Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 81005. Jane A. Cardoza, Judge.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin B. Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Gomes, J.
In this dependency proceeding, M.M. (father), father of 12-year-old M.M. III (M.), appeals from a post-permanency visitation order. He challenges the juvenile court’s decision to reduce visitation to every other month and to give the Department discretion to increase the frequency of visits to once a month conditioned on 10 court days’ written notice to all counsel with updated discovery to include a letter from M.’s therapist supporting monthly visits. Finding no error, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
M. first came to the attention of the Fresno County Department of Children and Family Services (Department) in 1997, when he was detained due to parental neglect stemming from his parents’ substance abuse problems. While M.’s mother failed to complete reunification services, father completed his services and was granted sole legal custody of M. in June 2000. Mother was granted visitation with M., to be supervised by father.
In April 2002, M. and his three half-siblings were detained due to the family home being filthy and lacking adequate food. Both father and mother were denied reunification services. M. and a half-brother were placed with a relative. In October 2002, the Department filed a Welfare and Institutions Code section 387 petition to remove M. from that placement based on allegations that he had sexually molested his half-brother and his behavior subjected M. to possible harm from one of his care providers. M. was moved to a foster home.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
In January 2003, a hearing was held to select a permanent plan for M. (§ 366.26.) The court identified long-term foster care as M.’s permanent plan. At the time of the hearing, mother had not visited M. and father had not visited him since July 2002. M. did not want to see either parent. The court ordered supervised visitation when therapeutically recommended. M. had been in twelve placements during his six years of life - five of them since April 2002.
Over the next three years, neither father nor mother contacted the Department to request visits with M. Accordingly, neither parent visited him. M. was removed from one foster home when the foster parent was unable to continue providing care due to a family death, and a second foster home due to his escalating misbehavior, which included self-mutilation and verbal and physical aggression that presented a danger to other children in the home. In June 2004, M. was placed in a third foster home, where he lived throughout the remainder of these proceedings. M., who had a history of difficult or oppositional behaviors, such as temper tantrums, disorderly conduct with peers and in school, and being argumentative and defiant, received therapy from May 2002 through April 2003. He resumed therapy in June 2004 due to the change in placement and concerns about his misbehavior. M. was diagnosed with ADHD and placed on medication to control his symptoms. M.’s therapist reported in May 2005 that M. had been discharged from therapy after meeting his mental health goals.
Despite being discharged from therapy, M. continued having difficulty controlling his anger and negative behaviors. A January 2006 report by the Department stated that while M. was academically on track, with average grades, he had trouble with his hyperactive personality; he tended to be aggressive, hostile and used verbally abusive language towards his peers. M. felt safe in his foster home and related well with his foster mother, but he continued to struggle with extremely hyperactive behaviors and flew into rages at least once or twice a week.
In March 2006, mother gave birth to a baby boy who tested positive for methamphetamine. The baby was detained and dependency proceedings started. The court denied reunification services for both parents and set a section 366.26 hearing for the baby. Mother and father requested visits with M. In July 2006, the court ordered the Department to assess their request for visits. The Department did not believe visitation was appropriate due to the parents’ lack of contact and requested a mental health assessment for M. to determine whether visitation would be appropriate and how to reintroduce M.’s parents into his life. The court ordered the assessment.
In May 2007, father filed a request to change the court’s visitation order to reasonable supervised visits between him and M. The court granted the request and ordered monthly supervised visits for both parents. Visits began in June 2007, which M.’s therapist supervised. The therapist reported the visits went well and he recommended they continue. The therapist believed that all parties would benefit from continued visits as long as the parents could remain committed, loving and consistent.
Thereafter, the parents received monthly supervised visits. Although they visited consistently, arrived on time, and demonstrated appropriate interactions, M. was not bonding with them. According to M., he did not talk to his parents during visits and usually played with toys or played games with them. He enjoyed the snacks his parents brought him. M transitioned back to the foster home fine after visits. Although social workers encouraged M. to try to establish a line of communication with his parents, there was minimal communication.
