Opinion
C052964
5-11-2007
In re J.E. et al., Persons Coming Under the Juvenile Court Law. SISKIYOU COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. S.D., Defendant and Appellant.
NOT TO BE PUBLISHED
Appellant S.D. appeals an order terminating his visitation with his daughter, A.D., and A.D.s half brother, J.E. He contends the juvenile court abused its discretion in terminating visitation because there was no substantial evidence visitation would be detrimental to either A.D. or J.E. We disagree and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is the father of A.D. Until November 2005, A.D. lived with her mother, her half brother J.E., and appellant. Appellant is not J.E.s father.
On November 10, 2005, three-year-old A.D. and six-year-old J.E. were placed into protective custody after they left home without their mothers or appellants knowledge and were found some distance away, dirty and improperly dressed. A police officer and social worker who visited the childrens home reported that it was filthy.
On November 15, 2005, the Siskiyou County Human Services Department filed an original dependency petition pursuant to Welfare and Institutions Code section 300, subdivision (b) (undesignated section references are to the Welfare and Institutions Code), alleging that "there is a substantial risk that the child[ren] will suffer, [sic] serious physical harm or illness, [sic] [¶] as a result of the failure or inability of [their] parent or legal guardian to supervise or protect [them] adequately" and/or "the inability of [their] parent or legal guardian to provide regular care for [them] due to the parents or legal guardians mental illness, developmental disability or substance abuse."
On November 16, 2005, the juvenile court ordered that the children be detained and that services be provided to the mother and appellant. The court also ordered "there be a minimum of three visits per week between the parents and the children. [Appellant] specifically will be allowed to visit with both children."
On December 12, 2005, the court sustained the allegations set forth in the petition and ordered that the prior detention orders remain in effect pending completion of the disposition hearing.
The disposition report filed January 5, 2006, indicated that appellant tested positive for methamphetamine on November 28, 2005, and recommended he be denied reunification services.
On January 10, 2006, following a contested dispositional hearing, the juvenile court adjudged the minors dependents of the court and ordered that reunification services be provided to both appellant and the mother.
On January 13, 2006, the minors left foster care and moved in with J.E.s paternal grandmother. She remained the childrens caregiver throughout the underlying proceedings.
On January 20, 2006, the department filed a motion for reconsideration of the courts order granting appellant reunification services on the ground he tested positive for methamphetamine on January 10, 2006. It is unclear from the record on appeal whether the court ever ruled on this motion.
On May 17, 2006, the department filed a report in anticipation of the six-month review hearing, scheduled for May 22, 2006. The report stated that "both parents love the children and want them returned to their care." A.D., however, told her caregiver that she "does not want to visit her parents," and according to the caregiver "usually mopes after visits and has thrown up after visits about ten to twelve times." A.D.s babysitter agreed that A.D. is "moody" and "withdrawn" on visit days.
The report also indicated that A.D. told her babysitter and two social workers that appellant touched her "inside" with his finger. On one occasion, she said "it" happened eight times and on another she said it happened four times. The allegations were classified as "inconclusive."
The report also revealed that appellant began individual therapy on February 14, 2006, but had "not work[ed] to any degree on his core issues." His drug treatment plan called for biweekly drug counseling sessions. He attended counseling sessions on February 7 and 21, 2006, but failed to attend any additional sessions after testing positive for methamphetamine and marijuana on February 21, 2006. He told his counselor that he could not attend Alcoholics Anonymous or Narcotics Anonymous meetings because "they were a trigger for him to use substances." He again tested positive for methamphetamine on May 5, 2006, immediately after visiting with the children.
On June 9, 2006, the court held a six-month review hearing. The social worker who prepared the report in anticipation of the hearing testified that appellant visited the children "quite regularly," was appropriate during visits, and shared "a certain bond" with them. However, he also noted that A.D. was unhappy on visit days, threw up after visits, and according to appellant, had begun to shy away from him. Neither A.D. nor J.E. told the social worker that they did not want to visit appellant.
The social worker confirmed that there was no information to corroborate A.D.s sexual abuse allegations. He considered the possibility that the caregiver suggested to A.D. that appellant molested her, but concluded that was not the case. He believed that if the court continued visitation between appellant and the children, the department could "arrange supervision that would preclude any possibility of any sexual abuse."
Appellant testified that A.D. was happy to see him and appeared to enjoy their visits. He denied molesting A.D. and stated that he believed the sexual abuse allegations came from the caregiver or the babysitter. While he admitted being a drug addict for over 11 years, he said he had only used drugs once recently — on May 4, 2006—the day before his dirty test. He denied being under the influence of methamphetamine during his visit with the children the following day. He acknowledged that he stopped going to drug counseling after testing positive for drugs on February 21, 2006.
