Opinion
A100347.
7-30-2003
In re F.S., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. LISA W., Defendant and Appellant.
The juvenile court temporarily suspended visitation between appellant Lisa W. and her minor child F. S., gave custody of the child to his father, Claiborne S., and ordered that Lisa continue to receive family reunification services. Lisa appeals, contending that (1) there was insufficient evidence to suspend visitation with her son; (2) suspension of visitation deprived her of her right to reasonable and adequate reunification services; and (3) the juvenile court erred by setting a date for a permanency planning hearing because there was insufficient evidence to support its finding that reasonable reunification services had been provided to her. (See Welf. & Inst. Code, §§ 361.5, 366.26.) We affirm the juvenile court order.
All statutory references are to the Welfare and Institutions Code.
I. FACTS
In her reply brief, Lisa complains that the agencys statement of facts was not fairly and accurately reported. We note that the following statement of facts is based on our reading of the record, not on any characterizations of the record made by either party. We also note that when a parent attacks the sufficiency of evidence supporting a juvenile court finding, we must construe the record in support of that finding. (See pt. III., post.)
In 1991, a son-F.S.-was born to appellant Lisa W. and Claiborne S. The parents relationship was marred by Lisas physical abuse of Claiborne and the couple divorced in 1993. Lisa took custody of the minor. In 1996, Lisa was convicted of the misdemeanor battery of Claiborne. She was sentenced to three years probation for this offense. Over the years as he tried to avoid contact with Lisa, Claiborne also lost contact with F.S.
On the night of March 11, 2002, ten-year-old F.S. reported to Union City police that Lisa had physically abused him. When Lisa insisted to police that F.S. not be placed with her parents, Alameda County Child Protective Services took him into protective custody. The minor was placed in a group foster home.
All subsequent dates refer to the 2002 calendar year unless otherwise indicated.
Lisa had a problematic relationship with her parents. She reported that her father had been sexually abusive in the past, but a prior report of sexual abuse had been found to be unsubstantiated. They claimed that her accusations were in retaliation for their decision to set up a trust to benefit her children, rather than Lisa.
On March 13, respondent Alameda County Social Services Agency petitioned the juvenile court to have F.S. declared a dependent child. (See § 300, subds. (b), (g).) The petition alleged that Lisa physically abused F.S., including slamming his head into the windshield of a car, choking, punching, slapping, kicking, and spanking him. It also alleged that Claibornes whereabouts, ability and circumstances to parent F.S. were unknown such that he had made no provision for the minors support. On March 14, the juvenile court concluded that the minors welfare required his removal from Lisas custody. Supervised visitation was ordered.
Lisa wanted F.S. to return home, but also opined that he needed to live with Claiborne. She acknowledged that F.S. was angry and expressed an interest in obtaining family counseling. F.S. was unwilling to return to Lisas home, preferring to live with either his father or his maternal grandparents. As of March 21, neither Lisa nor F.S. had expressed an interest in any visitation and none had occurred.
On March 26, the juvenile court conducted a jurisdiction hearing. Before the hearing, the agency reported that F.S. expressed sadness and frustration with Lisa about what he perceived to be her manipulative ways, mean statements and lack of concern for him. The agency recommended that F.S. be declared to be a dependent child and that both parents be ordered to participate in reunification services. At the hearing, the juvenile court amended the allegations of the petition pertaining to Lisas failure to protect F.S. The amended allegations stated that Lisa had used inappropriate and excessive corporal punishment and that she was unable to discipline him without using corporal punishment. As amended, the allegations were found to be true. The original allegations pertaining to Claiborne were also found to be true. F.S. was declared to be a dependent child. At that time, the parents were found to have made only minimal progress toward alleviating the causes of the dependency. Lisa was permitted to have supervised telephone calls and visits with F.S. The social worker was given discretion to allow unsupervised calls after consulting with the minors counselor.
One condition of the reunification plan was for F.S. to obtain mental health counseling regarding his feelings of anger, resentment and rejection toward Lisa. His social worker referred him to a psychologist because his foster mother and a resource specialist at his school both reported that F.S. was inhibited and tearful. The worker supervising visits with Lisa reported that F.S. becomes anxious as the visits approach, characterizing his behavior as a kind of panic attack. The psychologist met with F.S. twice and concluded that he was very unstable emotionally-his ability to cope was overwhelmed by the distressing emotions he was feeling. He recommended fewer visits with Lisa as part of F.S.s treatment and that the minor begin seeing a child therapist who specialized in working with traumatized children.
