Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County. No. CK40837. Jacqueline H. Lewis, Juvenile Court Referee. Affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
ZELON, J.
E. R., mother of L. P. and L. R., timely appeals from October 27, 2006 and March 9, 2007 orders (1) denying her motion, based on allegedly changed circumstances, to enforce existing conjoint therapy and visitation orders, and terminating visitation; and (2) terminating her parental rights. (Welf. & Inst. Code, §§ 388; 366.21, subd. (h); 366.26; all further undesignated section references are to the Welfare and Institutions Code.) Mother contends the juvenile court erred under In re Hunter S. (2006) 142 Cal.App.4th 1497 by failing to enforce earlier orders for conjoint therapy and visitation and delegating discretion whether and under what circumstances visitation occurred to the children and their therapist. Mother further argues those errors prevented her from showing she maintained beneficial regular visitation and contact with her daughters under section 366.26, subdivision (c)(1)(A), which if shown may have justified not terminating her parental rights. We reject these contentions and affirm the orders.
Under section 366.26, subdivision (c)(1)(A), a juvenile court which finds by clear and convincing evidence a dependent child is likely to be adopted must terminate parental rights and free the child for adoption “unless the court finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
FACTUAL AND PROCEDURAL BACKGROUND
L.P. was born in 1995; her father died before her birth. L.R. was born in 1996. Her father has had no contact with her since 1998 and is serving a 55-year prison term for murder in Michigan; appointed counsel appeared for him at the juvenile court, and he is not a party to this appeal.
This case involves the seventh DCFS referral since 1999. From March 2001 – June 2003, the court removed the children from Mother’s custody based on sustained allegations that (1) Mother’s conviction of felonious assault with a deadly weapon and one-year jail sentence, (2) Mother’s and her boyfriend Eric C.’s engaging in domestic violence, and (3) the absence of other relatives who could care for the girls, endangered them. The court returned the children to Mother’s custody and terminated the case after Mother received family preservation services.
This case began on May 5, 2004, when the children’s school contacted DCFS because the girls complained and displayed evidence of physical abuse by Mother, who had moved them months before but never given the school their current address. The children also told the social worker Mother used drugs, had sex in their presence with Eric, who had tried to sexually assault L.R. until Mother intervened, and failed to feed them properly. DCFS filed a new dependency petition under section 300 and temporarily placed the girls with the foster mother who had cared for them during the earlier case. At a May 12, 2004 hearing, the court continued the girls’ placement, ordered monitored visitation and family reunification services, and set the case for a disputed jurisdictional hearing.
At the July 2, 2004 jurisdictional hearing, the court received in evidence reports stating that since the May 12 hearing, Mother had attended one and missed one scheduled visit with the girls, and had an unscheduled visit when she happened to encounter them and their foster mother at a restaurant. The reports also disclosed the girls did not want to visit or live with Mother. Thereafter, pursuant to a mediated agreement, Mother, who earlier denied all allegations, pled no contest to an amended petition, admitting she (1) repeatedly used excessive physical discipline on the girls, including hitting them with an extension cord, (2) abused drugs, as evidenced by a positive May 6, 2004 test for cannabinoids and cocaine, and (3) inappropriately exposed the girls to sex, all of which placed them at risk of physical and emotional harm. The court dismissed all other allegations, declared the girls dependent children of the courts, continued their placement with the foster mother, and ordered monitored visitation and conjoint therapy for Mother and the children. Mother refused an offered post-hearing visit with the girls, claiming she had to go to work.
Two and a half months later, on September 17, 2004, police arrested Mother on related criminal charges arising from her abuse and neglect of the girls. In the period between July 2 and September 17, 2004, Mother missed two scheduled visits with the girls and failed to attend therapy or test for drug use. On October 29, 2004, after Mother pled no contest to one count of mayhem and two counts of willfully inflicting or permitting a child to suffer physical pain under circumstances likely to produce great bodily injury or death (Pen. Code, §§ 203, 273a, subd. (a)), a court dismissed the remaining charges and sentenced her to two years in prison. Mother completed her term and was released on October 28, 2005.
