Opinion
H051514
01-26-2024
A.E., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent, COUNTY OF SANTA CLARA DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED
(Santa Clara Super. Ct. Nos. 16JD023833; 16JD023834; 17JD024452; 21JD026909)
ADAMS, J. [*]
A.E. (Mother) has four children who have been adjudged dependents of the juvenile court: L.S., born in 2012; J.S., born in 2015; C.F., born in 2017; and S.F., born in 2021. The children were taken into protective custody in April 2021 due to Mother's drug use, reports that she had physically abused the children, and domestic violence between Mother and the father of C.F. and S.F.
We will refer to the father of L.S. and J.S. as Father S. and to the father of C.F. and S.F. as Father F. Neither are a party to this writ proceeding.
In October 2023, the juvenile court found that returning the children to Mother's care would be detrimental and terminated her reunification services. The court also scheduled a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26 for February 14, 2024.
Further undesignated references are to the Welfare and Institutions Code.
Mother now petitions for an extraordinary writ. (Cal. Rules of Court, rules 8.452, 8.456.) She argues there is insufficient evidence that returning the children to her care would create a substantial risk of harm to them. She also asserts the department failed to provide reasonable reunification services.
We disagree with Mother on both points. Thus, for reasons we will explain, we deny Mother's petition.
I. Factual and Procedural Background
In June 2021, the juvenile court sustained section 300 petitions for all four children, finding true allegations of physical harm and serious emotional damage because of the children's exposure to substance abuse, physical abuse, and domestic violence. (§ 300, subds. (b)(1), (C).) As to S.F., the court also sustained an allegation that the abuse of his siblings created a substantial risk he would be abused. (§ 300, subd. (j).) The court adjudged the children dependents and found parental custody detrimental to their well-being. Reunification services were ordered for Mother, including a parenting without violence class, a conflict and accountability course, individual therapy, a domestic violence support group, a substance abuse assessment, drug and alcohol testing, and a 12-step program. For visitation, the court ordered that Mother could have at least two supervised visits each week with L.S., J.S., and C.F., and at least three visits each week with S.F.
Mother participated in services after the juvenile court's order. By December 2021, Mother completed the parenting without violence class, started attending Narcotics Anonymous (NA) meetings, and was participating in individual therapy and a domestic violence support group. She was also in an outpatient treatment program for drug abuse and was testing negative for all substances. The department recommended that Mother continue to receive reunification services but advised the court in an addendum report that Mother and Father F. had been involved in a domestic violence incident in November 2021, during which Father F. punched Mother in the face. Father F. was arrested after the incident and the criminal court issued a protective order prohibiting any contact between Father F. and Mother.
Before the 12-month review hearing, Mother had changed therapists to focus on processing trauma and had attended all sessions of the domestic violence support group and the conflict and accountability course. She continued to attend NA meetings, had a sponsor, and completed an aftercare drug treatment program. However, Mother's record of drug and alcohol testing was inconsistent-she missed 17 tests between November 2021 and May 2022-and she admitted using methamphetamine in February 2022. Mother also told the social worker that, in contravention of the protective order, she spoke to Father F. on the phone in January 2022 while he was still incarcerated.
Mother maintained consistent visitation with the children, and the department noted that Mother was appropriate and engaged with the children during the visits. As of June 2022, Mother had four visits per week: one with all four children, one therapeutic visit with L.S. and J.S., and two additional visits with C.F. and S.F. During one of the therapeutically supervised visits, J.S. told Mother: "I love you, but I don't want to live with you." Mother admitted that she tended to minimize the children's feelings stemming from their past exposure to domestic violence because they were "too painful to acknowledge."
At the 12-month review hearing in June 2022, the juvenile court ordered that Mother continue to receive reunification services but that services for Father S. and Father F. be terminated. As an addition to her case plan, the court ordered that Mother participate in family therapy with the children "when deemed appropriate by [Mother's] individual therapist and the children's therapist."
