Opinion
F078926
10-03-2019
In re C.D. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ROBERT D., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18CEJ300175-1, 18CEJ300175-2)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Leanne LeMon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Meehan, J.
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Appellant Robert D. (father) has two daughters, now seven-year-old, C.D., and five-year-old, K.D. (the children), who were adjudged dependents of the juvenile court in August 2018. At a contested six-month review hearing (Welf. & Inst. Code, § 366.26, subd. (e)(1)) in February 2019, father unsuccessfully challenged the reasonableness of visitation provided by the Fresno County Department of Social Services (department). He raises the same issue on appeal. We affirm.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In July 2018, law enforcement placed a protective hold on the children, then six and four, after T.E., father's live-in girlfriend and the mother of the children, threatened him in the children's presence, stating she was going to have him physically harmed or killed. T.E. (mother) told him she knew "guys in Chowchilla that want[ed] to put [him] down [and] ... may even kill [him]." She denied making the statement. The department took the children into protective custody and placed them in foster care.
The department was familiar with the parents, having received prior reports of domestic violence between them. Father is an Iraq war veteran and suffers from posttraumatic stress disorder (PTSD) and anxiety. Mother reported having PTSD, which she attributed to the domestic violence in the home, as well as bipolar and personality disorders. Neither medically treated their mental health conditions, choosing instead to self-medicate using marijuana and alcohol. In January 2012, the department received a report that mother tried to "jab" father with a knife while newborn C.D. was in the room. Father had full legal and physical custody of C.D. and allowed mother in his home despite a three-year restraining order against her. Mother was arrested. C.D. was temporarily detained and returned to father's custody. In 2016, the department received a report that mother was cutting a mango and used a stabbing motion with the knife that triggered father's PTSD. He attacked her while the children witnessed the incident from another room. No arrests were made. Father explained he loved mother and tried repeatedly to help her. He was forced, however, to make her leave his home and obtained another restraining order against her. He subsequently began attending therapy and taking his medication. Father excused mother's presence in his home in July 2018, explaining she was homeless, and he wanted the children to have a relationship with their mother.
The department filed a dependency petition, alleging the parents failed to protect the children from domestic violence. Father appeared with his attorney at the detention hearing and objected to the children's removal. His attorney asked the juvenile court to place the children with him on an extended visit pending the jurisdictional hearing as mother had agreed to move out and, although it was denied, father had taken the protective measure of applying for a restraining order. The court denied the request for extended visitation, citing father's long history of domestic violence and untreated PTSD and his exposure of the children to mother knowing she was mentally unstable. The court ordered the children detained and set a combined jurisdictional/dispositional hearing for August 8, 2018 (combined hearing). The court granted father reasonable visitation and the department discretion to arrange unsupervised, liberal and extended visits.
At the combined hearing in August 2018, the juvenile court adjudged the children dependents as alleged in the dependency petition, removed them from parental custody and ordered the parents to participate in substance abuse, mental health, domestic violence and parenting services. The court reiterated its order for reasonable supervised visitation and unsupervised, liberal and extended visits at the department's discretion with prior notice. The court set the six-month review hearing for January 2019.
By mid-December 2018, the parents had progressed in their court-ordered services. Mother completed a parenting class and was receiving residential substance abuse treatment. She was participating in a child abuse intervention program, a batterer's intervention program and in weekly therapy. Father was participating in random drug testing, aftercare, weekly therapy and a parenting class, which he was scheduled to complete on December 20. He completed 21 weeks of a 52-week domestic violence course and attended weekly Alcoholics Anonymous/Narcotics Anonymous meetings. He lived in a two-bedroom apartment and worked part-time as a karate instructor.
The parents also regularly visited the children and visits went well. On December 7, 2018, father began unsupervised visitation. A child and family team (CFT) meeting was scheduled for December 31 to discuss advancing mother to unsupervised visits as well. The department recommended the juvenile court continue the parents' reunification services at the six-month review hearing. It considered their prognosis good for reunifying but wanted to continue monitoring their ability to complete their court-ordered services and progress in visitation.
Father objected to the department's recommendation for continued services. On January 3, 2019, the date set for the six-month review hearing, his attorney asked the juvenile court to return the children to father's custody under family maintenance services. His attorney stated father was not challenging the reasonableness of services provided to him. The court approved unsupervised visitation for mother and recused itself at her request after disclosing it also presided over drug court and father was a drug court client. The court set a contested six-month review hearing for February 28.
On February 28, 2019, the juvenile court convened the six-month review hearing and the parties stipulated to the court's receipt of various documents evidencing father's completion of services. The court also noted that father was scheduled to begin liberal visits by March 8.
Social worker Andrea Beltran testified she had no concerns about father's participation in his reunification services or the quality of his visits. He completed all of his services except domestic violence. He was doing well in the domestic violence program and in therapy. However, the children's reaction to increased exposure to their parents caused the department concern about returning them to parental custody. Beltran explained that when the department transitioned the children to unsupervised visitation, they became more defiant and refused to bathe. The department wanted to transition them slowly through the visitation stages, so they could adjust before the next change. She explained the department utilized a protocol of advancing parents and children through the visitation levels based on the results of intermittent CFT meetings. Within 30 to 60 days of beginning unsupervised visits, the department conducted a CFT to consider liberal visitation. After another 30, 60 or 90 days of liberal visitation, the department conducted a CFT to consider implementing extended visits. Beltran conceded father should have been receiving extended visits under the visitation protocol. However, she also said there was no guarantee that a parent would progress at that rate. She also acknowledged the caretakers allowed father an unauthorized overnight visit with the children a few months before the hearing. She discovered it after the fact. The visit went well, and the paternal grandmother was there to assist.