While Mother was in prison, DCFS twice changed the girls’ placement because of problems with the foster parents; in March 2005, DCFS placed the girls with their current foster mother (with whom they are happy and who is seeking to adopt them), who resumed their previously interrupted individual therapy. Also while Mother was in prison, the court held a series of hearings reviewing her compliance with the case plan and the girls’ progress. During her incarceration, Mother attended therapy, drug counseling, and anger management programs, but did not test for drug use. She also regularly visited with the girls by telephone and letters. The girls reported Mother blamed them for her situation, told them to ask to be returned to her custody, asked about the foster mother’s personal life, and generally made them uncomfortable. At an August 17, 2005 hearing, after considering reports outlining the facts discussed above and Mother’s testimony, the court terminated her family reunification services, finding she complied with the reunification plan only when incarcerated, and the likelihood of her further compliance after her release from prison was too low to further delay setting a permanent plan for the girls’ care. The court set a December 14, 2005 hearing to select a permanent plan of adoption, guardianship, or other planned permanent living arrangement under section 366.26. Mother did not seek appellate or writ review of the August 17 orders.
On December 12, 2005, after her release from prison, Mother filed her first section 388 petition. Mother sought conjoint therapy with the girls and unmonitored visitation. She attached certificates showing that while in prison, she earned her high school equivalency certificate and completed various parenting, anger management, and drug counseling programs. She also attached an undated letter from the residential program she had entered after being discharged from custody stating she was in compliance with her drug counseling and testing programs. A DCFS report disclosed Mother had been participating regularly in monitored visits since her release. The report also disclosed the girls wanted to maintain some relationship with Mother but wanted to live permanently with their current foster mother, who, while interested in adoption, did not want to pursue that option if Mother successfully could resume being a custodial parent. At the December 14 hearing, the parties agreed conjoint counseling was in the girls’ best interest, and the court ordered it to begin once the girls obtained a new therapist. The court continued monitored visitation. As a result, Mother withdrew her section 388 petition.
The court conducted the next hearing on January 13, 2006. The court considered reports which disclosed Mother left her residential drug program in December without permission after failing to participate in any of its programs. Mother also missed two visits with the girls. Mother and Celestine P., who Mother asked to monitor her visits, denied that Mother had abused the girls. The report also noted the girls had ceased individual therapy, and no conjoint therapy had been arranged, because their therapist believed the parties could not afford his fees. As a result, DCFS reported it had arranged for individual and conjoint therapy to resume with a different therapist as soon as an opening became available. At the hearing, the court considered the foster mother’s testimony that she and the girls were interested in adoption but wanted to remain in guardianship to allow Mother to make further attempts to demonstrate her fitness as the girls’ physical custodian. The court terminated Mother’s telephonic visitation, otherwise ordered the guardianship to continue under the same conditions, set adoption as the likely permanent plan, and ordered DCFS to recommend whether adoption by the foster mother was appropriate.
The next hearing occurred on March 2, 2006. The court considered a report which disclosed that Mother and the girls visited on January 27, 2006 at the DCFS office in a visit monitored by Celestine P. Before the visit, the social worker interviewed the girls who stated they were positive about the visit and comfortable with Celestine P. acting as monitor. During the visit, the social worker occasionally watched through a glass partition and saw nothing amiss, and after the visit Mother told the social worker the visit had gone well. A scheduled February 10, 2006 visit was cancelled the same day when Celestine called at 3:00 p.m. and said she was unavailable. However, a few days later the foster mother delivered a letter from one of the girls to the social worker which disclosed that during the January 27 visit Mother and Celestine accused the girls of lying about Mother, and threatened to kill them unless they told the court they were opposed to adoption and wanted to live with Mother; as a result the girls feared and no longer wanted to visit or live with Mother. The social worker thereafter interviewed the girls who corroborated the letter. When confronted, Mother accused the girls of lying. The court continued the hearing because L.R.’s attorney was unavailable and the court was engaged, but ordered: “Monitored visits between the children and Mother shall occur. Details of those visits to be arranged by the social worker after consultation with the children’s therapist and with the children, which includes discussing the safeguards that would be present during monitored visits, including the social worker to be doing the monitoring.”
