Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK58679, Marilyn Mackel, Referee.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
Margarita S. (Mother) appeals from the order under Welfare and Institutions Code section 366.26 establishing a plan of legal guardianship for her son, Carlos T. (born July 1996), and terminating her visitation. She contends: “The establishment of legal guardianship over Carlos and the order terminating visitation between Carlos and [M]other – in the absence of receiving court-ordered visitation in a therapeutic setting – violated [Mother’s substantive due process rights]. . . . By failing to enforce its dispositional order [of visitation], the juvenile court assured the complete erosion of the parent-child relationship that [M]other shared with Carlos prior to the resumption of juvenile dependency proceedings in May 2006.” We disagree, and affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
We take much of our factual and procedural background from our opinion in Mother’s earlier appeal, B194611, from the dispositional orders involving Carlos’ older sister, Linsey T. In that appeal, we affirmed the court’s orders denying Mother reunification services as to Linsey and suspending visitation. We mention the facts regarding Linsey only as necessary to explain the proceedings with respect to Carlos.
The 2001 and 2005 Referrals
In December 2001, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that Carlos T’s older sister, Linsey T. (born in Nov. 1994) had been sexually abused by her father, Carlos T., Sr., and that Mother knew about the abuse. The referral was eventually closed as unfounded.
Carlos T., Sr., (Father) is not a party to this appeal.
In April 2005, DCFS received a second referral regarding sexual abuse of Linsey by Father, and Mother’s knowledge of the abuse. Linsey and Carlos were removed from their parents’ custody and declared dependents of the juvenile court. Linsey later recanted the allegations of sexual abuse. The children were returned to parental custody, and in late January 2006 the juvenile court terminated jurisdiction.
The 2006 Referral
Meanwhile, in late December 2005, Linsey was raped by Father while Mother was away. When Mother returned home, she knocked on Father’s locked bedroom door. After some delay, Father opened the door and Mother saw Linsey lying in the bed. Linsey told Mother what Father had done, and Mother told her to wash up and stay away from Father. Mother said she would file a police report, but she did not. Mother also failed to report the abuse to DCFS, and, as noted, the juvenile court terminated its jurisdiction over the children in January 2006.
However, as a result of the December 2005 rape, Linsey, then 11 years old, became pregnant. In May 2006, Mother contacted Linsey’s school and asked to have her transferred to a school for pregnant girls. School officials alerted DCFS and the police. Linsey told school officials and the police that Father had raped her, whereupon Mother yelled at Linsey, “Why did you tell them?” She said Linsey was a liar and a bad child, and denied any knowledge of sexual abuse by Father. Father later signed a written statement acknowledging his wrongdoing and indicating he was sorry for what he did to Linsey.
The Petition and Adjudication
On May 9, 2006, DCFS filed a section 300 petition as to Linsey and Carlos, and they were removed from parental custody. At the adjudication and disposition hearing, the juvenile court found true the allegations of sexual abuse by Father and denied reunification services as to Father. The court continued the matter as to Mother, and later ordered that the children and Mother undergo an evaluation by a court-appointed psychological examiner. (Evid. Code, § 730.)
At the continued adjudication hearing, the court found true the allegations that Mother knew of the sexual abuse of Linsey by Father, repeatedly dismissed Linsey’s disclosures of sexual abuse, and failed to protect her and Carlos. The matter was continued for a disposition hearing as to Mother.
Pre-Disposition Developments
In August 2006, DCFS submitted for the disposition hearing a progress report from Mother’s program, the Child Sexual Abuse Treatment Program (CSAP). The report indicated that Mother’s participation was irregular and her progress insufficient. Mother was in complete denial of the fact that Father repeatedly raped Linsey and impregnated her and represented a risk to Linsey’s safety if allowed to have unmonitored contact with her. The court continued the matter for a contested disposition hearing. Mother was granted closely monitored visitation with the children in a therapeutic setting.
In September 2006, Linsey gave birth to a baby girl. The child was placed in the foster home along with Linsey and Carlos.
Meanwhile, on September 14, 18, and 25, Mother had monitored visits with Linsey and Carlos. According to the monitoring social worker, the visits were “fine.”
