Opinion
A119215
7-30-2008
In re NOAH S., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. S.B., Defendant and Appellant.
Not to be Published
S.B. (mother) is the parent of three children, including Noah S. On June 20, 2005, Solano County Department of Health and Social Services (department) filed an amended petition pursuant to Welfare and Institutions Code section 300, subdivision (b). The juvenile court detained Noah, found it had jurisdiction, and provided mother and Noahs father reunification services. After providing 18 months of reunification services, the court found mother had not complied with her plan, while Noahs father had both complied with his plan and provided Noah with a stable environment. The court terminated jurisdiction and granted custody to Noahs father. It ordered that mother may visit Noah as arranged by the parents, but provided for Noahs father to monitor mothers telephonic and other communications with Noah. Mother appeals, and argues that the court abused its discretion when it awarded custody to Noahs father, stated the parents were to arrange visitation, and permitted Noahs father to monitor her communications with Noah. We are unpersuaded by her argument and affirm the judgment.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
The Petitions, Detention Hearing, and Jurisdiction Hearing
On May 20, 2005, the department received a referral regarding Noahs older sister, 14-year-old A.S. A.S., who has spina bifida, was hospitalized with a bad foot infection. She had cellulitis on her foot, impacted bowels, a urinary tract infection, and thoughts of suicide. A.S. reported that mother hit her and her four-year-old brother Noah. Mother had refused to take A.S. for care at the childrens hospital since 2001.
The social worker was able to contact mother on May 26, 2005; mother had not been to see A.S. at the hospital. On May 31, 2005, the department filed a petition pursuant to section 300, and detained A.S. because she did not want to return home and had received inadequate care at mothers home. The department recommended leaving the siblings, four-year-old Noah and two-year-old Chloe, at home with intensive services.
At the detention hearing on June 1, 2005, the juvenile court found that all three children came under section 300. The court determined that it was necessary to place A.S. outside the home, but left Noah and Chloe with mother in the home and with services.
On June 20, 2005, the department filed an amended petition and an addendum report in support of the petition. The amended petition alleged that the children suffered or were at substantial risk of suffering serious physical harm because mother engaged in domestic violence with her boyfriend in the presence of the children. It further stated that mother used physical violence against A.S. and Noah, who was now five years old. The petition charged that she hit them both with a leather belt leaving red marks and bruises. Additionally, it claimed that in the evening of June 16, 2005, mother was unaware of the whereabouts of two-year-old Chloe and the police found Chloe at a local store where she had wandered on her own. It also alleged that Noahs father was incarcerated, that the whereabouts of A.S.s father was unknown, and that Chloes father was unable to care for her. The department recommended that all three children remain placed outside of mothers home with reunification services offered to the parents.
After a contested hearing on July 25, 2005, the juvenile court sustained the allegations in all three of the petitions, and took jurisdiction over A.S., Noah, and Chloe.
The Disposition Hearing
The department filed its disposition hearing report on December 5, 2005. With regard to Noahs father, the report stated that he was currently incarcerated for a parole violation and had a statutory rape conviction. He was due to be released on November 17, 2005. He has five children, including Noah. Although the children lived with their various mothers, Noahs father had a relationship with all of his children.
The department noted that homelessness and a lack of resources had lead to many of the problems mother was experiencing. It opined that mother had become overwhelmed and relied too much on A.S. The department believed that mothers pattern of unrealistic expectations had shifted from concentrating on A.S. to focusing on the department. According to the department, mother expected immediate results when requesting help. Moreover, she blamed the situation on Chloe for going to the store by herself. Mother had been receptive to participating in therapy for herself and with A.S. The department recommended reunification services for mother and for Noahs father. The services for Noahs father were to begin as soon as he was released from prison.
The department filed an informational hearing report on December 5, 2005. The social worker stated that mother had made threats against the social workers involved in the matter and had threatened to file lawsuits against the department. Many of the accusations against the social workers and the department occurred while mothers children were present. The report stated that mother complained that the department removed her children and destroyed her family for no reason.
The report mentioned that A.S. returned to mothers home, but only eight days after returning home, mother received a 60-day notice to vacate and terminate the lease of her apartment. The landlord asserted that mother had other people living in the home, had cars coming and going at all hours of the night, and was mistreating the property. Mother was now neglecting to fill out paperwork to receive aid, including assistance for housing. Further, the high school called to report that A.S. had not been attending school and, when she did, it was without proper care. Various people reported being overcome by the smell of urine on A.S.
On the positive side, the report pointed out that mother had complied with the department by attending therapy on a regular basis. She also had a good knowledge of spina bifida. The social worker wrote that mother loved her children "very much, but for some unknown reason, she is unable to utilize her resources in order to maintain and function in a healthy manner." The department opined that the situation required adding more services rather than removing A.S. from the home. The department requested that the court order psychological and substance abuse evaluations to detect where additional services were needed and reported that it was planning to place a Families First worker in the home to perform crisis intervention.