On March 20, 2006, Mother filed her second section 388 petition. She sought “visits to be liberalized to unmonitored with DCFS discretion to further liberalize[,]” and conjoint counseling with the girls. Mother alleged she “has completed an anger management program, 2 parenting programs, and a drug program. She currently participates in NA and tests clean on demand. Mother maintains regular and consistent visits with the children twice per week. Mother continues to improve herself by obtaining her GED, and a pharmacology training certificate. Please see attached. [¶] Mother continues to address the case issues, has learned to be a better parent, loves her children, and maintains a positive relationship with them. The visits are going well and minors have expressed to mother that they wish to go home with mother. It would therefore be in minors’ best interests if their visits were unmonitored and that they participate in conjoint counseling to work out any outstanding case issues.” Nearly all the supporting documents, however, described programs Mother had completed while in prison. The only new documents disclosed Mother (1) provided a urine sample for a drug test on December 29, 2005 without stating the results; (2) worked 43.50 hours for one employer during an unspecified period ending January 7, 2006; (3) worked 15.75 hours for a second employer from January 27 – February 10, 2006; and (4) had been “scheduled for a Parole Outpatient Clinic appointment” with a social worker on February 16, 2006, as a condition of her parole. Other than the last two documents, Mother’s petition did not address events which occurred after the January 13, 2006 hearing.
At the next hearing on April 13, 2006, the court considered a DCFS report which disclosed that before the January 27, 2006 visit described above, the girls’ behavior had improved so dramatically that the foster mother had ceased taking them for therapy. After that visit, the girls’ home and school behavior so deteriorated that the foster mother sought to resume their therapy. On March 22, 2006, the foster mother and social worker accompanied the girls to a session with their therapist, Dr. Koharchick, who interviewed each girl separately. The girls confirmed their earlier accounts that at the January 27 visit, Mother and Celestine P. threatened to kill them unless they told the court they wanted to resume living with Mother, both girls were traumatized by the events, which they took seriously, and as a result both girls no longer wanted to visit or live with Mother. Dr. Koharchick and his supervisor opined the girls’ account was credible and recommended that the court terminate Mother’s visitation with both girls because continued visits would be detrimental. DCFS concurred in that recommendation. Mother continued to deny that anything inappropriate happened at the January 27 visit.
At the April 13 hearing, the court again continued the hearings on Mother’s section 388 petition and the girls’ permanent plan because the court was engaged and one girl’s attorney was unavailable, but terminated Mother’s visitation, finding a prima facie case that further visits would be detrimental to the girls.
A report prepared for a May 11, 2006 hearing disclosed that the girls’ behavior continued to deteriorate, but that Dr. Koharchick resumed therapy in May. A report prepared for a May 15, 2006 hearing disclosed the girls and foster mother now preferred adoption as the permanent plan. At brief hearings on May 11 and 15, 2006, the court continued the matter until July 13, 2006 because it was engaged in other trials. The court kept all existing orders in effect, but gave DCFS discretion to permit monthly monitored visits at its office.
A report prepared for the July 13, 2006 hearing disclosed the foster mother had stopped taking the girls to therapy because she thought DCFS wanted a different therapist to treat the girls, and questioned whether adoption remained the best permanent plan. The reports also disclosed Mother had contacted Dr. Koharchick regarding conjoint therapy, but he did not speak to her because he thought it inappropriate. At the July 13 hearing, which was continued due to court congestion, Mother’s counsel stated Mother wanted to have the previously ordered monthly visits, but the girls were not in therapy and visitation had not been arranged. The foster mother’s counsel stated the foster mother thought the social worker wanted a different therapist, but now was attempting to resume the girls’ therapy. The court ordered the visits to resume as soon as the therapy resumed. At a September 6, 2006 hearing, counsel for DCFS stated the social worker had not asked the foster mother to switch therapists.