A. 18-Month Review Hearing
In October 2022, the department recommended that the juvenile court terminate Mother's reunification services with all four children. Although Mother remained engaged in individual therapy, her progress had stalled. Her new therapist reported that Mother had trouble empathizing with the children and understanding their trauma. The therapist opined that family therapy with the children would require a "really strong therapist that could hold boundaries" with Mother, with a focus on reconciliation and Mother "being able to see things from the children's perspective and not [Mother] trying to get the children to see things from her perspective."
Mother had increased her attendance at NA meetings and was compliant with drug and alcohol testing. Mother also continued to consistently visit the children, but J.S. told the social worker she did not enjoy the visits and attended them only to watch over C.F. and S.F. C.F. asked not to have any additional visits with Mother.
The department believed that while Mother made progress in her case plan, she had only recently made positive behavioral changes. According to the department, Mother was still "unpacking" her own feelings about her past relationships and was unable "to process the impact of this trauma on her children." In support of the recommendation to terminate Mother's services, the department observed that Mother had received 42 months of informal and formal services but had not yet demonstrated a permanent shift in her lifestyle or in her ability to process trauma. Mother objected to the recommendation and the court scheduled a contested hearing.
Mother was provided services in connection with two prior dependency cases involving L.S., J.S., and C.F. In 2016, L.S. and J.S. were taken into protective custody due to Mother's drug use and domestic violence between Mother and Father S. In 2017, C.F. was born and also removed from Mother. The juvenile court sustained section 300 petitions for all three children but ordered them returned to Mother's custody in October and December, 2017, after Mother received reunification services for 18 months. In 2019, the juvenile court sustained section 300 petitions for L.S., J.S., and C.F. after they were exposed to a domestic violence incident between Mother and Father F. The court dismissed the dependency case but ordered informal supervision by the department, through which Mother received informal services for seven months.
In early December 2022, the department modified its recommendation and requested that the juvenile court continue the review hearing pursuant to section 352 so that Mother and the children could continue to receive services. Since October 2022, Mother had made further progress with her case plan and her visitation with the children was changed from supervised to monitored. The department believed that a period of family therapy, which was soon to commence, would better inform the assessment of whether reunification was possible.
Under section 352, the juvenile court may, upon a showing of good cause, continue any hearing beyond the statutory time limit so long as the continuance is not contrary to the interest of the child. (§ 352, subd (a).)
At the 18-month review hearing on December 14, 2022, counsel for the children objected to the department's section 352 continuance request. The juvenile court found that good cause existed for the continuance given Mother's effort toward her case plan and granted the request. The court then scheduled the case for a combined 18-month/24-month review hearing.
B. Contested 18-Month/24-Month Review Hearing
Before the combined review hearing, the department filed updated reports in which it recommended that the juvenile court terminate Mother's services with all four children and schedule a hearing pursuant to section 366.26 to select a permanent plan. The department stated that Mother's participation in NA had decreased, and she had missed drug and alcohol tests. She tested positive for methamphetamine in June 2023 and was dropped by her sponsor. The sponsor told the social worker that Mother "was not doing well." In addition, Mother had not made any additional progress processing her trauma through therapy and the department was concerned she was not maintaining boundaries to protect herself from Father F.
The department reported that family therapy with L.S. and J.S. had not started because the children refused to participate. C.F. had six family therapy sessions with Mother, but C.F. told the social worker in March 2023 that she wanted to continue living with her foster parents and no longer wanted to attend therapy with Mother. Regarding visitation, L.S. and J.S. had declined all visits with Mother since November 2022, and C.F. had declined several visits. Mother's visitation with C.F. and S.F. was no longer subject to supervision or monitoring, but the department was concerned that Mother was not properly feeding S.F., who had been diagnosed with oral dysphasia and pediatric feeding disorder. S.F. also resisted visits with Mother and became dysregulated both before and after the visits.