Between April and June, Claiborne participated in parenting classes and made regular visitation with the minor. F.S. and Claiborne each expressed a desire that F.S. live with his father. The agency sought a hearing to obtain court approval of its plan to place F.S. with Claiborne. The minors therapist was concerned for his emotional stability and believed that he needed to live in Claibornes home and reduce his contact with Lisa for a time. Thus, the agency also asked the juvenile court to reduce visitation with Lisa from once a week to once a month as recommended by the minors therapist, and asked that Lisa consent to a release of information from various sources so that her progress could be assessed by the social worker. Lisa opposed the request to reduce visitation.
On July 2, the juvenile court approved a 30-day trial visit in Claibornes home with F.S.s father and stepmother. Visitation with Lisa would only occur in a supervised setting away from the home. On July 11, it reduced Lisas visitation with F.S. from once a week to once a month and extended the trial visit until the next hearing scheduled for September 18. The juvenile court reiterated that the goal of the case plan continued to be reunifying F.S. and Lisa.
In July, Lisa underwent a psychological evaluation. The psychologist opined that she was rigid, untrusting, had a low tolerance for frustration, poor control of her anger, poor self-control and occasional outbursts of physical aggression. The social worker testified at the September hearing that she did not consider this evaluation when making her recommendation about suspending visitation.
In early August, the agency sought court approval to administer psychotropic drugs to F.S. as recommended by his three mental health professionals-a psychiatrist, a psychologist and a therapist. The treatment was recommended to assist the minor in coping with the effects of abuse and neglect, including sleeping difficulties, nightmares, loss of bowel control, and reports of hearing voices instructing him to hurt himself and others. His psychiatrist concluded that F.S. suffered from serious depression. Lisa disagreed with this recommendation. The juvenile court approved the request on the following day.
Later reports indicated that psychotropic medications were prescribed to F.S. "only as needed," but not given to the minor because he had not asked for them.
Later in August, the agency asked the juvenile court to temporarily suspend visitation between F.S. and Lisa. The minor told his attorney and his therapist that he did not wish to visit with his mother. F.S.s therapist was concerned about the detriment he would suffer if forced to continue visitation against his will. His psychologist reported that F.S. viewed the years that he lived with his mother as constant terror, opined that he appeared to be making good progress in his treatment, and concluded that the placement with his father and stepmother was helping the minor regain his psychological equilibrium. The psychologist recommended respecting F.S.s wishes regarding visitation with Lisa.
Lisa and F.S.s mental health professionals disagreed about whether she should continue to visit with F.S. The social worker testified that her recommendation was that visitation should be suspended until family therapy could start, acknowledging that this therapy could not begin until Lisa was able to address the impact of her abuse of F.S.
On August 28, after hearing, the juvenile court suspended visitation until further court order. It concluded that F.S. needed time away from Lisa to heal before he could reconnect with her. At that time, Lisa had complied with all requirements of her case plan except obtaining therapy, and she was on a waiting list to obtain counseling.
A six-month review hearing was scheduled. In advance of the hearing, the agency recommended that F.S. be placed in Claibornes home, that his dependency status be continued, that family maintenance services be provided to F.S. and Claiborne, and that reunification services be provided to Lisa. Lisas progress in alleviating the causes of the dependency was recommended to the juvenile court to be characterized as partial; Claibornes progress was suggested to be substantial. F.S.s therapist reported that he was making remarkable progress with the support of his father and stepmother and that he has repeatedly stated his desire not to have contact with Lisa at this time other than to see his younger brother. She recommended that visits be considered only after Lisa obtained treatment herself and her own therapist assessed her readiness to accept responsibility for his past behavior toward her son.
At the September 18 six-month review hearing, the agency noted that Lisa had done very well in meeting the requirements of her case plan. On the same day, a contested hearing was conducted on the issue of suspension of visitation as well as Lisas objections to F.S.s proposed placement with Claiborne. The minors psychologist testified that he would be surprised if F.S. was ready to see Lisa.
After hearing, the juvenile court ordered visitation between Lisa and F.S. to be temporarily suspended. It found that F.S.s mental condition was fragile and that the best course was to stabilize his placement with Claiborne. It found by clear and convincing evidence that it would be detrimental for F.S. to visit with Lisa at that time and thus, it temporarily suspended her visitation with him. It concluded that both Lisa and Claiborne had made substantial progress in alleviating the cause of the dependency. The juvenile court also concluded that reasonable reunification services had been offered or provided to the parents. Family maintenance services were ordered for F.S. and Claiborne, with reunification services ordered for Lisa. F.S. was permitted to continue to reside with Claiborne in his custody. Lisa filed a timely notice of appeal from this juvenile court order.
