Opinion
A158063
05-22-2020
In re Caden C., A Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CHRISTINE C., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD15-3034)
In February 2018, at the conclusion of a permanency planning hearing held pursuant to section 366.26 of the Welfare and Institutions Code, the juvenile court found Caden C. adoptable but declined to terminate parental rights, citing the beneficial relationship between Caden and his mother, Christine C. (mother). We reversed, holding that the juvenile court had abused its discretion in concluding, on these facts, that the strength and quality of Caden's relationship with mother in a tenuous placement outweighed the benefits of a permanent adoptive home. (In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839 (Caden C.).) The matter is currently pending before the Supreme Court, which will consider the proper scope of the beneficial parental relationship exception to adoption. (Ibid.) In the meantime, the juvenile court reduced mother's visitation with Caden in July 2019 from monthly to once every other month due to ongoing conduct by mother that was reportedly destabilizing the minor's placement. Mother appeals, challenging this decision as both unsupported by the evidence and an abuse of the juvenile court's discretion. Seeing no error, we affirm.
All section references are to the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
A. Prior Proceedings
A detailed history of these extended juvenile dependency proceedings can be found in our prior opinions in this matter, and we will not repeat it here. (See Caden C., supra, 34 Cal.App.5th 87; C.C. v. Superior Court (Aug. 28, 2017, A151400) [nonpub. opn.] (C.C.).) Suffice to say that, during mother's 30-year history with the child welfare system, all six of her children have been removed from her care due to her chronic substance abuse, neglectful conduct, and involvement in domestic violence. (Caden C., at p. 92.) Caden, mother's youngest child, was initially removed in September 2013 at the age of four. (Id. at pp. 92-93.) By the January 2014 dispositional hearing in the case, mother had entered residential treatment and "engaged with the program in earnest." (Id. at p. 94.) As a result, Caden was returned to her care in July 2014 under a family maintenance plan. (Id. at p. 95.) While Caden was detained, he had been placed in the foster home of C.H. (Ms. H.), who was credited with " 'stabilizing Caden's mental, physical, and emotional health.' " (Id. at p. 94.)
Unfortunately, Caden was detained a second time on June 9, 2016, by the San Francisco Human Services Agency (Agency) after mother relapsed on methamphetamine and failed to engage in court-ordered services. (Caden C., supra, 34 Cal.App.5th at p. 95.) Caden was shuttled between different foster families and was eventually placed back in the foster home of Ms. H. (Id. at pp. 96-98.) Given that mother had already received 28 months of child welfare services, the Agency recommended permanency planning for Caden. (Id. at p. 96.) In May 2017, the juvenile court adopted the Agency recommendation and set a permanency planning hearing for the minor. (Id. at p. 98.)
Although Caden had initially been detained with Ms. H., she had requested that the minor be removed from her home because " 'mother's poor boundaries and impulsive behaviors were emotional[ly] exhausting for the caregiver.' " (Caden C., supra, 34 Cal.App.5th at p. 96.) Two subsequent foster families, while initially interested in providing a permanent home for Caden, also requested that he be removed from their care due to mother's disruptive behaviors. Under the circumstances, Ms. H. agreed to take Caden back for the summer of 2017. (Id. at pp. 96-98.)
Mother filed a writ petition, and, in August 2017, we affirmed the juvenile court's setting order. (C.C., supra, A151400.)
The permanency planning hearing was held over several days in January and February 2018. Ms. H. expressed interest in adopting the minor. (Caden C., supra, 34 Cal.App.5th at p. 98.) The Agency expert, Dr. Lieberman, recommended adoption by Ms. H. as the best placement decision for Caden. (Id. at p. 100.) In particular, Dr. Lieberman opined that "any placement other than adoption would pose 'an unacceptable risk' to the minor's well-being, given mother's 'continued emotional instability and damaging behaviors.' " (Id. at p. 101.) Mother's bonding expert, in contrast, opined that Caden had an " 'undeniable positive bond' " with mother from which he derived " 'substantial emotional sustenance and benefits.' " The bonding expert "found it likely that a loss of contact with mother would be traumatic and have a harmful effect on Caden." (Id. at pp. 101-102.)