The social worker asked L.S. how she would feel if returned to Mother's care, to which L.S. responded: "I'm not going . . . whether you like it or not." When the social worker asked J.S. the same question, J.S. said she would "be mad at everyone . . . mad at the world" and had an "escape plan." L.S. said that nothing could be put in place to make her feel safe with Mother.
Mother notified the social worker in August 2023 that she was pregnant but would not identify the father because she was worried the child would be removed. Although Mother indicated the father was not Father F., the department was nonetheless concerned due to Mother's history of selecting partners who were perpetrators of domestic violence. Mother gave birth to the child on September 22, 2023.
Mother objected to the department's recommendation to terminate services and the juvenile court set a contested hearing over three days in September and October 2023.
1. Foster Mother's Testimony
The children's foster mother, Sandi H., testified on the first day of the hearing. The children had lived with Sandi H. for approximately two and a half years and she stated that, in her opinion, it was in the children's best interest to remain in her care. She observed each child experiencing "underlying issues that may not have been solved," which she termed "triggers." L.S. and J.S. reported to her that during visits with Mother, they would "try very hard to speak up and to say what was on their mind," but that Mother "would consistently tell them that those were things that had never happened, that their memories were wrong," and that "they were making things up." Sandi H. said this made L.S. and J.S. feel "invalidated," but she still encouraged the children to visit Mother.
2. Social Worker's Testimony
The social worker testified that returning the children to Mother would not be in their best interests and described the risks to the children if that were to occur. She noted Mother's positive drug test from June 2023, and stated the department was concerned about Mother's ability to keep the children safe given her history of receiving services related to substance abuse and domestic violence over several years but not making sustained changes. The department was also concerned that Mother would expose the children to the still-unidentified father of Mother's newborn baby, and that Mother could not understand and address the children's emotional needs, especially since L.S. and C.F. had been diagnosed with post-traumatic stress disorder (PTSD) and J.S. had been diagnosed with stress reactive disorder.
The social worker related that in conversations with L.S. and J.S. about returning to Mother's care, the children were adamant that nothing could be implemented to make them feel safe and stated that Mother had not changed. C.F. continued to decline visitation even after the social worker explained to her that she could visit Mother but not want to live with her. The social worker suggested to Mother that she could write letters to the children as an alternative to visitation, but she was not aware that Mother had written any letters.
When asked about S.F., the social worker testified that he had lived with the foster parents for most of his life and had a close relationship with his siblings. She opined that separating S.F. from his siblings and returning him to Mother would be "very traumatic" for S.F. and emotionally difficult for the other children.
3. Mother's Testimony
Mother stated she loved the children and would like them returned to her care.
She testified that she learned how to keep the children safe, and recognized she needed to listen to them and respect their feelings. She had a safety plan to protect herself from Father F. and had contemplated how to avoid another relationship involving domestic violence.
During her testimony, Mother refused to identify the father of her newborn baby. She explained that since the father asked not to be involved in the child's life, she did not believe his identity was important. However, Mother understood that the father could change his mind and seek to become involved with the child at any time.
Mother did not believe the foster parents did enough to encourage L.S., J.S., and C.F. to attend visits. Mother acknowledged that L.S. and J.S. did not want to see her or be reunified, but she believed the children could overcome those feelings through family therapy. She thought if the children saw "the full picture" that they would "have some type of empathy" other than what "seems to be hatred" towards her. As far as maintaining contact with the children short of visitation, Mother made a picture book for L.S. and sent pictures to the children but had not written letters to them because she felt discouraged.
4. The Juvenile Court's Order
The juvenile court issued an oral decision on October 18, 2023. First, the court found that returning the children to Mother would create a substantial risk of detriment to them because Mother had difficulty dealing with the trauma associated with domestic violence. The court pointed out that Mother "seemed like she gave up" once L.S. and J.S. stopped attending visits with her, which made the court "very insecure" about the children in Mother's care since it was "not certain she could handle very well [their] traumatic reactions." The juvenile court described additional concerns, including Mother's positive drug test and her refusal to identify the father of her newborn baby, which in the court's view indicated an "unwillingness to really take responsibility, at least some responsibility, for the abusive relationships" that Mother had in the past. The court also observed that while Mother and S.F. had pleasant visits, Mother "didn't understand his medical diagnosis very well."
