seneca Wrap (Seneca) and were engaged in family therapy. The therapist recommended a temporary pause in mother's visits in order to focus on improving the children's behavior "and to stabilize their placement."
At the 366.26 hearing on August 29, the juvenile court ordered placement with a fit and willing relative as the permanent plan for L.R. and F.R. The court scheduled a mediation session to address mother's visitation, but the mediation was unsuccessful.
On September 26, the Agency filed a second 388 petition seeking to change mother's visitation with L.R. and F.R. to one supervised visit, up to six hours, every other month, plus any phone visits if the children wished to call mother. The juvenile court heard the Agency's 388 petitions and modified the visitation order to allow mother to visit L.R. and F.R. for six hours about every two months.
On February 6, 2019, the Agency submitted a report in preparation for the six-month post-permanency review hearing The Agency reported that L.R. and F.R. were doing well in their placement. As to visitation, the Agency reported that mother's first visit in December 2018 was supervised by A.M.'s guardian and was successful. However, mother was six and a half hours late to her second visit. L.R. and F.R. saw mother for about 40 minutes but the visit was chaotic and traumatic for them as the adults began screaming at each other. A.M.'s guardian declined to supervise any more visits and said mother was no longer welcome in her home. The Agency recommended that mother's visits be reduced to three hours. The juvenile court adopted that recommendation and scheduled another review hearing for August 29.
The Agency stated in an August 2 status review report that mother had not maintained communication with the Agency to coordinate the rescheduling of a July visit. The Agency was also exploring individual visits for the after L.R. said he no longer wanted to visit mother because she paid more attention to F.R. during visits. The Agency reported that father had not been involved in the case. In its new case plan, the Agency stated it would explore the possibility of a guardianship for L.R. and F.R. with the current caregiver and/or another responsible adult. The new case plan stated, "The parents are not part of the case plan."
L.R. and F.R.'s Court Appointed Special Advocates (CASA) representatives also submitted reports for each of the children in preparation of the status review hearing, detailing the contacts they had with the children over the years. L.R.'s CASA representative reported that L.R. felt ignored during visits with mother because she gave more attention and gifts to F.R. and also dominated their interactions. F.R.'s CASA representative reported that F.R. was generally open to occasional visits with mother. F.R.'s CASA representative also reported that Seneca held monthly team meetings that took place at L.R. and F.R.'s placement; the CASA representative had attended several meetings.
Mother arrived late to the August 29 status review hearing. Mother's counsel said mother wished to work with the Agency in rescheduling the missed visit, and the juvenile court instructed the parties to "work that out." Minor's counsel agreed the visit should be rescheduled and also commented on father's visits, stating, "hopefully visits with each parent will resume." The court responded, "Okay. Well, I hope you can take a few minutes and talk outside after court to discuss this and see if you can work something out." Minor's counsel responded, "We also have a family team meeting today with the Seneca team and that will be a topic." The court responded, "Okay, that's good then."
Mother and her counsel then asked for "phone calls with the boys," and when the juvenile court said that issue could also be discussed at the family team meeting, mother and her counsel asked whether mother could be invited to the meeting. Minor's counsel said, "No, I don't think so." Minor' counsel also addressed mother's request for phone contact, stating, "And phone calls and all contact was the issue of an approximately six-month long 388 petition that resulted in the most recent visitation order." Counsel said she could talk to the children about it but noted they previously declined phone contact. At that point, the Agency's counsel said it would be "best to leave the visitation order as it is," and the court stated, "Yes, let's resume the visitation and get that on board before we go overboard." The court stated it had read the report and ordered that the children remain in their current placement. At the end of the hearing, mother's counsel asked the court to "instruct the Agency to allow her to participate in the family team meeting today." The court responded, "No, I will not. I don't have enough background on the case." Mother asked, "How about the next?" The court again declined, stating, "I don't know enough about it."
DISCUSSION
Mother contends the juvenile court erred in denying her request to participate in Seneca family team meetings. She first argues the order was not supported by substantial evidence because it "was not based on evidence in the record." She argues, "Instead, it was based on the juvenile court's stated lack of . . . information." She argues the court's denial of her request without substantial evidence was "arbitrary in nature" and therefore also an abuse of discretion. We disagree.
The court issued this order at a status review hearing held under section 366.3, which provides that a status review must be held at least every six months where a child has been placed in long-term foster care so that the court can "determine whether or not reasonable efforts to make and finalize a permanent placement for the child have been made." (§ 366.3, subd. (d).) --------
It is settled that a juvenile court's findings must be supported by substantial evidence (In re Tania S. (1992) 5 Cal.App.4th 728, 733) and must not be " ' "arbitrary, capricious, or patently absurd" ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318). Mother presented no background information, evidence, or legal argument to the juvenile court to support her request to participate in family team meetings. Instead, she spontaneously asked to attend the meetings when minor's counsel mentioned one was going to take place later that day. She did not present any information regarding the meetings or whether she had ever participated in them, and raised no argument as to why she was entitled to attend. Under these circumstances, the court understandably stated it did not have enough "background" and did not "know enough about it" to grant her request. In light of mother's failure to present any evidence or argument in support of her request, the court did not err in denying it.
Mother also raises a constitutional argument. Although the argument is not entirely clear, she appears to argue that the juvenile court violated her constitutional right to be heard on the issue of visitation because the court precluded her from attending family team meetings at which she could have advocated for certain changes in visitation—namely, adding phone call visits.
We reject mother's constitutional argument. In M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1180-1181, we observed that different levels of due process protection apply at different stages of the dependency proceedings, and that a parent's due process rights at a hearing under section 366.3 after reunification services have been terminated are more limited than they are in the initial phases of dependency proceedings when family preservation is the primary focus. Here, the record shows the juvenile court sufficiently entertained mother's request to attend family team meetings, as well as her request to have phone call visits with L.R. and F.R. As noted, after mother made her requests, minor's counsel reminded mother and informed the court that mother was not welcome at the family team meetings, and that all issues relating to contact, including phone contact, had already been fully addressed and decided after lengthy proceedings on the Agency's 388 petitions. Thereafter, the court declined to make any changes to the prior order and agreed with the Agency's counsel that "it's best to leave the visitation order as it is."
To the extent mother is arguing she was entitled to a contested hearing, we note the proper procedure for mother to request a change in the visitation order was a 388 petition, in which she would have been required to demonstrate a prima facie case—that new evidence or changed circumstances exist and the proposed change would promote the children's best interests—before the court would have been required to hold a hearing. (In re Edward H. (1996) 43 Cal.App.4th 584, 592-594.) Here, mother did not file a 388 petition and did not present any evidence or argument to support her request for a change in the visitation order. Thus, she was not entitled to a hearing, and the court did not violate any constitutional right.
Finally, if there were error, we would conclude mother has failed to show prejudice as there is nothing in the record to indicate that her attendance at family team meetings or a hearing on any visitation issues would have resulted in increased contact or visits. Based on the record before us, which includes multiple dependency cases since 2007, mother's repeated failure to follow visitation rules, the negative impact of some of the visits on the children, the court's thorough evaluation of mother's visitation on numerous occasions throughout the years, and the children's need for stability in their lives, there is no reason for us to believe mother would have met her burden to demonstrate it was in L.R. and F.R.'s best interests to have increased contact with her, especially at this stage in the proceedings. Hence, if there were any error it would be harmless under any standard.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Fujisaki, J.