In a proceeding later that month, the disposition hearing was continued to permit the filing of a revised report under Evidence Code section 730, and to receive reports from the children’s therapists. In granting the continuance, the court noted that reunification was likely not an option for Mother given the nature of her neglect and abuse, but suggested to Mother’s attorney that Mother receive intensive counseling: “[T]he best thing we can do is have a really strong licensed professional work with the Mother because there is always going to be a relationship [with the children]. And it doesn’t mean she gets the child back but it means . . . at least they’ve gotten some understanding.” Pursuant to the court’s suggestion, Mother began individual therapy in late October 2006.
Also in October 2006, Carlos’ therapist reported that Carlos “has difficulty managing his anger and making sense of his 11 year old sister becoming a Mother.” However, he was making progress, and was beginning to talk about his feelings on the subject.
The October 2006 Disposition Hearing
The contested disposition hearing was held on October 26, 2006. The court received into evidence, inter alia, the various reports submitted by DCFS. The court determined that reunification services would be denied as to both children. The court stated that Mother had not “demonstrated any connection with the seriousness of this situation,” and a “lack of growth,” and therefore ordering reunification services would be “foolhardy and wishful thinking,” despite the general desire to return children to their parents whenever possible. The court found by clear and convincing evidence that it would not benefit the children to pursue reunification services “in light of her persistence and consistent lack of demonstrated ability to understand the impact of what has happened here and her responsibility in it, and in light of the continued denial of the facts.” Therefore, the court ordered no reunification services for Mother.
The court found that visitation posed substantial risk of detriment to Linsey, and suspended visitation. As to Carlos, however, the court ordered visitation was to remain monitored in a therapeutic setting. Finally, the court found that the children were not adoptable, and set the matter for a hearing to review the permanent plan in six months.
The April 2007 Review Hearing
For a review hearing held on April 30, 2007, Carlos’ attorney reported that Carlos liked living in the home of his foster Mother, and wanted her to adopt him or have legal guardianship. Carlos did not want visits of any kind with his Mother.
The foster Mother reported that when informed in late March 2007 that he was going to see his Mother, Carlos “started having an attitude toward everyone,” refusing to do his chores and delaying his homework. When the foster Mother asked why he was acting that way, Carlos said that he was afraid of being taken from the home.
Carlos’ therapist reported that Carlos had progressed slightly, but that Carlos found it difficult to talk about the circumstances that brought him into the foster care system. He also consistently said that he wished to stay in his foster home.
In its report for the April 2007 hearing, DCFS reported that on January 28, 2006, Carlos had written the case worker that he was doing well in school and therapy, and wanted his foster Mother to become his legal guardian. The case worker spoke to Carlos, who told her that he was not ready to have visits with his Mother.
In a letter dated April 18, 2007, Mother’s therapist reported that Mother had participated in 14 sessions since November 2006. Mother had finally come to admit that Linsey was abused by Father and that Mother should have done more to protect her. Mother had several times expressed a desire to visit with Carlos and Linsey. The therapist wrote: “We were under the impression that the visits were going to take place at my office. . . . One appointment was cancelled, and [Mother] was disillusioned when she learned that Linsey’s therapist had called [the case worker] to recommend that the visits do not take place. I believe that [Mother] has worked on the issues . . . and that she has done her best to be allowed to visit with her children again. I believe that she is now ready to see her children and that her progress should be taken into consideration when assessing the appropriateness of visitations.”
At the April 30, 2007 hearing, Mother’s attorney asked that “we at least try to now begin to have visits starting in a therapeutic setting based upon the information from [Mother’s therapist] and once they have spoken with Linsey’s therapist, that we try to get visits. . . . I am not sure about the information that Carlos has no desire to see his Mother.”
The court declined to order visits with Linsey and Carlos because their therapists’ reports suggested that visitation was not yet appropriate. The court scheduled a section 366.26 hearing for July 30, 2007, to determine the appropriateness of having Carlos’ foster Mother become his legal guardian.
Continuation of the July 30 Permanency Planning Hearing
DCFS recommended that Carlos remain with his foster Mother under a permanent plan of legal guardianship. Carlos continued in therapy, was excelling in school and displayed no behavioral problems. Carlos described the foster Mother as “nice [and] caring,” and expressed the desire to remain living with her as his legal guardian. Linsey had also been placed with the same foster Mother. As of July 30, Carlos had had no further visits or telephonic contact with Mother.