Second, the court found by clear and convincing evidence that Mother received reasonable reunification services. The court described the "reasonable efforts that were made," including "assessments in person," "virtual visits that were offered," "family therapy," and "many other programs."
Third, the juvenile court found by clear and convincing evidence there was not a compelling reason for determining that a section 366.26 hearing was not in the best interest of the children. In support, the court explained that all four children were young, healthy, and "generally and specifically adoptable."
Based on these findings, the court terminated reunification services for Mother and scheduled a section 366.26 hearing. Mother filed a notice of intent to file a writ petition on October 20, 2023. She then filed this petition for extraordinary writ and request for stay on December 7, 2023.
II. Discussion
A. Legal Principles and Standard of Review
"California has a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. [Citations.]" (In re Celine R. (2003) 31 Cal.4th 45, 52.) "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time." (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
At both the 18-month and 24-month review hearings, the juvenile court "shall order the return of the child to the physical custody of their parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to their parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§§ 366.22, subd. (a)(1), 366.25, subd. (a)(1).) In making this determination, the court must consider "the social worker's report and recommendations" and "the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which they have availed themselves of services provided." (Ibid.) The burden to establish detriment is on the social worker. (Ibid.)
If the court finds the child should not be returned to the parent or legal guardian, it must schedule a hearing to select a permanent plan under section 366.26 unless "the court finds by clear and convincing evidence . . . that there is a compelling reason . . . for determining that a hearing held under Section 366.26 is not in the best interests of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship as of the hearing date." (§§ 366.22, subd. (a)(3), 366.25, subd. (a)(3).) "The court shall also order termination of reunification services to the parent or legal guardian," and "shall determine whether reasonable services have been offered or provided to the parent or legal guardian." (Ibid.) There is one exception to these mandates: the juvenile court may continue the 18-month review hearing for up to six months if it "determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services." (§ 366.22, subd. (b)(1).) Under those circumstances, the review hearing "shall occur within 24 months of the date the child was originally taken from the physical custody of their parent or legal guardian." (Ibid.)
We review the juvenile court's finding of detriment and its order terminating reunification services for substantial evidence. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1400-1401 (Yvonne W.); J.H. v. Super. Ct. (2018) 20 Cal.App.5th 530, 535.) In so doing, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re A.M. (2020) 47 Cal.App.5th 303, 314 (A.M.).) The appellant bears the burden of showing that a finding or order is not supported by substantial evidence. (Ibid.)
B. Substantial Evidence Supports the Court's Detriment Finding
"The standard for showing detriment is 'a fairly high one. It cannot mean merely that the parent in question is less than ideal, did not benefit from the reunification services as much as we might have hoped, or seems less capable than an available foster parent or other family member.' [Citation.] Rather, the risk of detriment must be substantial, such that returning a child to parental custody represents some danger to the child's physical or emotional well-being. [Citations.]" (Yvonne W., supra, 165 Cal.App.4th at p. 1400.)
"In evaluating detriment, the juvenile court must consider the extent to which the parent participated in reunification services. [Citations.] The court must also consider the efforts or progress the parent has made toward eliminating the conditions that led to the child's out-of-home placement. [Citations.]" (Yvonne W., supra, 165 Cal.App.4th at p. 1400; accord In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.)
Effective January 1, 2024, the Legislature amended sections 366.22 and 366.25 to remove the presumption of detriment from a parent's failure to participate regularly and make substantive progress in court-ordered treatment programs. (Stats. 2023, ch. 714, § 3.) However, decisions regarding detriment "may continue to properly factor in the parent's lack of compliance." (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 463 (2023-2024 Reg. Sess.) as amended Mar. 20, 2023, p. 4.)
