Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. JD10254
Bamattre-Manoukian, ACTING P.J.
This dependency began in 1998 with the removal of then seven-year-old K. and her three siblings from her mother’s care. Jurisdiction was sustained by the juvenile court as to all four children. The youngest of the four children was adopted out in 1999. K.’s two other siblings were returned home several years later with a plan of family maintenance. K. began living with foster parents in August 1998, and they became her court-appointed legal guardians in January 2003. The guardians moved with K. to New York in June 2003. At that time, the court made visitation orders, which it continued in December 2003, June 2004, March 2006, and September 2006. The mother appealed from all five of these orders, which we affirmed on appeal. (In re K.B. (Aug. 2, 2004, H026294) [nonpub. opn.]; In re K.B. (Nov. 17, 2004, H027053) [nonpub. opn.]; In re K.B. (Feb. 18, 2005, H027605) [nonpub. opn.]; In re K.B. (Nov. 17, 2006, H030165) [nonpub. opn.]; In re K.B. (May 25, 2007, H030766) [nonpub. opn.].)
On October 12, 2007, this court granted appellant’s request to take judicial notice of the appeals in H026294, H027605, H030165, and H030766.
The present appeal is from an order made on April 25, 2007, continuing the permanent plan of guardianship for K., continuing the orders previously made for visitation, and stating that K. “shall continue receiving counseling until no longer deemed necessary by the treating therapist.” Mother contends that the court abused its discretion by failing to require the social worker to investigate and report on the termination of K.’s ongoing therapy, and by failing to issue appropriate therapy and visitation orders. We disagree and, therefore, affirm.
BACKGROUND
Seven-year-old K. and her three siblings were taken into protective custody in August 1998 because of unsanitary conditions in the home that posed a risk to the children. K. and her six-year-old sister were placed together in a foster home. The juvenile court sustained jurisdiction as to all four children in September 1998. The youngest of the four children was adopted out in 1999. K.’s sister and her other brother were returned home several years later with a plan of family maintenance. K. has been in the same placement since August 1998. Reunification services were terminated in November 1999, and a plan of long-term foster care was ordered. Since the first year of the dependency, K. has consistently refused to participate in visitation with her mother, but did visit once with her father.
A new Welfare and Institutions Code section 366.26 hearing was held in 2003, after the Department recommended a change from long-term foster care to legal guardianship for K. Under a settlement plan worked out between the parties, the guardianship would be implemented and the court would then approve a clinical assessment of visitation between K. and the mother and father. The court would review visitation in 60 days. It was hoped that a visitation order could result from the clinical assessment that would be beneficial to all parties. The court took trial waivers from the mother and father and made the orders for guardianship. The mother appealed and this court affirmed the orders for guardianship. (In re K.B. (Oct. 21, 2003, H025623 [nonpub. opn.].)
All further statutory references are to the Welfare and Institutions Code.
A hearing was held in May 2003 to review visitation. After submission of testimony and other evidence, the court informed the parties that it could not find by a preponderance of the evidence that it would be detrimental to the physical or emotional well being of K. to order visitation. The court observed that a 12-year-old child should not be the one determining whether visitation should occur. The court set a date for the parties to return to court with a plan of visitation that would be reasonable and consistent with K.’s well being.
At a June 2003 hearing, the mother submitted a proposed visitation plan calling for weekly visitation in a therapeutic setting. Both the mother and the father objected strenuously to the proposed move by K.’s guardians to New York with K. The mother and father requested that, if the court approved the move, it authorize a face-to-face therapeutic session between K. and the mother and father prior to the move. The court granted the Department’s application to allow K. to move with her guardians to New York and continued the issue of visitation for a hearing in three days.
At the continued hearing, the social worker reported that K. had agreed to a visit with her mother and father at her therapist’s office. The court believed that there should be some visitation in the future so that the biological family could stay connected in some way, and that the parents should have some means of contacting K.’s therapist and the supervising social worker in New York. The court made the following written order regarding visitation: “Visitation by the mother [] and the father [] shall occur as follows: the mother and father are entitled to reasonable face to face contact consistent with the well-being of the minor. The visits are to be supervised in a therapeutic setting for a minimum of one hour when the child is in California or the mother or father is in New York. [¶] The supervising social worker shall have the discretion to increase the frequency and duration of visits and to permit unsupervised visits, in consultation with the minor’s therapist. [¶] The minor may initiate telephone contact with the mother and father. The mother and father are authorized to submit letters to the minor through the social worker. [¶] Visitation by the minor’s siblings [] shall be at the request of any of the children.”