At the conclusion of the permanency planning hearing, the court found the minor adoptable but declined to terminate parental rights due to mother's beneficial relationship with Caden. (Caden C., supra, 34 Cal.App.5th at pp. 98, 102, 109.) Ms. H., however, was unwilling to accept legal guardianship of Caden due in part to "concerns her family would not be able to handle mother's ongoing demands regarding visitation and phone contact" and her worry that "mother would continue to use the court process in ways that would disturb Caden's emotional stability in his placement." (Id. at p. 102.) The juvenile court thus ordered a permanent plan of long-term foster care for the minor, a decision from which both the Agency and minor's counsel appealed. (Id. at pp. 102-103.) As stated above, we reversed the juvenile court's decision to forgo adoption for Caden and the matter is currently pending before the Supreme Court. B. Postappeal Review Hearings
In September 2018, while the appeals were pending in this court, the juvenile court held a six-month postpermanent plan review for Caden. Caden was happy to be back living with Ms. H. and was integrated into the family. Ms. H. was reconsidering becoming Caden's legal guardian. Caden reported liking school and having several friends there. He was engaged in numerous extracurricular activities. Caden was also attending weekly therapy with Sandra Hirshfield. He liked seeing her, and the two reportedly had developed a strong therapeutic relationship.
Caden was also having consistent monthly visitation with mother. While generally positive, there were some concerns regarding disruptive and sometimes inappropriate gift giving. Although mother had agreed to provide gifts only on birthdays and Christmas, she was not complying with this arrangement, which frustrated Ms. H. In addition, mother often gifted items on special occasions which Ms. H. deemed inappropriate, such as violent video games, a bow and arrow, a drone which cut Caden's leg during play, and a developmentally advanced motorized scooter. Ms. H.'s concerns regarding these gifts caused conflict with the minor, who would become resentful and state " 'well my mom lets me play with it.' "
Caden's court-appointed special advocate (CASA) described the "tender and loving" relationship between Caden and Ms. H. and recommended that the placement continue. While Caden reported to his CASA that he missed mother and looked forward to seeing her, he also stated that he would like to stay with Ms. H. because he knew she loved him and his other placements were "scary." The court continued Caden in long-term foster care with a goal of legal guardianship.
In November 2018, the Agency requested an order for medication to help Caden with attention deficient hyperactivity disorder (ADHD) on the recommendation of his treating pediatrician. Mother opposed the request, citing the minor's familial history of addiction and concerns regarding possible side effects. She indicated a desire to have Caden switch back to his prior therapist so that he could receive "effective therapeutic support." The juvenile court granted the medication request in December 2018.
In advance of the minor's March 2019 postpermanent plan review, the Agency was receiving positive reports regarding Caden's progress since starting his ADHD medication. In addition, Caden continued to state on multiple occasions that he enjoyed attending therapy with Ms. Hirshfield, and Ms. H. had observed positive emotional and behavioral changes in the minor since he had begun therapy with her. Caden, for example, had gone almost a year without making any self-harm statements. The Agency did not recommend disrupting their therapeutic relationship.
Mother consistently attended monthly visits with Caden, which both parties seemed to enjoy. Mother, however, still frequently sent Caden home with a craft or a small toy which sparked conflict with his siblings in the foster home. Mother also reportedly talked to Caden regularly about his therapist and medication in an apparent attempt to sway his opinions on those subjects. While Caden generally gave positive feedback regarding his therapist and medication, he came home from visits expressing different opinions and, on one occasion, was reluctant to take his medication the next day.
The Agency reported having many conversations with mother where her rapid speech and disorganized thoughts were concerning and suggested ongoing mental health and possible substance abuse issues. Moreover, during this review period, mother had asked to attend Caden's soccer games and had requested permission to communicate with his caregiver. After speaking with Ms. H., the Agency agreed that mother could attend one soccer game on a trial basis and could also have some communication with Ms. H. Unfortunately, mother sent demanding and hostile texts to Ms. H.—apparently upset that she was initially allowed to attend only one game—and stated she would not attend at all. More recently, Ms. H. reported receiving multiple calls from a blocked number. When she answered one, mother spoke with her for 30 minutes trying to convince her to do a guardianship with Caden rather than pursue adoption.
Given the conflicts around Caden's visitation and the history of hostile communications from mother, Ms. H. no longer contemplated guardianship of the minor because it would require regular contact with mother. She was, however, still interested in adopting Caden. The Agency expressed concern that, although Ms. H. clearly loved Caden, mother's behavior toward the caregiver could disrupt the minor's permanency in her home. Noting that Caden had been in foster care for many years and was thriving in his current placement, the Agency recommended that a section 366.26 hearing be set so that the juvenile court could again consider adoption as Caden's permanent plan.