Mother argues the juvenile court's detriment finding is not supported by substantial evidence. We disagree because the evidence summarized above supports the court's conclusion that returning the children to Mother's custody would pose a substantial risk of detriment. Although Mother participated in most aspects of her case plan and completed several components of it, she made only incremental progress toward alleviating the issues that led to the children's removal and did not demonstrate sustained positive change. Mother had struggled with substance abuse since she was 16 years old and previously received services to address that issue. During this dependency case, the social worker noted before the first 18-month review hearing that there was an encouraging "shift in [Mother's] sobriety and continued work to address her recovery," and Mother completed outpatient and aftercare drug treatment programs. However, Mother became less engaged toward the end of the reunification period; she attended fewer NA meetings, lost her sponsor, and missed several drug and alcohol tests. At the combined 18-month/24-month review hearing, Mother admitted that she used drugs multiple times throughout the reunification period and tested positive for methamphetamine in February 2022 and June 2023.
Moreover, Mother continued to demonstrate a lack of insight into the trauma inflicted on the children from witnessing several incidents of domestic violence. (See Constance K. v. Super. Ct. (1998) 61 Cal.App.4th 689, 705 (Constance K.) [parent's "limited awareness" of child's emotional needs is relevant to assessing detriment].) In October 2022, Mother's therapist noted that Mother was unable to view the family's circumstances from the children's perspective and instead wanted the children to view their circumstances from her perspective. The therapist's observation was corroborated by Sandi H., who testified that L.S. and J.S. stated that Mother would tell them during visits that certain incidents never happened and would question their memories, making them feel invalidated. It was also corroborated by Mother's testimony, given one year after her therapist first raised the issue. Mother again implied that her relationship with L.S., J.S., and C.F. might improve if they knew "the full picture" and had empathy for her. But as the social worker explained, this expectation was unrealistic and displayed a lack of sensitivity and accountability on Mother's part because children processing their own trauma have difficulty empathizing with an adult's experience. By speaking in terms of what she wanted from the children, Mother was not acknowledging her contribution to the children's emotional difficulties or the reasons they felt unsafe with her. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].)
Nor did Mother show that she could put aside her own feelings for the benefit of the children. The social worker opined that returning the children to Mother would be "an adjustment on many different levels." Mother would have to cope with the symptoms of the children's mental health diagnoses and "a lot of trauma from [the children] having to transition from the foster home to her home." But met with the unwillingness of L.S. and J.S., and C.F. to attend in-person visits, Mother made little effort to maintain contact in other ways because she felt discouraged, even though the social worker suggested that she write letters to the children. As the juvenile court expressly found, this evidence showed that Mother "gave up" and was not equipped to handle the children's "traumatic reactions" if returned to her custody.
Furthermore, Mother's continued reluctance to identify the father of her newborn baby showed that Mother had not gained an appreciation of how her past relationships affected the children. (See Constance K., supra, 61 Cal.App.4th at p. 705 [juvenile court may consider "whether the natural parent maintains relationships with persons whose presence will be detrimental" to the child].) The department was justifiably concerned about the children's safety if exposed to the baby's father given Mother's history of selecting abusive partners and maintaining contact with Father F. despite a protective order. Mother could have assuaged this concern by providing information about the father to the department. Instead, Mother withheld the father's identity and left the safety issue unresolved, which in turn raised a serious question about her ability to safeguard the children from witnessing or experiencing further abuse.
Relying on Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.), Mother contends that because she was a "compliant parent" who had "truly made necessary changes," the juvenile court should not have found a substantial risk of detriment without evidence of "specific harm" to the children. She argues the court's finding was based on speculation because it "bought into the department's fears and placed greater weight in those than it did its own previous findings about Mother's substantial progress, including the documented, concrete changes Mother had made during the reunification period."