Two days after the hearing, K. and her mother and father met for a therapy session with K.’s therapist prior to K.’s departure to New York with her guardians. The therapist reported that the visit went very well for K. The court’s written orders from the hearing were filed one day later, and the mother and father appealed from the visitation order. Citing section 366.26, subdivision (c)(4), as amended effective January 1, 2004, and the opinion of our Supreme Court in In re S.B. (2004) 32 Cal.4th 1287, this court affirmed the visitation order. (In re K.B., supra, H026294.)
A review hearing was held in December 2003, at which the social worker recommended that guardianship continue and that the previous visitation order remain in effect, with the exception that visitation by K.’s siblings be at the request of K. rather than any of the children. K. had had phone contact and one overnight visit with her sister but, since moving to New York, K. had not seen or talked to either her parents or her siblings and informed the social worker that she did not want to have contact with them. The mother informed the social worker in November 2003 that she had sent letters for K. every few weeks to the social worker and the supervising social worker. Neither social worker had received the letters, so the social worker suggested that the mother drop off future letters in person. The mother had dropped off a letter on December 2, 2003, and the social worker mailed it to K. the next day.
Both the mother and father expressed concerns that K. was not yet in therapy after having been in New York for five months, and that she was using her guardians’ name even though the court had denied a request to allow her to change her name. Counsel for father requested that the court fashion an order expressing that one of the expected issues for K.’s therapy sessions was family visitation and the circumstances under which it might occur. The court expressed concern that the communication it thought was going to occur had not occurred, that nine letters from K.’s parents had not gotten to New York, and that six months had gone by without K. being in therapy. The court stated that it was not for K. to dictate whether or not she visits with her parents and that the court was not happy with the delay that had occurred regarding K. being in therapy. However, the court adopted the findings and recommendations of the social worker, finding that they were still appropriate.
Both mother and father appealed from the findings and orders of the court at the December 2003 hearing. They argued in part that the court abused its discretion in continuing the June 2003 visitation order unchanged, as the order had already been proven ineffective. This court found that because the June 2003 visitation order allowed mother and father reasonable, supervised, face-to-face visitation with K. in New York consistent with K.’s well being, the order did not make visitation contingent on K. being in therapy, and neither mother nor father requested that the court expressly order the Department or the guardians to make specific arrangements for visits, the juvenile court did not abuse its discretion in December 2003 by continuing the June 2003 visitation order. Therefore, we affirmed the December 2003 visitation order. (In re K.B., supra, H027053.)
In the report for an interim review hearing set for March 30, 2004, the social worker reported that the foster mother passed away unexpectedly in February 2004, but that both K. and the foster father expressed a desire to have K. remain a part of his family. K. had received the letters and Christmas gifts the mother had provided the social worker to send to K. However, K. expressed to the social worker and the New York social worker that she did not want to have contact with her biological family.
K. began therapy on January 8, 2004, but K. was accompanied by her foster father at her request for the first four sessions. The therapist reported that he was open to seeing K. without the foster father and that he could see K. weekly if need be to address concerns regarding visitation with her mother, but that if K. knew that the objective of the therapy was to reunite her with her biological family she would likely be far less trusting.
The March 30, 2004 hearing was continued to April 19, 2004, at the request of the father’s counsel. On April 4, 2004, the mother filed a response to the social worker’s report, objecting to many of the social worker’s statements. On April 19, 2004, the hearing was continued to June 1, 2004. The social worker’s report prepared for the hearing stated that K. had met with her therapist alone three times, and had discussed issues regarding visitation, but the therapist reported that K. remained steadfast in her wish not to have contact with her biological family. The therapist also reported that he was not opposed to having contact with and receiving correspondence from K.’s family for K. The social worker recommended that the guardianship continue, that K. continue to receive counseling, and that the prior visitation order remain in effect. Mother filed a response to the social worker’s report, again objecting to many of the social worker’s statements.
At the June 1, 2004 hearing, the court agreed to the parents’ request to be able to send letters for K. directly to her therapist. The social worker stated that she was prepared to set up visitation between the parents and K., at the father’s request, should K. come to California that summer. The court informed mother that it was not in a position to change K.’s placement as there was no motion to do so before it. In adopting the social worker’s recommendations the court noted the objections of the parents and stated that the parents could send a letter directly to the therapist.
Both the mother and father appealed from the findings and orders of the court at the June 1, 2004 hearing, separately arguing that the court abused its discretion in continuing the June 2003 visitation order unchanged in light of K.’s resistance to visitation. Mother specifically argued that the court was required to take affirmative steps to ensure that the visitation order was complied with. Because there was nothing in the record before the court indicating that the Department would not follow through on its promise to set up a visit if K. came to California that summer, and the social worker informed mother and the court that she remained willing to arrange a visit by mother with K. at her therapist’s office in New York, this court found that the juvenile court did not abuse its discretion in June 2004 by continuing the June 2003 visitation order. (In re K.B., supra, H027605.)