At the end of 2008 and during the first five months of 2009, M.’s behavior gradually deteriorated, with the majority of his issues involving misbehavior and academic difficulties at school. School personnel attempted various interventions, but M.’s misbehavior escalated and resulted in referrals to the office and a school suspension for hitting another student with a rock. M., who was in the sixth grade, lacked motivation for school work; he was having difficulty completing homework assignments and was getting D’s and F’s. M.’s parents attended a team decision meeting to address concerns regarding M. both in school and at home, and as a result, they initiated discussions with M. about his misbehavior. M., however, minimized his issues and reported he was doing “okay.” M. was happy in his current foster home and looked forward to his monthly visits with his parents.
The Department attempted to move M. to a new foster home because of problems M.’s foster mother had in administering medications properly, addressing M.’s personal hygiene issues, and following up with his dental and educational needs. M., however, was very unsettled about the impending move, as he had a strong emotional connection to his foster mother, with whom he had lived for nearly five years. Over a three month period, M.’s belongings were packed up and ready to move, and he was told on three separate occasions that he should expect to move at a designated time, but the move did not occur. Ultimately, the plan to change placements was abandoned. The Department attributed some of M.’s escalating misbehavior to his feelings of anxiety and sadness related to the placement change. M. was participating in therapy with another therapist, Hector Cabrera.
In the fall of 2009, M. started middle school. His Court Appointed Special Advocate (CASA), who held his educational rights, spoke with the school principal to attempt to smooth things over for him. M., however, was removed from school and kept home after a series of incidents where he seemed to “meltdown, ” assuming a fetal position and banging his head on the floor, trying to choke himself and endangering both himself and others. M. was assessed for special education services and it was determined he qualified for services under the severely emotionally disturbed category. Although M. was getting B’s in three subjects, he was failing three others.
On September 2, 2009, M. was suspended from school for three days when he threw a chair in his classroom. M. told the foster agency social worker another student, who had bullied him on prior occasions, picked on him and pushed him to the ground. M. threw the chair after becoming frustrated.
In October 2009, M. was taken twice to the Children’s Crisis Assessment Intervention Resolution Center (CCAIR). The first time occurred on October 7. M., who had been attending track practice for the past few weeks, left his class early that day to call his foster mother to see if he could stay for practice since he had a visit scheduled with his parents that afternoon. When he could not reach her, he began banging his backpack around while students were leaving class. As M. began to take something out of his backpack, a teacher grabbed the item, which was half of a small pair of scissors and a rusted, thick chain. M. ran to the bus and reportedly began to hit himself in the chest with the other half of the scissors, which a teacher took from him. He went under the seats to get away from staff. M. was crying. When someone came to take him off the bus, M. took the sleeve of his jacket and wrapped it around his neck. After he was carried off the bus, M. grabbed the sleeve and pulled it tighter around his neck. He was taken to CCAIR by ambulance and released later that night to his care provider.
The second incident occurred a week later, when M. became upset during track team practice. He refused to talk to school staff and tried to choke himself with an item of clothing. M. banged his head against the wall; when asked to stop, he ran away. He bit and kicked an adult who was attempting to restrain him. After he calmed down and was walking toward the office, he took a string that was around his neck and pulled it tight in an apparent attempt to choke himself. M. said he wanted to die and kill himself. Police were called and M. was again brought to CCAIR. He was released later that night. After this incident, M. was suspended from school. School personnel ultimately decided to have M. home schooled until he could be assessed for participation in an intervention program on the middle school’s campus.
On October 15, 2009, a Department social worker spoke with M., who told her he wanted visits with his parents to occur every other month. The social worker sent the parents a letter, which explained M.’s desire to decrease visitation, that the new schedule would begin with the November 2009 visit, and suggested the parents bring board games, as M. said he enjoyed such games and the whole family could interact while playing. The foster agency’s social worker also noted that M. was ambivalent about maintaining contact with his parents through monthly supervised visits, and noted that M. continued to minimally interact with his parents during visits, although they consistently attended visits and no problems were reported. The foster agency’s social worker also reported that M.’s foster home was providing for his needs, that he was significantly bonded with his foster mother, and his problems at school were not related to his environment in the foster home. His foster mother reported that M. did not act out while at home. The parents told the Department’s social worker they wanted visits to remain monthly.
