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In re Gina V.

Court of Appeals of California, First Appellate District, Division Three.
Nov 25, 2003
No. A101065 (Cal. Ct. App. Nov. 25, 2003)

Opinion

A101065.

11-25-2003

In re GINA V., a Person Coming Under the Juvenile Court Law. THE CITY AND COUNTY OF SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES, FAMILY AND CHILDRENS SERVICES DIVISION, Plaintiff and Respondent, v. ALFREDO V., Defendant and Appellant.


Alfredo V. appeals from an order suspending visitation with three of his daughters. He contends that there is insufficient evidence that the change in visitation was in the girls best interest under Welfare and Institutions Code section 388, and that the court improperly delegated to a therapist the decision as to when visitation might resume. We affirm.

All statutory references are to the Welfare and Institutions Code.

Procedural and Factual History

Three of Alfredos daughters have been in long-term foster care since 1996, following the provision of reunification services for 18 months. Over this period of time, Alfredo has had supervised visits with the girls once or twice a month. In August 2000, however, Alfredo discovered that the eldest daughter, Gina, was not his biological child and, according to the social worker, began behaving inappropriately during the visits. The social workers status review report filed on February 25, 2002, explains, "There have been several issues that had to be dealt with during this last review period regarding visits. First of all, [Alfredo] did not feel compatible with the . . . social worker who supervised the visits. He became angry when she monitored the visits. He wanted to have privacy in the visits, but because of problems that were surfacing during the visits, she needed to watch the interactions between him and the minors very closely. [Alfredo] showered the majority of his attention on the two younger girls, often leaving Gina out of the family dynamics there and ignoring her. The two girls were constantly reminding Gina that she was not [Alfredos] biological daughter. The minors . . . were very competitive for his attention . . . . [A representative of the San Francisco Department of Human Services (hereafter, the department)] talked to [Alfredo] about these dynamics, and how important it was for him to be fair in his treatment of all the children. It appears that he has come around, and is now trying to be more equitable. . . . Even though the attention from [Alfredo] was more equitable, the minors still compete with each other and argue, demonstrating much sibling rivalry." On March 27, the department executed an ex parte motion seeking to suspend Alfredos visitation. The declaration submitted in support of the motion explains that Alfredos "behavior during supervised visitation has been inappropriate and detrimental to the minors. [¶] [Alfredo] has made negative statements about Gina in an attempt to ridicule or humiliate her. [He] has told [the younger girls] that Gina is not his daughter and does not belong at the visits with them because she is disruptive. This causes the children to be tense during visits. [Alfredo] has been previously warned to refrain from negative statements that might impact the children. [¶] . . . [Alfredo] has at times ignored Gina during the visits and on at least one occasion failed to acknowledge her until the end of the visit." The court granted the motion temporarily suspending visitation, and set a hearing to further consider the matter on April 9, 2002.

At the April 9 hearing, the court ordered therapy for the girls and gave permission for Alfredo to participate in the therapy but did not reinstate visitation. Shortly thereafter, the department filed a section 388 petition seeking to terminate Alfredos visitation. The petition was based on the social workers declaration quoted above. A contested hearing on the petition was set for October 10, 2002. In preparation for the hearing, the department submitted a status review report that described ongoing sibling rivalry between the girls. The rivalry "was more apparent when the girls had visits with their father and telephone contacts with [their younger sister], as [their sister] and [Alfredo] caused animosity between [the girls] by pitting them against each other. This affected Gina because it was emphasized that Gina is not biologically connected to [Alfredo] and that she was not Daddys girl. . . . Since the visits have been suspended with the father, the intensity of the rivalry has lessened . . . ."

Alfredos youngest daughter is not in placement with the three older girls.

At the October 10 hearing, the social worker testified, by confirming the city attorneys offer of proof, that she believed it would be in the best interests of the children to suspend visitation. "It is [the social workers] opinion that [Alfredos] behavior when visiting the children has been calculated to cause conflict and animosity between the siblings. He undermines the relationship among the four siblings . . . . [¶] [Alfredo] tells [the sisters] that Gina should not attend the visits because she is not his biological daughter and that . . . she is too disruptive during the visits. [Alfredo] uses the children to get unverified information on the bad behavior of . . . the other children. He does not attempt to verify the information he receives and uses the information to confront the children. [¶] . . . [¶] . . . [Alfredo] has also sought to undermine the current placement by criticizing the parental decision made by the caretaker . . . . [¶] [Alfredos] behavior is detrimental to the minors relationship because it puts them in direct conflict with each other. Since suspending visits, [the caretaker] has reported that the minors behavior has improved and that the conflict amongst the minors has minimized. However, . . . [Alfredo] continues to use [his youngest daughter] to obtain information about the girls. [¶] . . . [W]hen [Alfredo] request[s] to speak with the girls he does not speak with Gina or include[] her in any conversation. . . . [¶] A family therapist, Doctor Thomas, has been working with the three girls. He has not indicated they are ready to begin family therapy which would include [Alfredo]. The girls have not asked to see [Alfredo]. They have his cell phone number but do not request to contact him." Alfredo testified at the hearing that he wanted to visit with Gina, that he loved her and treated her as his own child, and that he was willing to follow the courts directions. The department and the childrens attorney agreed that visitation should be suspended until the therapist thought the girls were ready for supervised visitation, but that bi-monthly supervised telephone conversations would be alright. The court granted the departments section 388 petition, finding that it was detrimental for the children to continue visiting with Alfredo. The court explained, "I am going to order that [visitation] be terminated . . . . But I am going . . . to authorize, though, department to allow visits to resume when and such visitation will be facilitated by the minors therapist and the family therapist and thats the way the order is going to read. [¶] . . . [¶] As we know, the court—Im actually terminating the visits now, saying there are no visits but authorizing visits to resume. The court cannot delegate the issue of visitation to someone else, [n]ot even to a therapist. . . . [¶] . . . [¶] . . . However, I think we can live with an order that says that visitation can be facilitated by the therapist when satisfactory progress has been made." "We are carving out an ability for the department, were authorizing the department to have visits start again when there is progress made, satisfactory progress made to the court and that would be with input from the therapist." Alfredo filed a timely notice of appeal from this order.