The court held the consolidated hearings regarding Mother’s section 388 petition and whether permanently to terminate Mother’s visitation and select a permanent plan on October 12, 17, and 27, 2006. The court received in evidence the reports described above and the attachments to Mother’s second section 388 petition. The court also considered the testimony of the social worker and Mother.
The social worker testified Mother saw the girls eight times between her October 28, 2005 release from prison and the January 27, 2006 visit. The social worker confirmed she observed nothing inappropriate during the January 27 visit, the girls appeared undisturbed immediately thereafter, and she first learned of Mother’s and Celestine P.’s threats and inappropriate behavior a few weeks later when the foster mother met with her. The social worker also recounted that before that visit, the girls at different times expressed desires both to resume living with Mother and to continue living with their foster mother; thereafter, both girls maintained they no longer wanted to live with Mother. The social worker admitted no conjoint therapy ever occurred, explaining there were “problems arranging the conjoint counseling between Mother and the children’s therapist Dr. Koharchic[k], and also Dr. Koharchic[k] would not treat Mother based on a conflict of interest as he was the children’s therapist.” The social worker also admitted she wrote in a December 14, 2005 report she “did not find Dr. . . . Koharchic[k] . . . credible because he did not have good rapport with the children[,]” but nonetheless permitted him to resume acting as their therapist in February 2006 because “[t]he foster mother had communicated with [her] [s]he felt the relationship had improved between the children and the doctor . . . .” The social worker stated she found Dr. Koharchick’s recommendation that visitation be terminated credible. Even before the January 27, 2006 visit, the social worker was concerned about the children visiting Mother because of “Mother’s association and her honesty with [DCFS] and the children’s statements about visits with her.” The social worker opposed unmonitored visitation between Mother and the girls because “the children will continue to be put at risk [because] . . . Mo[ther] has not accepted her responsibility for what has happened; also, [because] . . . the children made statements to me that they are afraid of their mother and she had threatened them.”
Mother testified she had completed 52 parenting classes, 60 anger management classes, domestic violence, children’s custody, and drug programs, and was scheduled to begin an unspecified treatment program the next day. She also claimed to have a stable job and home. She admitted having used drugs in the past, but denied ever physically abusing or permitting any sexually inappropriate behavior with the girls. She also denied threatening, arguing, or losing her temper during visits. She denied making any threats or losing her temper during the January 27 visit, but speculated that Celestine P. may have done so while she was in the restroom. Mother said she would accept either monitored or unmonitored visitation.
Counsel for DCFS and both girls argued the court should deny Mother’s section 388 petition and permanently terminate her visitation. Mother’s counsel asserted that Mother was remorseful for her past behavior, had made substantial efforts to improve, and conjoint counseling was crucial to restore her relationship with the girls. The court denied the petition and permanently terminated her visitation, explaining that although Mother partially completed and participated in the case plan, she failed to make progress “in so many areas of this case.” The court also agreed “it’s very rare in this court that we have a child who says, ‘I don’t want further contact.’ It’s just very rare. No matter what happens, what parents do, that is a very rare thing to happen. There’s been nothing put in front of me that these girls had been coached, brainwashed, or have any other reasons for their desires other than the statements and actions by Mother that have caused them to feel this way. [¶] They are in a permanent plan. They are in a stable permanent plan. They want to remain there. They’re simply awaiting the completion of the home study.” Mother timely appealed from the October 27, 2006 order. The case continued in the juvenile court while that appeal was pending.