M. was attending therapy regularly with Cabrera, but had made minimal progress in treatment. He was having problems lying, stealing, and his disruptive school behaviors were increasing.
On November 17, 2009, the juvenile court conducted a post permanency review hearing. (§ 366.3.) The Department continued to recommend long-term foster care as the permanent plan. Mother’s counsel objected to the reduction of visitation to every other month and asserted that visitation should not be left to M. The court left the visitation order in place, but ordered the Department to obtain input from M.’s therapist and continued the hearing.
The Department filed a November 21, 2009 letter from Cabrera, M.’s therapist, in which he stated that he had been working with M. since January 2009, and was writing the letter to explain the dynamics involving M.’s visits with his parents. Cabrera reported that M. made statements to the effect that he no longer felt he was part of the family and he felt like a stranger when around his parents, and he wanted his family visits cut back from the current schedule. M. told Cabrera the visits were disruptive to his after school program, which he would rather attend than visit with his parents. Cabrera noted that there had been some instances when M. would display anger outbursts at school on the day he was scheduled to visit his parents. Cabrera stated he had questions regarding the possibility of family reunification, and if that was the plan, it would be imperative to have more consistent family visits, but he “also question[ed] if the visits would continue to disrupt M[]’s life and academic progress.” Cabrera stated he would fully support the decision of the court and social worker in this matter, but implored that M. be given an opportunity to voice his concerns and feelings regarding the issue.
At the continued hearing on December 15, 2009, father’s attorney asserted the therapist’s letter showed that M. was only concerned that visitation interrupted his after school activities, and if that was the case, third party supervision could be arranged so that visits would not impact his after school activities, noting that at the last hearing, a request was made to assess a paternal great-aunt for third party supervised visits. The Department’s attorney stated that did not look to be the only issue, as M. said he felt like a stranger with his parents. The court responded that there should be a clearer recommendation from the therapist. Father’s attorney asked the Department to assess for third party supervision, which would allow for longer visits, would not interrupt M.’s after school activities, and might make M. feel more like he belonged. The court continued the hearing and ordered the case manager to assess whether it was a schedule issue for M. or whether “as the therapist is saying that the child feels like a stranger.” The court ordered the case manager to get a clearer statement from the therapist regarding his recommendation concerning visitation and the frequency and duration of visits, and to assess whether a third party, such as the paternal great-aunt, could supervise them.
The Department subsequently filed a January 2, 2010, letter from Cabrera, in which he stated that it is imperative to ask M. for feedback regarding visits with his family. Cabrera understood the last visit went well and M. did not act out prior to or after the visit. Cabrera noted that M. had stated in one of his last sessions that he would prefer visits with his family every two months rather than every month. Cabrera, however, continued to be confused as to the possibility of family reunification. Cabrera repeated that if reunification was the plan, it was imperative to have more consistent family visits, as well as conjoint therapy. Cabrera had spoken with M.’s social worker and they both agreed that it would be appropriate at this time to grant M.’s wish and allow him to meet with family every other month rather than every month, but Cabrera would fully support the decision of the court and social worker. Cabrera continued to suggest M. be given the opportunity to voice his concerns and feelings regarding this issue.
At the continued hearing on January 26, 2010, the Department requested reduction of visits to every other month. Father’s attorney stated he was opposed to decreased visits, as it was based only on M.’s wish to reduce them, and there was no showing of detriment or that it would be in M.’s best interest. The CASA worker stated she talked to M. the night before and he indicated he was happy to leave visitation at once a month. Mother’s attorney also objected to the reduction of visits and asked that they go to third party supervised, as it appeared the only problem M. was having was that visits interfered with his after-school activities. The court found that continued foster care remained the appropriate plan. With respect to visitation, the court stated it was relying on information contained in the reports, as well as the two letters from M.’s therapist, and ordered that M. have visitation with his parents every other month, supervised by the Department. The court gave the Department discretion to increase the frequency of visits to every month conditioned on ten court day’s written notice to all counsel with updated discovery to include a letter from the therapist supporting monthly visits. The court set a review hearing for May 25, 2010, and ordered the case manager to provide at that hearing specific information as to the details of each visit, interview the care provider about M.’s behavior before and after visits, and to provide an updated letter from M.’s therapist.