Beltran further testified the parents had recently resumed communication by text messages. If the children were returned to father under family maintenance, he would be required to transport them to visit mother. Beltran was concerned about the parents interacting without supervision because they had not yet established clear boundaries. Allowing father to progress through liberal and extended visitation would allow the department to assess their ability to interact effectively. She conceded the paternal grandmother could transport the children for visits if there was a problem.
Father testified he completed outpatient substance abuse treatment and an aftercare program. He still had urges to use substances but resisted by using the coping skills he learned in treatment. He also had a sponsor and a support group. He completed a parenting class and was participating in batterer's intervention and child abuse intervention programs. He discovered how emotional abuse factored into his relationship with mother and learned to recognize it so as not to repeat it. He had suitable housing for the children and several people who were available to care for them while he worked and attended classes.
Father's attorney asked the juvenile court to return the children to him with family maintenance services. She argued the law did not require a parent to progress through each stage of visitation to receive extended visits and the department's decision to ease the family through each stage was unreasonable. County counsel and minors' counsel acknowledged father's progress but believed it prudent not to rush into family maintenance. The department wanted time to work through the visitation stages with father to make sure there were no issues when the children were returned to his care and to prevent having to remove them a second time. Mother's attorney concurred.
The juvenile court found the department provided reasonable services, including visitation. The court specifically noted that father was approximately one-third of the way through the domestic violence class. The court believed there needed to be clear boundaries established given the parents' seven-year history of domestic violence and child protective referrals. The court found father made significant progress in his services plan and mother's progress was moderate. The court continued reunification services and set the 12-month review hearing for July 22, 2019.
DISCUSSION
Father contends the department's strict adherence to its protocol for advancing visitation was reflective of the department's "slow institutional inertia" and unreasonable given his compliance with his court-ordered services. Therefore, he argues, the juvenile court's reasonable services finding is error and must be reversed. We disagree.
Reversal is required, father contends, because if left undisturbed the reasonable services finding will unfairly prejudice his ultimate ability to reunify with the children. He reasons that the department based its opinion the children could not be safely returned to him on his inability to advance to liberal visits. If the department's method of advancing visitation (i.e., its visitation protocol) is not found unreasonable, it could prejudice him at a future review hearing if he again fails to achieve extended visitation through no fault of his own.
Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) " 'Visitation is a critical component, probably the most critical component, of a reunification plan.' " (In re T.G. (2010) 188 Cal.App.4th 687.) "An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children 'as frequent[ly] as possible, consistent with the well-being of the minor.' " (In re Julie M. (1999) 69 Cal.App.4th 41, 49-50.) Section 362.1, the general visitation statute, requires the juvenile court to order visitation whenever it places a child in foster care and orders reunification services for the parent. (§ 362.1, subd. (a)(1)(A).) The statute provides, as relevant here:
"In order to maintain ties between the parent ... and the child, ... any order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶] (1)(A) [V]isitation between the parent ... and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. [¶] (B) No visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(A) & (B).)
Thus, the power to determine the right and extent of visitation is a judicial function, which must be made by the juvenile court. The specifics of visitation, however, demand flexibility to "maintain and improve the ties between a parent ... and child, while, at the same time, protect the child's well-being." (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376.) "To sustain this balance the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits occur." (In re S.H. (2003) 111 Cal.App.4th 310, 317.)
"The adequacy of reunification plans and the reasonableness of the [department's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) 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 ...." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.)
On a challenge to the juvenile court's reasonable services finding, we view the evidence in a light most favorable to the respondent, indulging all legitimate and reasonable inferences to uphold the verdict. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juvenile court's finding, we will not disturb it. (Ibid.) As father bears the burden of demonstrating error on appeal (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.), he must show that the juvenile court's finding that the department made reasonable efforts to facilitate visitation is not supported by substantial evidence. We conclude he has failed to make such a showing.
The issue in this case is whether the department acted reasonably in progressing father's visitation through the standard visitation protocol. Father does not argue the protocol itself is unreasonable. Rather, he argues the department applied it unreasonably in his case. We disagree. The children were removed from father's custody because of ongoing domestic violence between him and their mother. In their young lives, they had witnessed their parents yell, engage in physical violence and threaten physical harm, even death. Any peace and stability they may have experienced in father's custody was overshadowed by mother's erratic and unstable presence in their lives. On December 7, 2018, the children began unsupervised visits with father. Approximately a month later, on January 3, 2019, they began unsupervised visits with mother. According to Beltran, the change confused the children and they reacted by behaving defiantly. In order to avoid such adverse effects on them and the need to remove them from parental custody a second time, the department chose to progress through the visitation stages more slowly than called for by the protocol. Had the department advanced father's visitation according to the protocol, he would have been receiving liberal visits on or before February 7, 2019. Instead, liberal visitation was scheduled to begin by March 8.
Substantial evidence supports the juvenile court's finding the department provided father reasonable visitation. He and mother had a seven-year history of domestic violence and a pattern of reuniting following an incident of domestic violence and a temporary separation. Though father had made significant progress in completing his reunification services, there was no reason to believe that he would not repeat the pattern. He and mother were again in contact and neither demonstrated they had established sufficient boundaries to protect themselves and the children from their volatile behavior. Under the circumstances, the department was not unreasonable in the rate at which it advanced father's visitation and the juvenile court did not err in finding father received reasonable visitation. We find no error.
DISPOSITION
The juvenile court's reasonable services finding issued at the six-month review hearing on February 28, 2019, is affirmed.