In her September notice of appeal, Lisa challenged F.S.s removal from her custody, his placement with Claiborne, and the limitation on her visitation. She also purported to challenge the termination of her parental rights, which did not occur until March 2003- after the order from which Lisa now appeals. In addition, her brief appears to challenge the setting of a permanency planning hearing date, which was not done until after the present appeal was perfected. Thus, we limit our consideration in this appeal to those issues that were decided in the juvenile court in its September order.
Since the time that Lisa filed her appeal, the juvenile court conducted the 12-month review hearing. In March 2003, it concluded that reasonable reunification services had been provided or offered to Lisa, but that she had made only partial progress toward alleviating the causes of the dependency. It terminated her reunification services, granted sole legal and physical custody of F.S. to Claiborne, and dismissed the underlying dependency.
II. MOOTNESS
After she perfected her appeal of the September juvenile court order, that court terminated her reunification services, granted custody of her child to his father and dismissed the dependency. As such, the agency now asserts that Lisas appeal has become moot.
In juvenile cases, when an issue raised in a timely appeal continues to affect the rights of a parent, the appeal is not automatically rendered moot by the dismissal of the underlying dependency proceedings. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 517-518.) The question of mootness is to be decided on a case-by-case basis. (In re Kristin B. (1986) 187 Cal. App. 3d 596, 605, 232 Cal. Rptr. 36.) An issue is not moot if the purported error affects the outcome of subsequent proceedings. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) Lisa argues that the juvenile courts order suspending her visitation with F.S.-an order she contends was not based on substantial evidence-effectively prevented her from ever being able to reunify with him. If she proved these claims of error, then the juvenile courts subsequent termination of parental rights would be undermined. Thus, it does not appear to us that all of the issues presented in Lisas appeal are moot.
III. VISITATION
On the merits of her appeal, Lisa first argues that there was insufficient evidence to support the juvenile courts order temporarily suspending visitation with F.S. She contends that the juvenile courts order suspending visitation is only valid if the evidence established that continued supervised visitation would result in harm to F.S. She argues that having visits supervised by a therapist would have been an adequate safeguard and a less stringent alternative than the total suspension of visitation.
Visitation is normally a key element of a reunification plan, as the maintenance and strengthening of ties between a parent and child tend to promote the reunification process. (See In re Julie M. (1999) 69 Cal.App.4th 41, 50.) However, visitation may only be as frequent as is consistent with the childs well-being and may not in any case jeopardize the childs safety. ( § 362.1, subd. (a)(1).) The juvenile court must focus on the best interests of the child, including the possibility of the adverse psychological consequences from an unwanted visit between a parent and child. (In re Julie M., supra, 69 Cal.App.4th at p. 50.)
When faced with a challenge to the sufficiency of evidence in a parental termination case, we must view the entire record in the light most favorable to the juvenile courts finding, indulging in all legitimate and reasonable inferences to uphold that finding. If there is substantial evidence to support the finding, we cannot disturb the judgment. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We have no power to reweigh the evidence-only to determine if there is sufficient evidence to support the juvenile courts finding. (In re Jacqueline G. (1985) 165 Cal. App. 3d 582, 585, 211 Cal. Rptr. 827; see In re Katrina C. (1988) 201 Cal. App. 3d 540, 547, 247 Cal. Rptr. 784.) As the party challenging the juvenile courts finding, Lisa bears the burden of proof on this issue. (See, e.g., In re Geoffrey G. (1979) 98 Cal. App. 3d 412, 420, 159 Cal. Rptr. 460; see also In re Diamond H. (2000) 82 Cal.App.4th 1127, 1134, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748 fn. 6.)
In this matter, the juvenile court had strong evidence before it that F.S.s emotional state was extremely fragile. He had made it clear that he did not wish to continue to visit with Lisa, and that the mental health professionals who were concerned with his recovery believed that a temporary suspension of visitation that was consistent with his wishes would assist him in his emotional recovery. Drawing all reasonable inferences from this evidence as we must, we find that it forms substantial evidence in support of the juvenile courts implied finding that continued visitation with Lisa was harmful to F.S.s mental health.
F.S. was anxious before visits with his mother and his mental state was improving the longer he lived with his father and had more limited contact with his mother. Although the therapist-supervised visitation that Lisa proposes on appeal might have been chosen by the juvenile court, it also had the authority to conclude on the basis of the evidence before it that F.S.s recovery would be better promoted by the temporary suspension of visitation, because it was more consistent with his wishes and allowed him a greater sense of control over his life. Her solution would not have achieved this result. As the juvenile court noted, the purpose of the temporary suspension of visitation was to allow F.S. to heal such that he could reconnect with Lisa at a later time.