Discussion

Alfredo contends that the court abused its discretion in granting the departments section 388 petition to suspend his visitation because substantial evidence does not support the courts finding that the change in visitation was in the minors best interests. He also contends that the court improperly delegated to the therapist the discretion to determine Alfredos visitation with his daughters.

Under section 388, a dependency order may be modified if the petitioning party establishes changed circumstances and proves that the proposed change would promote the best interests of the minor. A courts ruling on a section 388 petition will not be disturbed unless there was an abuse of discretion, and its factual determinations will not be overturned if they are supported by substantial evidence. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded on other grounds by statute, as stated in Cesar V. V. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)

Here, the department established, through the social workers report and testimony at the hearing, that Alfredos behavior changed after he found out that Gina was not his biological daughter and that his inappropriate behavior created undue tension and conflict between the minors. Alfredo acknowledges that a social workers opinion can be used by the court to support its findings (see § 355, subd. (b)), but asserts that in this instance, the social workers report was not sufficiently substantiated to constitute substantial evidence. Specifically, he asserts, "Without a report from the childrens treating therapist(s), and without statements from the children themselves, . . . the departments section 388 petition is based on unsupported, conclusory statements by the social worker." Although evidence from the case worker who supervised the visits and from the girls therapist might have aided the court in its determination and further supported its conclusions, such evidence was not essential. The social workers opinion and explanation, both as set out in her written reports and as she testified at the hearing, provided sufficient details about Alfredos interactions with the girls. The social worker provided competent evidence that despite requests not to isolate Gina, Alfredo continued to do so by not speaking to her on the phone when he called the girls and by reminding the girls that Gina was not his biological child. Moreover, there is no reason to believe that the social worker did not accurately convey the therapists opinion that the girls were not ready for family therapy with Alfredo. Additionally, the attorney for the minors supported the requested suspension of visitation, and Alfredo presented no evidence other than his own testimony to refute the departments evidence. Accordingly, the trial court did not err in suspending Alfredos visitation.

For this reason, the cases cited by Alfredo (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379-1381 [psychologists conclusionary placement recommendation lacked foundational facts and was therefore not probative on the minors overall emotional health]; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1751 [social worker beliefs about lack of parental internalization of parenting skills insufficient for detriment finding at 18-month review]; In re Joel H. (1993) 19 Cal.App.4th 1185, 1200-1203 [social workers conclusions not supported by the evidence]; In re Kristin W. (1990) 222 Cal.App.3d 234, 253 [same]) are distinguishable.

Moreover, the trial court did not abuse its discretion by ordering that visitation should be "facilitated by the therapist when satisfactory progress has been made." In In re Chantal S. (1996) 13 Cal.4th 196, 213, the court held that the trial court did not improperly delegate its judicial authority where the order specified that visitation was to be "facilitated" by the therapist, and that visitation was to begin when the therapist determined father had made "satisfactory progress for a time." The court reasoned that contrary to the fathers argument, the order did not vest the therapist with "absolute" discretion to determine whether visitation should occur, but gave the therapist only limited discretion to determine when "satisfactory progress" has been made and the ordered visitation might begin. (Ibid.) "The juvenile court apparently concluded that to protect [the minor], visitation should not begin until father makes sufficient progress in his own therapy. A juvenile court faced with this situation has two options. First, if circumstances warrant, it could deny father visitation, which in effect would require him to later move the family court to amend the order if he wished to secure visitation. . . . Alternatively, the juvenile court could issue the order it did, specifying that visitation commence in a carefully restricted setting when fathers chosen therapist determines that father has progressed satisfactorily." (Id. at pp. 213-214, fn. omitted.) Likewise, in this case, the court did not vest the therapist with absolute authority to determine visitation. Rather, the court specifically explained that it was merely "authorizing the department to have visits start again when there is progress made, satisfactory progress made to the court and that would be with input from the therapist."

For this reason, this case is distinguishable from In re Donnovan J. (1997) 58 Cal.App.4th 1474, relied upon by Alfredo. As explained in Donnovan, "The order in our case differs significantly from the order reviewed in Chantal S. The order before us states that Father has `no visitation rights without permission of minors therapists. It neither requires that the therapists manage visitation ordered by the court, nor sets criteria (such as satisfactory progress) to inform the therapists when visitation is appropriate. Instead it conditions visitation on the childrens therapists sole discretion. Under this order, the therapists, not the court, have unlimited discretion to decide whether visitation is appropriate." (In re Donnovan J., supra, 58 Cal.App.4th at p. 1477.)

Disposition

The order granting the modification petition is affirmed.

We concur: Corrigan, Acting P. J., Parrilli, J.


Summaries of

In re Gina V.

Court of Appeals of California, First Appellate District, Division Three.
Nov 25, 2003
No. A101065 (Cal. Ct. App. Nov. 25, 2003)
Case details for

In re Gina V.

Case Details

Full title:In re GINA V., a Person Coming Under the Juvenile Court Law. THE CITY AND…

Court:Court of Appeals of California, First Appellate District, Division Three.

Date published: Nov 25, 2003

Citations

No. A101065 (Cal. Ct. App. Nov. 25, 2003)