The lower court held a contested disposition hearing on November 14, 2005, and issued its tentative findings and order on December 5, 2005. The court found that the conflict between mother and A.S. negatively and significantly impacted A.S.s physical and emotional needs. It ordered A.S. detained out of mothers home, Noah returned to mother, and Chloe to remain with her father.
After further hearings, the juvenile court appointed a Court Appointed Special Advocate (CASA) for Noah. On February 7, 2006, the court placed Noah with his father.
The Status Review Hearing in March and April 2006
The department filed a status review hearing report on March 17, 2006, for the hearing on March 21, 2006. The report noted that Noah missed an excessive amount of time from school with unexcused absences and illnesses while living with his mother. Since residing with his father, Noahs attendance had been good until recently; he had been absent March 7, 8, 9, 10, and 13, 2006. The department reported that it needed additional time to assess further Noahs placement with his father in light of information it had received regarding his fathers criminal history. It recommended continued out-of-home placement for A.S. and the termination of jurisdiction for Chloe, who was living with her father since August 2005.
At the hearing on March 21, 2006, the court terminated jurisdiction as to Chloe. It continued the status review as to A.S. and Noah and held the continued hearing on April 11, 2006.
On April 13, 2006, the juvenile court filed its findings and orders. It found that placement of Noah and A.S. with mother continued to be contrary to their welfare and ordered that they be continued as dependent children. It placed Noah in the custody of his father with services for six months.
The Status Review Hearing of August 15, 2006
The department filed its status review hearing report on August 9, 2006. The department had been unable to determine the current living conditions of mother, but it was aware that she had given birth to twin boys in May 2006. Mother had refused to accept services for the infants without the departments first obtaining a court order. The department filed a section 300 petition with the court on July 6, 2006, to detain mothers twins.
The report stated that Noah was residing in Richmond with his father, cousins, and aunt. His father was unemployed. Noahs father was compliant with his parole conditions and tested negatively for drugs during random testing; his parole officer noted that he had no complaints regarding him. Noah was having weekly unsupervised visits with mother, but the department recommended changing the visits to supervised visits. The report further highlighted that an issue had arisen regarding the transporting of Noah from his fathers house to mothers home for visits on the weekend. The department intervened and resolved the issue by transporting Noah from his fathers home to mothers home.
The department recommended family maintenance services to father. Mother had refused to sign the case plan and was not in compliance. The department recommended terminating family reunification services as to mother.
The department filed its information report on August 29, 2006. The report noted that mother had not been consistent in her visitation and had crying spells while visiting her children. The department opined that supervised contact with Noah was not in his best interest as mother continued to display erratic behavior and anger; she refused to participate in her case plan. The department requested that "the court intervene on behalf of all the children and [order] no contact with the minors unless in a therapeutic (specifically, clinical family therapy) setting."
On October 3, 2006, the juvenile court held a contested status review hearing regarding Noah and A.S., which also included the new section 300 petition on the twins. Mother testified that she had no problems with the fathers of her children until child protection services intervened. A social worker supervising visits between mother and Noah testified that mother commented in front of Noah about killing herself. She also heard mother tell Noah that his father did not really want him, and that his father was not doing what he was supposed to be doing.
At the end of the hearing, the court extended reunification services for mother as to both Noah and A.S., and ruled that Noah was to remain with his father with family maintenance. The court found that the department did not meet its burden of proof for jurisdiction over the twins.
Mother submitted a section 388 petition to change the courts orders in February 2007, seeking to have Noah and A.S. placed with her. The department and counsel for Noah and Noahs father opposed the request. The court denied mothers request.
The Status Review Hearing of June 26, 2007
The department filed its status review report on June 12, 2007. The department stated that mother had continued her pattern of failing to comply with components of her case plan and that she had been offered services for over 18 months. It recommended the termination of mothers reunification services. It further suggested that Noah remain in the care of his father with legal and physical custody granted to him with visitation orders as to mother. It proposed that the court terminate its jurisdiction over Noah.
With regard to father, the report stated that he was living with his fiancée, her son, and their infant son. The family had moved into a rental home, and the children had their own bedroom. Noahs father was employed and would be on parole until 2009. Contrary to court orders, Noahs father had spanked Noah during the reporting period. Despite this infraction, the department believed that Noahs father had provided Noah with a stable and loving environment. The department noted that Noah was progressing in school, and recommended that it was time to let the family function on its own without further intervention.
The report stated that mother was having two hours of unsupervised visits with Noah at her motel room, and urged the continuation of this level of contact. The department observed that Noah enjoyed spending time with his mother and that mother was affectionate and interacted appropriately with Noah. According to the report, mother had made some inappropriate comments to Noah about the department, about Noahs father, and about not visiting him because she was going to move out of state. This information, according to the report, was devastating to Noah and he cried and was sad for the next few days after her visit. Still, the report indicated that the visits were important as Noah loved his mother "a great deal" and voiced a strong desire to see her.