At the six-month review in March 2019, the juvenile court denied a request from mother for increased visitation and continued the matter on the permanency issue. At the continued hearing on April 9, the court set a new permanency planning hearing for July 31, 2019. That same day, we issued our opinion reversing the juvenile court's February 2018 decision to forgo adoption for Caden based on his relationship with mother. The Supreme Court granted review in July. (See Caden C., supra, 34 Cal.App.5th 87.)
Agency reports filed in connection with the pending section 366.26 hearing indicated that mother's visitation continued to impact Caden's placement stability and permanency. At the May 2019 visit, mother gave Caden her email address and Facebook account information and stated he could email her. The visit supervisor reminded Caden after the visit that it was against the rules to contact mother in this way. At the June birthday visit, mother brought Caden a Chromebook, a bicycle, and a bag of toys, helping him to set up a Google account so that he could start using the computer. The visit supervisor reminded mother that she was not authorized to contact Caden via the internet. The Chromebook became an issue in the foster home because house rules restricting internet access turned Ms. H. into the " 'bad guy' " for enforcing those rules.
When Caden told mother at the July visit that he was not allowed to use the Chromebook, mother became upset. The visit supervisor suggested the issue not be discussed during visitation, to which mother replied that "she could say anything she wanted to Caden." Later, mother asked the visitation supervisor to back off and then remarked that if she wanted Caden to hear something she would just whisper. The visit ended with mother giving Caden a video game, saying it was permitted because it was from a previous gift. Ms. H. later had to return the game to the visitation supervisor. Ms. H. expressed frustration at mother's continual violation of the visitation rules and reported that Caden's attitude after visits was that he did not need to follow the house rules. When consulted, the minor's therapist and Dr. Lieberman both recommended that visits be reduced and conducted in a more contained environment to lessen their impact on Caden.
At the hearing on July 31, 2019, Agency counsel acknowledged that further permanency planning should be placed on hold pending the Supreme Court's decision with respect to the prior appeal, and the court set a date for a progress report. Based on the evidence presented, however, Agency counsel asked for an order reducing mother's visitation to once every other month with conditions that she not bring any gifts, not discuss any aspect of the case, and not provide any further means of contact to Caden. Minor's counsel supported this request, arguing that maintaining Caden's current placement was "paramount" to Caden's best interests. Mother's attorney objected, arguing that mother and son both enjoyed the visits, that mother's attempt to file a future modification petition would be severely handicapped by a reduction in contact, and that mother was willing to refrain from any behaviors that would jeopardize the frequency of her visitation.
Mother interrupted the proceedings several times, citing her right to due process and stating that she gave Caden a laptop because he wanted one and that she would give him "anything, anything he wants because he deserves that." The court stated that the visitation issue was "immediate and important" to Caden "because what is key is not just his well-being today and tomorrow but the permanency and the ability to stay in this home, which by all accounts is a good place for him. It is a good placement and one that is currently in jeopardy because of what Mother has been doing." It then granted the Agency's request to reduce mother's visitation to every other month, finding "as illustrated by Mother's outbursts here in court" that "it is highly unlikely that Mother is going to be able to follow the rules no matter what they are and however she is admonished by the Court." Mother declared she would file an appeal from the court's decision, and has done so.
II. DISCUSSION
During the reunification period in dependency proceedings, there is a statutory presumption that parent-child visitation "shall be as frequent as possible, consistent with the well-being of the child. " (§ 362.1, subd. (a)(1)(A); see In re D.B. (2013) 217 Cal.App.4th 1080, 1090 (D.B.).) Such a presumption is appropriate in the reunification context in order to "maintain ties between the parent . . . and the child" and to "provide information relevant to deciding if, and when, to return a child to the custody of his or her parent." (§ 362.1, subd. (a).) Parent-child "[v]isitation during the postreunification period, however, is governed by different statutes, which focus on permanency and stability for the child." (D.B., at p. 1090.) Here, for example, the juvenile court authorized mother's continued visitation with Caden at the 2018 permanency planning hearing under the authority of section 366.26. Pursuant to that statute, when a dependent child is placed in long-term foster care, "[t]he court shall also make an order for visitation with the parents . . . unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child." (§ 366.26, subd. (c)(4)(C).)
"Visitation orders in dependency cases are typically reviewed for abuse of discretion" and will not be reversed "absent a 'clear showing' " of such abuse. (In re J.P. (2019) 37 Cal.App.5th 1111, 1119; see In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558 ( S.H.) ["dependency law affords the juvenile court great discretion in deciding issues relating to parent-child visitation, which discretion we will not disturb on appeal unless the juvenile court has exceeded the bounds of reason"].) Division Three of this Court has applied the abuse of discretion standard in review of a juvenile court's postreunification decision to reduce parental visitation. (S.H., at pp. 1557-1559; see D.B., supra, 217 Cal.App.4th at pp. 1092-1094 & fn. 7 [reviewing postreunification termination of visitation for abuse of discretion].) We agree with S.H. that postreunification visitation orders should be reviewed under the abuse of discretion standard, and we find no abuse on this record.