On March 9, 2007, the court held a hearing under section 366.26 to determine whether to terminate Mother’s parental rights and free the girls for adoption by their foster mother. The court considered reports which explained DCFS had approved the foster mother as the girls’ adoptive parent, both girls wanted their foster mother to adopt them, and they were thriving at home and school. Despite proper notice, Mother failed to appear. Counsel for DCFS, the girls, and the foster mother all urged the court to follow the recommendation, terminate Mother’s parental rights, and free the girls for adoption by the foster mother. Counsel argued the section 366.26, subdivision (c)(1)(A) exception based on continued beneficial regular visitation and contact did not apply because the court properly had terminated her visitation and conjoint therapy which were detrimental to the girls. Mother’s counsel argued the court should reinstate visitation and conjoint counseling under In re Hunter S., supra, 142 Cal.App.4th 1497 because the court’s failure to enforce its visitation and conjoint counseling orders prevented Mother from demonstrating the applicability of the cited exception.
The court terminated Mother’s parental rights and freed the girls for adoption by the foster mother. The court distinguished In re Hunter S., explaining: “Hunter S. [] involved a . . . f[i]nd[ing] that visitations were in the best interest of the children . . . [.] [T]he appellate court said if you didn’t believe it was in their best interest; if you believed it was detrimental, the court needed to say so. That is exactly what the court did. [¶] The court said this was detrimental for these children to visit with the mother, and this c[ourt] issued that order, it was a specific order. I made all those detriment findings . . . .”
The court further explained its ruling: “[T]he court does not believe that any exceptions to adoption exist, certainly not [section 366.26, subdivision] (c)(1)(A). [¶] The relationship with the mother . . . not only doesn’t [] rise to the level as to outweigh the benefit to the children of permanence, it is actually toxic and detrimental to these children, and that’s not something that we find here often. [¶] The children have not wanted to visit during periods of this case. The file is replete with examples of what happened during these visits, how toxic Mother is to them.”
Mother timely appealed from the March 9, 2007 order. We consolidated her two appeals.
DISCUSSION
Mother contends the court erred under In re Hunter S., supra, 142 Cal.App.4th 1497 in denying her section 388 motion and later terminating her parental rights by failing to enforce its earlier orders for conjoint therapy and visitation, and by delegating discretion whether and under what circumstances visitation occurred to the children and their therapist. Those errors, she argues, guaranteed she would be unable to show she had maintained beneficial regular visitation and contact with her daughters, the only possible exception which would have justified not terminating her parental rights. She concludes the error was prejudicial because we cannot say further visitation and conjoint therapy would not have significantly improved her relationship with the children. County Counsel argues that, to the extent Mother’s contention involves challenges to orders entered before the court permanently terminated her visitation on October 27, 2006, she waived such challenges by failing to object. County Counsel further argues the court did not violate Hunter S., and, in any event, any error was harmless. We conclude Mother’s contentions lack merit.
I. Waiver
First, we address County Counsel’s waiver argument. DCFS-approved monitored visitation began shortly after Mother’s October 28, 2005 release from prison. On December 14, 2005, as stipulated by all parties, the court ordered monitored visitation to continue, and first ordered conjoint therapy. As a result, Mother withdrew her first section 388 motion. The court did not terminate the conjoint therapy order until it denied Mother’s second section 388 motion on October 27, 2006. Thus, as to conjoint therapy, there was no adverse order Mother could have challenged before that entered on October 27, from which she timely appealed, and thus she cannot be deemed to have waived her challenge to that portion of the order denying her request for conjoint therapy.
As to the visitation order, although Mother did not seek review of the April 13, 2006 order terminating visitation, the court modified that order on May 15 by giving DCFS discretion to permit monthly monitored visits at its office. Thus, the court preserved the visitation option until it permanently ended visitation by its October 27, 2006 order denying Mother’s section 388 petition in its entirety. Given the connection between the visitation and conjoint therapy orders, under these circumstances we conclude Mother adequately preserved her appellate claims.