At the July 30th hearing, Mother’s counsel was apparently ill, and stand-in counsel asked that the case be trailed one day so that a letter from Mother’s therapist could be presented. Stand-in counsel also noted that Mother might be asking to contest the plan of legal guardianship. The court commented that if requested, the case would be set for a contested hearing. However, “the circumstances that have existed since the inception of this case belie not going forward with the permanent plan. . . . [T]here has been no 388 filed and a therapist letter is not going to impact whether [Mother] provides permanency for the child.”
The next day, July 31, the case was continued to August 7 for the court to consider the issue of conjoint counseling and for further proceedings on the permanent plan under section 366.26.
The August 2007 Hearing
On August 7, 2007, a hearing was held at Mother’s request on the issue of conjoint counseling. The court stated that it had read Carlos’ statement that he did not want family counseling, apparently referring to a handwritten letter dated August 2, 2007, that Carlos had sent to the court. In the letter, Carlos stated that he was “very happy,” “doing good in school,” and had joined the football team. He added: “I don’t want to leave this foster home for the second time. I have choices in life and my choice is to stay her[e] in this foster home. . . . I don’t want to be in therapy with my family. And please don’t ask me if I want to have it.”
The court had also read the statement of Mother’s therapist, apparently referring to a letter dated July 25, 2007 in which the therapist opined: “I do not feel that [Mother] will be a risk to her children if she is allowed to see them in a therapeutic environment, and I would be happy to see them in my office.” The court stated that it was concerned that Mother’s therapist “may not have enough information to have formed [that] opinion.”
Mother’s counsel urged the court to ensure that conjoint counseling with Linsey and Carlos began. The court agreed that conjoint counseling should ultimately occur if appropriate, but stated that the therapists for Mother and the children needed to communicate with each other and advise the court. The court stated that it “want[ed] a report from all of these therapist[s] regarding what their opinion is on the matter so I can make an informed decision when this occurs and in what setting it occurs.” Carlos’ counsel stated that she would ensure that Carlos’ therapist had releases, if needed, to permit consultation with Mother’s therapist. However, she objected to visitation, given Carlos’ wishes and his progress in the foster home and therapy. Mother’s counsel conceded that Carlos “may be in a different situation than Linsey[, who had] always expressed a desire to return [to Mother].”
The court scheduled a contested permanency planning hearing for September 24, 2007, and directed “minor’s counsel to communicate with minors’ therapist[s] to make sure that they communicate with [Mother’s therapist] and Mother’s counsel is to make certain that [Mother’s therapist] and children’s counsel each provide a letter to the court regarding meeting with the children and the Mother.”
The September 2007 Permanent Plan Hearing
On September 24, 2007, the permanency planning hearing was held. The DCFS report for the hearing contained an update from Carlos’ therapist. She reported that Carlos’ steady progress continued, and that Carlos and his foster Mother had developed a strong bond. Carlos told the therapist that he did not want to visit Mother even in the therapist’s office. The therapist also denied ever refusing to communicate with Mother’s therapist. She concluded: “I highly recommend that Carlos’ wishes be respected, as he and his sister have endured neglect and abuse and have been reunited with their parents previously, only to experience more of the same. [The foster Mother] has consistently provided a safe and stable environment for the children in her home, and Carlos has only recently begun to open up about the abuse he had suffered. At this point, any movement toward communication with Carlos’ Mother should be done at a pace with which Carlos is comfortable.”
The report contained no current update from Mother’s therapist, and recommended legal guardianship as the permanent plan.
At the hearing, the prior reports and letters were introduced into evidence. Mother’s counsel requested a continuance, because the therapists for Mother and the children had not consulted with each other as previously ordered by the court. The court denied the request, concluding that that the information from the therapists and other reports before the court were sufficient. Mother objected to legal guardianship because Mother had not been given the opportunity to participate in conjoint counseling with the children. Carlos’ counsel objected to any continuance and urged the court to adopt the plan of legal guardianship. DCFS joined.