At a hearing held in October 2004, following a section 388 petition filed by the social worker, the court ordered that letters sent to K. from the mother and father be sent to the social worker rather than K.’s therapist. Further post-permanency review hearings were held in January 2005, August 2005, and March 2006. At the March 7, 2006 hearing, the court ordered that placement and visitation for K. be continued unchanged. Mother appealed from that order and others. As she raised no issue as to the March 2006 order in her brief, this court affirmed the order. (In re K.B., supra, H030165.)
The social worker’s report for the scheduled September 2006 review hearing stated that K. was happy and stable in the home of her guardian, and that she had continued in counseling and had benefited from it. K.’s therapist reported that K. had recently discussed her biological family, but had continued to state that she did not want to return to California or to have contact with her biological family. The guardian had arranged for a place for K. to keep the letters and gifts from her family should she change her mind about contact. The social worker recommended that K.’s placement and visitation orders continue unchanged. On September 5, 2006, the court granted mother’s request for a continuance in order to respond to the social worker’s report.
In her written response, mother requested a “very clear order that spells out how and when and under what circumstances visitation is to take place.” “Her family is ready, willing and able to come to New York to facilitate the visit, but it is imperative that the order and the resulting arrangements by the social worker and guardian be specific and non-ambiguous.” “The present visitation order has proved unworkable and unsuccessful.” Mother also requested “a specific order regarding written communication by the mother and the siblings with K[].”
The continued hearing was held on September 25, 2006. Counsel for the Department stated that she was “loathe to change anything” in the language of the current visitation order without a full hearing. The court stated that visitation was not “stopped” as mother contended and that it was “not prepared to change the orders. If you would like to file a 388 [petition], which is a request for a change of orders based on a change of circumstances that are in the best interest of the minor, I would be more than happy to entertain such a request.” The court adopted the findings and recommendations of the social worker, which continued the prior placement and visitation orders, but added an order that phone calls may be initiated by K.
Mother filed an appeal from the findings and orders of the court at the September 25, 2006 hearing, continuing to contend that the court abused its discretion in continuing the visitation order. Because the juvenile court’s prior orders provided for visitation with K., there was nothing in the record before the court indicating that visitation would not occur as ordered, and the court invited mother to file a section 388 petition seeking a change of the visitation order based on a change of circumstances, this court found no abuse of discretion and affirmed the findings and orders. (In re K.B., supra, H030766.)
The social worker’s report for the scheduled March 2007 hearing stated that K. appears to be very happy in the home of her legal guardian. He and his new wife are licensed foster parents in New York and are committed to ensuring that K. attend therapy appointments. They have attempted to convince K. to have contact with her mother and sister. Instead, K. has created a notebook of letters and cards as a keepsake. On December 28, 2006, after her sister called her guardian’s home on Christmas Day, K. reported that she would like her mother and sister to stop trying to contact her.
On October 30, 2006, the New York social worker asked K.’s guardian whether they called Ulster County Mental Health (UCMH) to get K. a therapist. The guardian reported that they had, but had not heard back. On November 22, 2006, K.’s guardian reported that K. was on the waiting list for individual therapy at UCMH and had begun to attend the UCMH children’s activity and socialization group “Kids Together” twice a month. The social worker recommended that guardianship continue, that K. “continue receiving counseling until no longer deemed necessary by the treating therapist,” and that the prior visitation order continue unchanged.
An addendum to the report stated that the social worker mailed a birthday card to K. that the father had dropped off, and called both K. and the father to report the mailing. K. “chose not to say more than okay.”
At the scheduled March 2007 hearing, the court granted mother’s request for a continuance in order to respond to the social worker’s report. In her written response, mother objected to the continuation of the guardianship and requested that reunification services be re-instituted. “It is known that K[.] has an eating disorder, anger issues and post traumatic stress disorder, all conditions that need proper counseling to overcome, yet in spite of court orders and obvious need, without any given reason, K[.] is once again not in counseling. This is not in the best interest of the minor and in fact believed to be detrimental to the well being of the minor.”
At the continued hearing on April 25, 2007, counsel for K. informed the court that K. reported “[s]he’s getting set up with an new therapist back where it is that, where she lives and she indicates that she basically wants no contact with the mother or with her sibling and would wish that the mother would respect her wishes in this regard.” Mother argued that earlier reports hinted that K. has an eating disorder and, even though K now reports she is eating, she is not in counseling. “[G]uardianship was agreed to under family counseling. It’s been ordered and ordered and ordered and it never happened. She’s not in counseling again. There’s been no chance to mend the problems which is not healthy for her.” The court noted that mother had asked in her written response that reunification services be reinstated and stated that “there is a method to do that. So you might want to seek counsel.” “And I am going to note that the report indicates that the minor is actually faring well and I am going to adopt the findings and orders as presented today because I have no other legal vehicles before me today.” Mother filed a timely notice of appeal from the April 25, 2007 findings and orders.