DISCUSSION
In dependency proceedings, there are generally four phases: jurisdiction; disposition; reunification or family maintenance; and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) In cases that reach the permanency planning phase, the juvenile court must “conduct a hearing to select and implement an appropriate permanent plan from among those specified - including, in order of mandatory preference, adoption (after termination of parental rights), legal guardianship, and long-term foster care.” (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 884-885 (San Diego).)
If the court orders long-term foster care as the permanent plan, a status review hearing must be held every six months to determine whether the plan continues to be appropriate. (San Diego, supra, 13 Cal.4th at p. 885; § 366.3, subds. (d), (e).) The review hearing fulfills an “‘important purpose of dependency proceedings, ’ which is ‘to provide children with stable, permanent homes.’” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145.) At this stage, the focus has shifted away from efforts to maintain biological ties. (Id. at p. 1148; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Thus, “after a child has spent a substantial period in foster care and attempts at reunification have proved fruitless, the child’s interest in stability outweighs the parent’s interest in asserting the right to the custody and companionship of the child.” (In re Jasmon O. (1994) 8 Cal.4th 398, 419-420.)
Generally speaking, the juvenile court’s role is to “define the rights of the parties to visitation. The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 (Jennifer G.) [visitation in the context of dispositional orders following removal from parental custody]; but see In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1166 , fn. 8 (Randalynne G.), superseded by statute on another ground as stated in In re S.B. (2004) 32 Cal.4th 1287, 1294-1295 [noting “some controversy as to whether the court’s visitation order must specify the frequency and length of visitation”].)
During the reunification period, visitation generally must be as frequent as possible, consistent with the dependent child’s well-being. (§ 362.1, subd. (a)(1)(A).) When a case reaches the permanency planning stage and the juvenile court selects a permanent plan of long-term foster care, it must order visitation with the parent unless the court finds by a preponderance of the evidence that visitation would be detrimental to the child. (§ 366.26, subd. (c)(4)(C); Cal. Rules of Court, rule [5.725(d)(7)(E)]; Randalynne G., supra, 97 Cal.App.4th at p. 1163.)
At a post-permanency planning review hearing, the court “may modify visitation orders... as the child’s needs require.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002 [sibling visitation]; see also, e.g., In re Kelly D. (2000) 82 Cal.App.4th 433, 438 [“visitation is a proper issue to address at the hearing”].) While section 366.3 does not specify a legal standard to guide the juvenile court in undertaking its review, as a general proposition, “the Legislature has mandated that the juvenile courts consider ‘the best interests of the minors in all deliberations.’” (In re J.C. (2002) 104 Cal.App.4th 984, 992-993.) “The best interests of the child is certainly a factor the court can look to in exercising its discretion to permit or deny visitation.” (In re J.N. (2006) 138 Cal.App.4th 450, 459 [affirming the juvenile court’s discretionary denial of visitation under section 361.5, subd. (f), following bypass of reunification services].) We apply that standard here.
We review a visitation order made in a dependency proceeding for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” (Ibid.) “The abuse of discretion standard warrants that we apply a very high degree of deference to the decision of the juvenile court.” (In re J.N., supra, 138 Cal.App.4th at p. 459.)
Here, we find no abuse of discretion in reducing visits to every other month. M. has a long history of emotional problems. Although his behavior at home apparently had stabilized, he continued to act out at school to the point where he was attempting to inflict physical harm on himself, had difficulty functioning in a regular classroom, and had qualified for the severely emotionally disturbed program. Some of his acting out occurred on days when he was to visit with his parents. It was unclear, however, what was triggering his emotional and behavioral problems - whether it was something at school, at his foster home, or related to his parents. The therapist, noting that M. had no real relationship with his parents and felt like a stranger with them, questioned whether continued visits would disrupt M.’s life and academic progress. Given the uncertainty regarding the cause of M.’s behaviors and their extremity, the juvenile court reasonably could conclude that it was in M.’s best interest to reduce visitation until it could be determined whether visits in fact contributed to his emotional disturbances. To that end, the juvenile court ordered the case manager to carefully document M.’s visits with his parents and his behavior before and after visits for the review hearing to be held four months later.