The court ordered that the plan for legal guardianship go forward. Responding to the arguments of Mother’s counsel, the court noted that Mother had been referred to her therapist in order to ensure the well-being of the children, given her failure to understand her culpability in the abuse they had suffered, and to enable Mother to communicate with them appropriately should the children ultimately be able to visit with her. Mother had not been referred to the therapist for the purpose of ensuring reunification. Concerning the absence of communication among the therapists, the court noted that “we have clear indications from the therapist for [Carlos] and from [Mother’s therapist] and from [Carlos] himself that it is not an appropriate time to impose conjoint [counseling] or visit[ation] with the Mother upon him. . . . [H]e absolutely would suffer a detriment if the court lifted its order of no contact for the family at this time given the progress that he is beginning to make.” Therefore, the court determined that the legal guardianship plan was appropriate, and that no visitation would be provided between Carlos and his parents.
DISCUSSION
Failure to Enforce the October 2006 Visitation Order
As we have noted, at the October 2006 disposition hearing, the court ordered that Mother receive no reunification services. Nonetheless, under section 366.21, subdivision (h), the court was required to permit visitation unless it found that visitation would be detrimental to Carlos or Linsey. (See In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.) As to Linsey, the court expressly found that visitation would be detrimental, and ordered no visitation. As to Carlos, the court made no express finding of detriment, and ordered that visitation be provided in a therapeutic setting. However, no further visitation with Carlos occurred before the September 2007 permanency planning hearing at with the court adopted a plan of legal guardianship and formally terminated visitation with Carlos.
Section 366.21, subdivision (h), provides: “In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, other than the child’s siblings, who are important to the child, consistent with the child’s best interests.”
From the record, it appears that Carlos’ last visit with Mother occurred on September 25, 2006. On that date, Mother visited with both Linsey and Carlos, and the monitoring social worker reported that the visit (as well as two prior visits in September 2006) was “fine.”
Mother challenges the September 2007 order adopting a plan of legal guardianship on the ground that the court failed to enforce its October 2006 order directing monitored visitation with Carlos in a therapeutic setting. According to Mother, the absence of visitation violated her due process rights because it eroded the parent-child relationship and will ensure the eventual termination of Mother’s parental rights. We disagree. Although it is true that no visitation with Carlos occurred after the October 2006 disposition hearing, it is not true that the court violated section 366.21, subdivision (h) or Mother’s right to due process.
The point of the court’s October 2006 order that visitation occur in a therapeutic setting was to ensure that such visitation occur under tightly controlled circumstances and only at a time and place which would not disrupt Carlos’ progress in dealing with the severe trauma caused by Mother’s conduct. According to the August 2006 report from Mother’s sexual abuse treatment program, Mother was in complete denial of Father’s rape of Linsey. Therefore, in September 2006, before the October 2006 disposition hearing, the court suggested that Mother receive intensive counseling in order to prepare her for continuing a relationship with Linsey and Carlos. Mother began individual in October 2006, shortly before the disposition hearing. Not until the April 2007 review hearing did Mother’s therapist inform the court, for the first time, that Mother had progressed to the point where she should be allowed to visit Carlos and Linsey (“I believe that she is now ready to see her children and that her progress should be taken into consideration when assessing the appropriateness of visitations”).
At the April 2007 review hearing, Mother’s counsel asked that the court “make an order that we at least try to now begin to have visits [with Linsey and Carlos] starting in a therapeutic setting based upon the information from [Mother’s therapist].” However, the court declined to make such an order: “[R]egarding Mother and visits, we are not ready for visits and that is all indicated by all of the reports.” Thus, although the court did not make a formal finding of detriment to Carlos under section 366.21, subdivision (h), the court’s decision not to facilitate visitation between Mother and Carlos was clearly premised on an implicit finding of detriment. In so far as Carlos is concerned, the information then before the court showed that Carlos was thriving in the home of his foster Mother, had progressed slightly in his therapy, did not want to visit with Mother, and engaged in misbehavior at the suggestion of such a visit. “[T]he parents’ interest in the care, custody and companionship of their children is not to be maintained at the child’s expense; the 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 S.H. (2003) 111 Cal.App.4th 310, 317.) The court’s decision not to facilitate visitation was thus consistent with section 366.21, subdivision (h), and did not violate Mother’s right to due process
Further, unlike Hunter S., supra, 142 Cal.App.4th at page 1505, upon which Mother relies, the court here did not give the child “virtually complete discretion to veto visitation . . . without any oversight or direction by the court.” To the contrary, the court received relevant evidence as to whether visitation should occur, and reasonably determined that forcing Carlos to visit with Mother against his wishes would harm his fragile progress in treatment. According to Carlos’ therapist, Carlos had “made slow but steady progress [in discussing] his relationship with his family,” but it was “still difficult for [him] to talk about the circumstances which brought about his removal from the home.” Further, he had “extreme difficulty in building trust and expressing his feelings.” The court did not abuse its discretion in refusing to jeopardize Carlos’ slow progress through visitation with Mother.