Counsel for the minors argued that appellants visits with A.D. should not be terminated but reduced to one per week and that J.E. be permitted to attend those visits at the departments discretion.
The juvenile court found visitation between appellant and the children "is detrimental to the children" and ordered that it be "discontinued."
DISCUSSION
Appellant claims the juvenile court abused its discretion in terminating visitation because there was no substantial evidence visitation would be detrimental to either A.D. or J.E. He argues the juvenile court improperly relied on A.D.s sexual abuse allegations in making its determination. He also asserts that "no evidence was presented that [he] behaved inappropriately during visits as a result of his drug use, or appeared to be under the influence or unengaged with the children," and thus, "there was no evidence that his drug use rendered the visits detrimental to the children." We are not persuaded.
As a preliminary matter, respondent contends appellant lacks standing to challenge the termination order as to J.E. because he "has no legal right to visitation with J.E. and therefore, cannot challenge any order terminating the prior discretionary allowance of visitation."
In juvenile dependency proceedings, only a party aggrieved by the judgment has standing to appeal. (In re Lauren P. (1996) 44 Cal.App.4th 763, 768.) "`Whether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened. [Citation.]" (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034.)
In ordering visitation in this case, the juvenile court expressly provided that appellant "be allowed to visit with both children." The department did not challenge the courts order, and appellant visited with both children. Consequently, appellant has standing to challenge the termination of his visitation with J.E. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1034.)
We now turn to the merits. Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings. (In re Luke L. (1996) 44 Cal.App.4th 670, 679.) "Visitation shall be as frequent as possible, consistent with the well-being of the child." (Welf. & Inst. Code, § 362.1, subd. (a)(1)(A).) However, "[n]o visitation order shall jeopardize the safety of the child." (Id., subd. (a)(1)(B).) It is ordinarily improper to suspend or halt visitation absent a showing of detriment. (In re Luke L., supra, 44 Cal.App.4th at p. 679; In re David D. (1994) 28 Cal.App.4th 941, 954.)
We review the juvenile courts finding that visitation with appellant would be detrimental to A.D. for substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) We review the juvenile courts order terminating appellants visitation with J.E. for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Even absent the sexual abuse allegations, ample evidence supports the courts determination that visitation would be detrimental to the children. Appellant made virtually no progress toward alleviating his substance abuse problem. Following the childrens removal from appellants custody in November 2005, he tested positive for methamphetamine on November 28, 2005, January 10, February 21, and May 5, 2006. Appellant quit attending his drug counseling sessions in February 2006 and essentially refused to attend Alcoholics or Narcotics Anonymous meetings. Moreover, A.D. was unhappy prior to visits, often threw up after the visits, and told her caregiver that she did not want to visit her parents.
We reject appellants suggestion that a finding of detriment based on his ongoing drug use required evidence that he "behaved inappropriately during visits as a result of his drug use, or appeared to be under the influence or unengaged with the children." There was evidence in the record that he attended at least one visit while under the influence of methamphetamine. While there was no evidence that he acted inappropriately during the visit, the juvenile court need not wait for appellants drug use to actually harm the children before taking action. Appellants ongoing drug use and failure to comply with his treatment plan provide a sufficient basis for the courts ruling.
In re W.O. (1979) 88 Cal.App.3d 906, relied on by appellant, is readily distinguishable. There, the juvenile court ordered two minor children removed from the home after cocaine and marijuana were discovered there. (Id. at pp. 907-908.) The juvenile court found that the presence of the drugs presented a "remote" possibility that the children could be harmed if they remained in the home. (Id. at p. 907.) The Court of Appeal reversed, finding that "remote possibilities do not provide grounds sufficient for removing a child from parental custody." (Id. at pp. 910-911.) In contrast, here, there is evidence of drug use; appellant was under the influence of methamphetamine during a visit with the children. That coupled with appellants failure to follow his drug treatment plan or address his core issues during therapy, his refusal to attend Alcoholics or Narcotics Anonymous meetings, and A.D.s adverse reactions to the visits create more than a remote possibility of detriment to the children.
Substantial evidence supports the juvenile courts determination that visitation with appellant would be detrimental to A.D. and J.E. Accordingly, the juvenile court did not abuse its discretion in terminating appellants visitation with A.D. and J.E.
DISPOSITION
The judgment (order) is affirmed.
We concur:
BUTZ, J.
CANTIL-SAKAUYE, J.