We find Mother's argument unavailing for two reasons. First, we are bound by the standard of review, and we cannot say on this record that the juvenile court's detriment finding is not supported by substantial evidence. (See L.Y.L., supra, 101 Cal.App.4th at p. 947; A.M., supra, 47 Cal.App.5th at p. 314 [appellate court must "uphold the court's orders and findings if any substantial evidence, contradicted or uncontradicted, supports them"].) Thus, we do not agree that the court based its decision on speculation by merely parroting unfounded fears, or that a "specific harm" to the children did not exist. In any event, the record simply does not support the predicate factual premise that Mother made "substantial progress" resulting in "documented, concrete changes." It is true that Mother complied with many aspects of her case plan early in the reunification period, but that "is not the sole concern before the dependency court judge.
" (Constance K., supra, 61 Cal.App.4th at p. 704.) Here, the record shows that Mother's level of participation in certain material components of her plan diminished before the combined 18-month/24-month review hearing. Mother also foreclosed any investigation into the father of her newborn baby, tested positive for methamphetamine twice-the second time just months before the review hearing-and still displayed only a superficial appreciation for the children's emotional needs despite attending therapy for 24 months. These enduring issues were not trivial but implicated "important parenting concepts" such as the children's "need for security," "freedom from violence," and proper healthcare. (In re David B. (2004) 123 Cal.App.4th 768, 790.)
Second, Blanca P. is distinguishable. There, the juvenile court found it would be detrimental to return the children to the parents based in part on the social worker's opinion that the parents had not "internalized" what they learned in parenting classes. (Blanca P., supra, 45 Cal.App.4th at p. 1747.) The appellate court described this reason as a "fuzzy notion" that was "simply too vague to constitute substantial, credible evidence of detriment." (Id. at p. 1751.) Unlike Blanca P., no comparable "fuzzy notion[s]" underlie the juvenile court's findings in this case. To the contrary, the court's reasons were based on Mother's testimony and instances of conduct which demonstrated she could not provide a non-detrimental environment for the children.
We also reject Mother's position that the juvenile court should have analyzed the issue of detriment to C.F. and S.F. separately from L.S. and J.S. C.F.'s circumstances were not materially different from L.S. and J.S.; like her older siblings, C.F. declined visits with Mother and displayed symptoms related to trauma. As for S.F., Mother is correct that he was differently situated from the other children in some respects, since S.F. visited Mother and his young age at removal meant he did not have the same history of exposure to domestic violence. These distinctions, however, do not exclude S.F. from the risks involved from Mother's drug use or from contact with another adult-the father of Mother's newborn baby-whom Mother refused to identify. Thus, even if S.F. was not experiencing trauma to the same extent as the older children, the juvenile court's other findings applied equally to him. Additionally, the social worker's testimony describing the negative effects to S.F. from being separated from his siblings supported a reasonable inference that returning S.F. to Mother apart from the other children would place him at risk of emotional harm. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425-1426 [court may consider emotional harm to children arising from separating siblings].)
In sum, we have no doubt that Mother loves the children very much, and she made some strides toward overcoming the issues that led to the dependency. But as of the combined 18-month/24-month review hearing, based on our review of the record, we conclude that substantial evidence showed there remained a serious risk that returning the children to Mother would endanger their physical and emotional well-being.
C. Substantial Evidence Supports the Court's Reasonable Services Finding
"Family reunification services play a critical role in dependency proceedings" and must be "tailored to the particular needs of the family." (Tracy J. v. Super. Ct. (2012) 202 Cal.App.4th 1415, 1425 (Tracy J.).) "To support a finding reasonable services were offered or provided, 'the record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult ....' [Citation.] 'The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.'" (Id. at p. 1426.)
"Visitation is an essential component of a reunification plan. [Citation.] To promote reunification, visitation must be as frequent as possible, consistent with the well-being of the child." (Tracy J., supra, 202 Cal.App.4th at p. 1426.) However, when fashioning a visitation order "the court must focus on the best interests of the children 'and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm specified in section 300.'" (In re Julie M. (1999) 69 Cal.App.4th 41, 50 (Julie M.).) "This includes the 'possibility of adverse psychological consequences of an unwanted visit between [parent] and child.'" (Ibid.)