Lisa criticizes the evidence from F.S. to the juvenile court on this issue as stale, as some of it was three to four months old. Given the strong evidence of the fragile state of F.S.s mental health and the relatively short period of time involved in this matter, the evidence that the court had before it was sufficiently close in time to the date of the hearing to be relevant. Lisa also challenges the evidence as coming from third parties, rather than from F.S. directly. In a case involving an 11-year-old boy who demonstrated the emotional distress that F.S. did in this case, we find it appropriate for the juvenile court to rely on indirect sources of evidence such as his mental health advisors and his schools resource specialist. Finally, Lisa contends that because she had had no visitation for two months before the juvenile court issued its temporary suspension order, the evidence before the court was too stale to be considered reliable. Again, we disagree. F.S.s improvements during these few months of no visitation allowed the juvenile court to draw the reasonable inference that the absence of contact with Lisa had helped the minor to reach an emotional equilibrium that he needed to address the underlying issues in his family situation. Given all these facts, we find substantial evidence in support of the juvenile courts visitation order.
IV. AQEQUACY OF REUNIFICATION SERVICES
Next, Lisa argues that the juvenile courts temporary suspension of visitation effectively deprived her of an opportunity to receive reasonable and adequate reunification services. (See § 361.5.) She reasons that the visitation order constituted an abuse of discretion because the juvenile court lacked clear and convincing evidence that some less drastic alternative could have protected F.S.s health and safety. Before it issued the order suspending visitation, the juvenile court found by clear and convincing evidence that it would be detrimental for F.S. to visit with Lisa.
To the extent that Lisas claim is based on her assertion that there was insufficient evidence that F.S. would have been harmed by continued supervised visitation, we have already concluded that there was sufficient evidence to support the juvenile courts implied finding of harm.
In support of her claim of error, Lisa makes several contentions. She first argues that the agency actually recommended her suggested approach-that is, supervised visits in the presence of a therapist. Her reading of the record is incorrect. In fact, both the social worker and F.S.s therapist recommended that visitation be suspended until after Lisa had begun to see a therapist herself and after her therapist believed that she had made sufficient progress in acknowledging her abuse of F.S. At that time, supervised visitation might resume again when family therapy might begin. A few weeks before the juvenile court issued its order, Lisa had not yet been able to begin her own therapy but was on a waiting list to see a therapist. Thus, she had not met the condition precedent to the recommendation for resumption of visitation. Lisas argument takes the words of the social worker and F.S.s therapist out of context when she contends that they supported immediate supervised visitation between she and F.S. They do not support her claim of error, but instead offer clear and convincing evidence in support of the juvenile courts finding of detriment.
Lisa next argues that the juvenile court should have set a specific time for resumption of visitation. We disagree. The recommendation that the juvenile court approved was to temporarily suspend visitation until such time as Lisa began therapy and had made a sufficient acknowledgment of her abuse of F.S. that all parties could begin family therapy. The juvenile court did not abuse its discretion by not setting a time certain for resumption of visitation, but leaving that time to be determined based on Lisas progress in therapy and F.S.s best interests.
Lisa also suggests that the juvenile courts order constituted an unauthorized delegation of authority by leaving it up to F.S. and his and her therapists to decide when visitation might resume. Again, we disagree with Lisas characterization of the order. The order appealed from determined that visitation would be suspended. It did not grant discretion to anyone to determine when or if visitation would resume. When dealing with a minors emotional health, the juvenile court necessarily relies on the information it receives from the minor and from mental health professionals in order to make its ruling. Here, the juvenile court itself issued the only order before us on appeal. This order did not constitute a delegation of authority, but clearly ordered that visitation would be suspended.
In fact, the order gave Lisa a measure of authority to put into play the elements of resumed visitation by the juvenile courts urging to attend therapy and to make a serious effort to delve into the emotional issues underlying this matter.
Finally, Lisa reasons that the juvenile court lacked sufficient evidence to find that she had been provided with reasonable reunification services when it had suspended visitation, arguing that it thus erred in setting a date for a permanency planning hearing. (See § 366.26.) However, no date was set for a permanency planning hearing when the juvenile court issued the visitation order from which Lisa appeals. As such, we need not address this claim of error.
The juvenile court order is affirmed.
We concur: Kay, P.J., Sepulveda, J.