Some courts have reviewed visitation orders for substantial evidence or have applied a blended standard of review. (See In re T.M. (2016) 4 Cal.App.5th 1214, 1219 (T.M.) [discussing cases].) However, like the D.B. court, "we question whether the two standards are so different in this context." (D.B., supra, 217 Cal.App.4th at p. 1092, fn. 7.) Regardless, we would find no error under any articulation of the standard.
On appeal, mother contends that the juvenile court's visitation order impermissibly interfered with her constitutionally protected parental rights. However, she relies largely on cases that address visitation orders prior to permanency planning, when, as we have discussed, visitation must be safeguarded because the focus of the proceedings is to promote reunification of children with their parents. (See, e.g., T.M., supra, 4 Cal.App.5th at p. 1218 [termination of visitation at dispositional hearing]; In re C.C. (2009) 172 Cal.App.4th 1481, 1487 [same]; In re Julie M. (1999) 69 Cal.App.4th 41, 50 [visitation order at six-month review in reunification case].) Mother's claim loses its force in the postreunification period where "the parents' interest in the care, custody and companionship of the child [is] no longer paramount . . . [and] 'the focus shifts to the needs of the child for permanency and stability.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
Undoubtedly, parents continue to have some interest in their child's dependency proceedings unless and until their parental rights are terminated. (See § 366.3, subd. (f); see also In re J.F. (2011) 196 Cal.App.4th 321, 335-336 [parent of child in long-term foster care has the right to participate in postpermanency review hearings].) But in the postpermanency context, the juvenile court "must turn its focus to the child's best interests, rather than the parent's, in deciding issues that may arise." (S.H., supra, 197 Cal.App.4th at p. 1559; see Stephanie M., supra, 7 Cal.4th at p. 317.) Thus, whether mother may be hampered in her ability to file a successful modification petition in the future by a reduction in visitation is largely beside the point. The juvenile court recognized this when it stated that the visitation issue was "immediate and important" to Caden and thus could not await resolution of future court proceedings.
Mother's assertion that there was no evidence Caden's placement was "increasingly at risk" from her "questionable conduct," which she maintains was "nothing new," is belied by the record. Caden had once been removed from Ms. H.'s home due to mother's impulsive behaviors and inability to respect boundaries. The second time around, Ms. H. had become increasingly frustrated with mother's continuing failure to follow the rules, and she had rejected guardianship as an option because it would require ongoing contact with mother. In short, the concerns which had prompted the Agency to recommend adoption for Caden at his first permanency planning hearing in 2018 had largely proven justified. Under the circumstances, both the Agency's opinion and the court's conclusion that Caden's placement was in jeopardy by mother's behaviors were amply supported.
Mother also contends that the juvenile court failed to consider the negative impact on Caden from a reduction in visits and asserts that the visitation problems could have been ameliorated by an increase in structure and supervision and the issuance of a restraining order. Caden, however, had previously handled a reduction in mother's visitation with no ill effects. (Caden C., supra, 34 Cal.App.5th at pp. 98-99.) On this record the court could reasonably conclude, as did Caden's own attorney, that the minor's stability in placement was paramount to his best interests, even if he would miss seeing mother every month. Moreover, the record also supports the court's conclusion that mother was "highly unlikely" to follow the rules "no matter what they are." Thus, it was reasonable to conclude that the only way to reduce the pressure on Caden's placement was to make his interactions with mother less frequent.
Mother finally argues that the juvenile court erred in reducing her visitation with Caden without making a detriment finding. It is not clear, however, that a detriment finding was required. As stated above, section 366.26, subdivision (c)(4)(C) commands a juvenile court to "make an order for visitation with the parents" when a child is placed in long-term foster care "unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child." At least one court has construed this statute as requiring a finding of detriment only "before the juvenile court is authorized to deny visitation; not before the juvenile court is authorized to modify a term of a previous order granting visitation." (S.H., supra, 197 Cal.App.4th at p. 1558 [upholding post-permanency reduction of parental visitation to twice a year for two hours to protect child's placement from "unnecessary disruption" by the mother].) Even if a detriment finding was necessary, one can be implied from the record for the reasons we have discussed.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Margulies, Acting P.J. /s/_________
Banke, J.