DISCUSSION
The April 25, 2007 hearing was a post-permanency plan hearing under section 366.3, which provides for a review of the child’s status every six months. (§ 366.3, subds. (a), (d) & (e).) At the review hearings the court is to determine the continuing necessity for and appropriateness of the child’s placement, the continuing appropriateness and extent of compliance with the permanent plan for the child, the extent of the agency’s compliance with the plan, and the adequacy of services provided to the child. (§ 366.3, subd. (e)(1), (3), (4) & (6).) A parent whose parental rights have not yet been terminated is entitled to receive notice of and to participate in the review hearings. (§ 366.3, subd. (e)(10).) Thus, a parent can challenge departmental proposals and proposed court modifications. (In re Kelly D. (2000) 82 Cal.App.4th 433, 438.) However, it is “presumed that continued care is in the best interests of the child, unless the parent or parents prove, by a preponderance of the evidence, that further efforts at reunification are the best alternative for the child.” (§366.3, subd. (e)(10); In re Marilyn H. (1993) 5 Cal.4th 295, 310.) This is because the post-permanency review procedure allows the child permanency and the department the opportunity to provide the child with services, rather than constantly relitigating the necessity of continuing the child’s permanent plan. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145; In re Heather P. (1989) 209 Cal.App.3d 886, 890.)
The court’s orders following a review hearing are reviewed for abuse of discretion. “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; see also In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) We may not disturb the court’s decision unless the court “ ‘ “has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]” (In re Stephanie M., supra, at p. 318.)
The juvenile court ordered that guardianship continue, that K. “continue receiving counseling until no longer deemed necessary by the treating therapist,” and that the prior visitation order continue unchanged. Mother contends that the court’s orders are an abuse of discretion because the court “fail[ed] to consider [mother’s] specific objections to the breakdown in therapy and the lack of relevant information thereon.” She notes that there is nothing in the social worker’s reports to explain why K. is no longer seeing her former therapist, or why she has to be on a waiting list for a new one. “[T]there is virtually no hope of effectuating the court-ordered visitation plan without ensuring that the therapy plan is implemented in a meaningful and consistent manner.” “Ignoring the existence of the problem and of [mother’s] objections, the court summarily approved all of the social worker’s recommendations, which, as regards to therapy and visitation, were founded upon the blatant misinformation and lack of information in the reports. Indeed, the court’s related orders only make sense if there is a therapist in place. One cannot ‘continue receiving counseling until no longer deemed necessary by the treating therapist,’ if one does not have a therapist.” “A therapist cannot supervise visitation or exercise discretion on length, duration and quality of visitation in conjunction with the social worker, if he/she is not engaged in a therapeutic process with the minor.”
At the April 25, 2007 review hearing, the court accepted mother’s written response to the social worker’s review reports and allowed mother to challenge the social worker’s recommendation to continue K.’s permanent plan. In deciding to continue K.’s permanent plan, the court implicitly found that mother did not carry her burden of proving by a preponderance of the evidence that a further effort at reunification was the “best alternative” for K. (§ 366.3, subd. (e)(10).) The record supports that finding.
The social worker’s reports stated that K. was doing well in the home of her guardian, that K. was attending a group therapy program, and that K.’s guardian was committed to ensuring that K. attend her therapy sessions. Although the reports also stated that K. was not then seeing an individual therapist and was on a waiting list for one, the ordered plan made it clear that therapy was to continue until a therapist determined it was no longer necessary, and there was nothing indicating that individual therapy would not be reinstated as expected. Thus, the reports apprised the court of all relevant facts and circumstances underlying the social worker’s recommendations. (See Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 108; § 328.) The permanent plan includes a visitation order previously found to be in the child’s best interest, and the plan did not leave any aspect of visitation to the discretion of the guardian. (Compare In re M.R. (2005) 132 Cal.App.4th 269, 274.) As the court retains jurisdiction over the child, mother continues to have an opportunity to request reinstatement of reunification services based on a change of circumstances. On the record before us, we cannot say that the juvenile court abused its discretion in adopting the recommendations of the social worker and ordering continuation of K.’s permanent plan.
DISPOSITION
The findings and orders of the April 25, 2007 hearing are affirmed.
WE CONCUR:
MIHARA, J., duffy, J.