The next time the issue of visitation was raised was in August 2007, when the court deferred Mother’s request for conjoint counseling. Carlos, who was then 11 years old, had written the court stating that he wanted to remain with his foster Mother and did not want to have family therapy. Although Mother’s therapist wrote to the court stating that Mother would not be a risk to the children during visitation in a therapeutic environment, the court questioned whether the therapist had enough information to make that assessment in light of Carlos’ wishes and the opinion of Carlos’s therapist. To that end, the court directed the therapists to communicate with each other and report to the court at the time of the September 2007 permanency planning hearing. Given Carlos’s resistance to visitation and the resultant danger to his progress that visitation might cause, the court reasonably deferred determination of the question until the September 2007 permanency planning hearing and the obtaining of updated information.
Thus, the court’s failure to facilitate Mother’s visitation with Carlos in a therapeutic setting before the September 2007 permanency planning hearing was not an abdication of its duty (cf. Hunter S., supra, 142 Cal.App.4th at p. 1505), but rather a proper exercise of its discretion to delay visitation because it would be detrimental to Carlos.
September 2007 Formal Termination of Visitation
Mother contends that the court abused its discretion at the September 2007 permanency planning hearing when it formally terminated the order of visitation with Carlos. The basis of the argument appears to be: (1) the court erroneously stated that Mother’s therapist recommended against visitation; (2) the court erroneously assumed that there was an order of no contact between Mother and Carlos and (3) the court allowed Carlos and his therapist sole discretion to determine whether visitation should occur.
With respect to the first two claims – the court’s mistakes in stating that Mother’s therapist counseled against visitation and in referring to a no-contact order – we find no prejudicial error. In responding to the argument of Mother’s counsel that the court should not act until the therapists communicated with one another and advised the court, the court stated: “As to the issue of missing reports regarding the two therapists communicating, I think we have clear indications from the therapist for the child and from Dr. Lean [Mother’s therapist] and from the child himself that it is not an appropriate time to impose conjoint [counseling] or visit[ation] with the Mother upon him; that he is stabilizing. He is making adjustments to his life in school and he absolutely would suffer a detriment if the court lifted its order of no contact for the family at this time given the progress that he is beginning to make.” (Italics added.)
Although the court referred to Mother’s therapist in terms suggesting that she thought visitation was inappropriate, it is apparent that the court simply misspoke. From earlier proceedings in April and August 2007, the court was well aware that Mother’s therapist believed that visitation should occur. Indeed, it was on the basis of this opinion that Mother’s counsel was urging that visitation or conjoint counseling be ordered. Further, earlier in the September 2007 proceeding the court stated: “[C]learly based upon . . . Dr. Lean’s report, Mother has been making some progress [in] understanding the nature and quality of the abuse that her children have suffered.” The court was therefore aware of Mother’s progress in therapy, and its mistaken reference to Mother’s therapist counseling against visitation could not reasonably have influenced the court’s ruling.
As to the court’s mistaken reference to a “no-contact order,” it is true that no such order had been entered. However, as the court knew, no visitation with Carlos had occurred. In stating that Carlos would “suffer a detriment if the court lifted its order of no contact for the family at this time given the progress that he is beginning to make” (italics added), the court was, in substance, making a finding under section 366.21, subdivision (h), that visits with Mother would be detrimental to Carlos.
Finally, contrary to Mother’s contention, the court did not give Carlos and his therapist impermissible authority to decide whether visitation would occur. At the permanency planning hearing, the court had before it the prior DCFS reports, Carlos’s written statements, an update from Carlos’ therapist, and the reports from Mother’s therapists dated April 18, 2007 and July 25, 2007. Based on this information, the court exercised its independent judgment in determining that Carlos would suffer a detriment from visitation with Mother. No abuse of discretion appears in that determination.
DISPOSITION
The orders appealed from are affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.