Father contends the sole basis for the juvenile court’s decision to reduce visitation was M.’s desire to reduce visits, and since the CASA worker informed the court that M. wanted to leave visits at once a month, there was no basis for changing the visitation order. We disagree. While the therapist stated it was important to allow M. to voice his concerns and feelings regarding visitation, and he agreed with the social worker that it was appropriate to grant M.’s wish to reduce visits, there was evidence other than M.’s expressed desire to support a decrease of visitation, namely M.’s destructive behaviors that could harm himself or others. Even if M. had changed his mind about the frequency of visits, the juvenile court reasonably could conclude that visits should be reduced so that any possible link between M.’s behavior and visits could be fully explored. On this record, the court’s order reducing visitation is not arbitrary and capricious.
Father asserts that the reduction in visitation prevents him from establishing a relationship with M. that may lead to his ability to regain custody, citing section 366.26, subdivision (i)(2), which provides that a parent whose parental rights have been terminated may petition the court for reinstatement of those rights pursuant to section 388 if his or her child has not been adopted within three years and adoption is no longer the permanent plan. By its terms, however, that section applies when parental rights have been terminated, which is not the case here. Moreover, even if the reduction of visitation adversely affects father’s ability to pursue other avenues of reunification, it does not provide a legitimate basis for attacking it. As we have explained, the court is entitled to reduce visits if it is in the child’s best interest. Because father failed to show the court erred in reducing his visits under the circumstances of this case, his attack fails.
Section 366.26, subdivision (i)(2) provides, in pertinent part: “A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388.... ”
Father next contends that the juvenile court improperly delegated the decision on whether to increase visitation to M.’s therapist. The determination as to whether visitation will occur is exclusively within the juvenile court’s authority. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009 (Christopher H.); Jennifer G., supra, 221 Cal.App.3d at pp. 756-757.) Thus, the juvenile court cannot delegate to any third party unlimited discretion to determine whether visitation is to occur. (In re M.R. (2005) 132 Cal.App.4th 269, 274 [improper delegation to legal guardian]; In re S.H. (2003) 111 Cal.App.4th 310, 319 [order improperly granted the children the right to refuse to visit]; In re Julie M. (1999) 69 Cal.App.4th 41, 46 [same]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1477-1478 [improper delegation to children’s therapist].)
However, “[o]nly when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine.” (Christopher H., supra, 50 Cal.App.4th at p. 1009.) Thus, a visitation order validly may delegate to a therapist limited discretion to determine when court ordered visitation should begin. (In re Chantal S. (1996) 13 Cal.4th 196, 213.) Also, the juvenile court may delegate to a social agency the responsibility to manage details of the visitation such as the time, place and manner of the visits. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).)
Here, the juvenile court granted the Department discretion to increase father’s visits to once a month “upon 10 court day[s] written notice to all counsel with updated discovery to include a letter from the therapist supporting monthly visits.” By this order, father is granted visitation subject to the Department’s right to supervise and increase visits on the therapist’s recommendation. The orders do not give the Department or the therapist the right to determine whether visits should continue or the right to limit them. If father believes it is in M.’s best interest to increase visits and the therapist disagrees with that determination, father is not precluded from filing a motion in the superior court seeking such an increase. (§ 388; Christopher H., supra, 50 Cal.App.4th at p. 1010; Moriah T., supra, 23 Cal.App.4th at p. 1377.) While father asserts he cannot petition the court without the therapist’s recommendation that monthly visits resume, we disagree. Even if the therapist does not agree that visitation should increase, father certainly is free to present any other evidence he may possess that shows increased visits are in M.’s best interest. There was no improper delegation of visitation discretion to M.’s therapist.
DISPOSITION
The juvenile court’s January 26, 2010 visitation order is affirmed.
WE CONCUR: Levy, Acting P.J., Dawson, J.