Although we review a finding regarding reasonable reunification services for substantial evidence, it is unclear whether the clear and convincing evidence standard applies when such a finding is made at the 24-month review hearing. In contrast to the statutes governing 12-month and 18-month review hearings, section 366.25 does not explicitly specify that the juvenile court must find the reasonable provision of services by clear and convincing evidence at the 24-month review hearing. (Compare § 366.25, subd. (a)(3) [at 24-month review, the court "shall determine whether reasonable services have been offered or provided"] with § 366.21, subd. (f)(1)(A) [at 12-month review, the court "shall . . . determine by clear and convincing evidence whether reasonable services . . . have been provided or offered"] and § 366.22, subd. (a)(3) [at 18-month review, the court "shall determine by clear and convincing evidence whether reasonable services have been offered or provided"].) Such silence suggests that the preponderance of the evidence standard should apply at that stage of the case. (See Katie V. v. Super. Ct. (2005) 130 Cal.App.4th 586, 594 ["When a statute is silent on the standard of proof, the preponderance of the evidence standard ordinarily applies."].) Nevertheless, because the juvenile court stated its finding under the clear and convincing evidence standard at a combined 18-month/24-month review hearing, we will review the record for substantial evidence "account[ing] for the level of confidence" demanded by the clear and convincing evidence standard. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995 (O.B.).) As such, "the question before [us] is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Id. at p. 1011.)
Mother argues the department failed to provide reasonable services because it permitted L.S., J.S., and C.F. to exercise "veto power" to determine if visits would occur and did not do more to facilitate family therapy. We understand Mother to contend that the juvenile court improperly delegated its discretion over visitation to the department or to the children. "The juvenile court has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to the [department]. The court may, however, delegate discretion to determine the time, place and manner of the visits. Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.)
Looking at the visitation orders in this case, at no time did the juvenile court delegate its discretion over whether visits would occur to the department or permit the children to refuse visitation. Instead, when it seemed L.S. and J.S. were resisting visitation, the court continued to order visits throughout the reunification period and added family therapy to the case plan in order to address the issues at the root of that resistance and to improve the relationship between Mother and the children. Thereafter, the court granted the department's section 352 request to continue the 18-month review hearing to permit additional family therapy sessions.
Moreover, Mother's contention that the department's efforts toward family therapy fell short fails in the face of authority establishing that visitation should not be maintained at the expense of the children's well-being. (Julie M., supra, 69 Cal.App.4th 41, 50)" '[T]he child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation.'" (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) Indeed, "a child's aversion to visiting an abusive parent may be a 'dominant' factor in administering visitation." (Julie M., at p. 51.) Here, L.S., J.S., and C.F. were each experiencing the effects of exposure to domestic violence and abuse. The therapist for L.S. and J.S. reported that there was "a large rupture" in their attachment to Mother with "a lot of fear present." Similarly, Sandi H. testified that L.S., J.S., and C.F. were adamantly opposed to attending visits or family therapy with Mother. Despite their expressions of resistance, the social worker continued to inquire with the children whether they wished to attend visitation. However, it was not unreasonable for the department to conclude that doing more to force contact between Mother and the three older children, even in a therapeutic setting, would likely have traumatized them further.
Finally, Mother argues the department failed to provide reasonable services by not increasing her overnight visitation with S.F. so that she could demonstrate her ability to care for his medical needs. There is no indication in the record that Mother ever made a request for increased visitation with S.F. But even if she did, the facts that Mother stopped making progress on her case plan and would not disclose the identity of the father of her newborn baby provided reason enough to deny such a request if it had been made.
We conclude "the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable" that the department provided Mother with reasonable services. (See O.B., supra, 9 Cal.5th at p. 1011.) Therefore, we must uphold the juvenile court's finding.
III. Disposition
The petition for extraordinary writ is denied.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P.J. WILSON, J.
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.