In any event, even if Mother could be said to have waived her challenge to that portion of the order terminating visitation, if the court prejudicially erred in making the challenged orders, that error violated Mother’s due process rights. (In re Hunter S., supra, 142 Cal.App.4th at pp. 1504-1505.) Although the waiver/forfeiture rule applies in dependency cases, it is not automatic, and courts retain discretion to reach important issues of law in dependency cases even when the rule applies. (In re S.B. (2004) 32 Cal.4th 1287, 1292-1294.) Because this case involves such an issue, we would reach it despite any waiver or forfeiture by Mother.
II. Denial of Mother’s Second Section 388 Petition
Mother contends her case is controlled by In re Hunter S., supra, 142 Cal.App.4th 1497. In Hunter S., the court removed Hunter from his mother’s care, then returned him to her custody a few months later when she substantially complied with the case plan. Shortly thereafter, however, the court again removed Hunter from his mother’s care following her conviction and imprisonment for crimes unrelated to her parenting. Mother maintained regular contact and her “‘loving close relationship’” with Hunter by letter until her release, after which she consistently sought regular visitation and conjoint therapy. (Id. at p. 1501.) Although the court repeatedly ordered visitation and conjoint therapy over several years, and never made a finding that continued visitation would be detrimental to Hunter, the boy consistently refused to visit his mother or participate in conjoint therapy. The court neither rescinded nor enforced its orders, conditioning visitation and conjoint therapy on Hunter’s willingness to participate and his therapist’s approval if she felt it would be beneficial. When the mother brought a section 388 petition seeking enforcement, the court denied it and later terminated her parental rights. The appellate court reversed, finding the court erred by not enforcing its orders and delegating discretion whether visitation and therapy occurred to Hunter and his therapist. The court concluded the errors prejudiced the mother because the court could not say that further visitation and therapy could not restore the previously warm and loving parent-child relationship. (Id. at pp. 1504-1508.)
We disagree with Mother that Hunter S. controls her case. Here, the court expressly terminated Mother’s visitation and made a finding that continued visitation was detrimental to the girls, based on the earlier January 27, 2006 visit. At the October 2006 hearing, the court impliedly credited the girls’ account of the January 27 visit and rejected Mother’s contrary version. Because substantial evidence supports that finding, the court did not abuse its discretion. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
Although the court later gave DCFS discretion to conduct monitored visits, it did not rescind the no visitation order. To the extent the court delegated unlimited discretion over visitation to DCFS, it erred. (In re Hunter S., supra, 142 Cal.App.4th at p. 1505.) However, the error did not cause prejudice in this case. The court’s orders did not deprive Mother of an opportunity to demonstrate other changed circumstances, or that her bond with her children could be re-established.
To the contrary, the record reflects that Mother did not have a “warm loving relationship” with her daughters. Originally, the court removed the girls from Mother’s care for over two years, not a few months as in Hunter S., because of her criminal convictions and parental abuse. Moreover, despite her having admitted severely abusing the girls in this dependency case and the resulting criminal prosecution, after her release from prison Mother consistently denied ever having abused or neglected her daughters, even repeating the claim under oath during her testimony at the section 388 petition hearing. Throughout her visits with her daughters, they complained she told them they lied about the abuse, made them uncomfortable, and demanded they tell the court they wanted to live with her, detrimental conduct that escalated during the January 27 visit into threats to kill them if they failed to comply. The girls told their therapist they feared their mother, and the therapist recommended that visitation cease. In short, there is no reason to believe continued monthly visitation and conjoint therapy in the five months from May to October 2006 would have in any way altered this troubled parent – child relationship, let alone changed it so substantially as to overcome the earlier finding that continued visitation was detrimental to the girls.
That being the case, the court did not err in either denying Mother’s petition or terminating Mother’s parental rights.
DISPOSITION
We affirm the challenged orders.
We concur: PERLUSS, P. J., WOODS, J.