Noahs CASA filed a report on July 24, 2007. Although CASA had been unable to visit with Noah on a regular basis since his placement with his father, the advocate maintained that Noahs father was meeting both his physical and emotional needs. CASA asserted that Noah was happy in this placement and that his father was meeting all the requirements placed upon him. Further, Noahs father had enrolled in parenting classes on his own. CASA recommended that Noahs dependency be terminated and that his father be granted full custody with supervised visitation with mother.
At the hearing in August 2007, the juvenile court placed A.S. back with mother and ordered jurisdiction over her terminated. Mother testified regarding her desire to have Noah returned to her custody. She stated that she opposed the departments recommendation that Noah be placed with his father because she did not want the siblings separated. She also complained that Noahs father had changed his cell phone number and she could not contact him. She reported that Noahs father told her that he would not give her a phone number for Noah and that she would not be able to visit Noah. She asserted that the children made fun of Noah because of his lighter skin color. She also stated that Noah told her that his father had given him bruises. She expressed concern about the safety of the neighborhood where Noahs father lived and about Noahs father being a registered sex offender.
The juvenile court ordered termination of jurisdiction over Noah. The court gave Noahs father legal and physical custody of Noah. The order specified that mother "may visit" Noah "[a]s arranged by the parents." Additionally, the court concluded that Noahs father should "monitor telephonic, electronic, and written communication between [mother] and Noah." It ruled that he had the authority to "terminate communication for inappropriate content [and to] withhold written communication for inappropriate content."
Mother filed a timely notice of appeal.
DISCUSSION
Mother challenges the juveniles court order terminating jurisdiction and giving father custody of Noah. The order specified that mother "may visit" Noah "[a]s arranged by the parents." Additionally, the court ruled that Noahs father should "monitor telephonic, electronic, and written communication between [mother] and Noah." It provided that Noahs father had the authority to "terminate communication for inappropriate content [and to] withhold written communication for inappropriate content."
"The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) We will only reverse for an abuse of discretion if the lower court " `exceeded the bounds of reason. " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) " `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. " (Id. at p. 319.)
The record in the present case establishes that the lower court did not abuse its discretion in awarding custody to Noahs father. The record reveals that mother did not comply with her case plan and continued to blame the department and others for her situation. Additionally, she had acted inappropriately with Noah when she cried and told him that she was not going to visit him because she was leaving the state. Further, Noah missed school while living with mother. In contrast, Noah was thriving while under his fathers care, and his father had provided him with a stable environment. Noahs father took care to ensure that Noah participated with service providers such as his therapist and that Noah attended school. Noahs father had complied with his case plan and had met all of the requirements specified by the department. Accordingly, the lower court did not abuse its discretion when it awarded custody to Noahs father.
With regard to visitation, although mother contends that Noahs father would prevent her from visiting Noah, the record does not support this. Mother did testify that father would not give her his phone number; she also claimed that he said he would prevent her from seeing Noah. The record, however, only establishes that there were some transportation issues, but Noahs father was cooperative in making Noah available for visits with mother. There was no evidence that Noahs father had done anything or would do anything to prevent mother from visiting Noah.
Mother also complains about the courts order that limits her contact with Noah and asserts that she is entitled to visitation with her children. (See Clarke v. Clarke (1950) 35 Cal.2d 259, 262 [custody dispute between divorced parents].) She maintains that she must be provided reasonable visitation unless it is established that visitation would be detrimental to the best interests of the child. (Fam. Code, § 3048.) She claims that the burden of proving detriment is upon the parent contesting visitation rights. (Griffith v. Gibson (1977) 73 Cal.App.3d 465, 475 [biological father entitled to visitation rights when mother offered no evidence showing that such visitation would be detrimental to the best interests of the child].)
The foregoing argument by mother, however, has no application to dependency cases. Mothers argument cites family law cases and the Family Code. This, however, is not a family law case, but a dependency case. The juvenile court issues custody and visitation orders upon termination of jurisdiction under section 362.4 of the Welfare and Institutions Code, not the Family Code. In dependency cases, unlike family law cases, there is no presumption of parental fitness and the courts focus is on insuring that the child is protected. (See, e.g., In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)
"Although both the family court and the juvenile court focus on the best interests of the child significant differences exist. In juvenile dependency proceedings the child is involved in the court proceedings because he or she has been abused or neglected. Custody orders are not made until the child has been declared a dependent of the court and in many cases, such as this one, the child has been removed from the parents upon clear and convincing evidence of danger. The issue of the parents ability to protect and care for the child is the central issue. The presumption of parental fitness that underlies custody law in the family court just does not apply to dependency cases. Rather the juvenile court, which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions." (In re Jennifer R., supra, 14 Cal.App.4th at p. 712.)
Mother also objects to the courts order to the extent that it provided that Noahs father should monitor her telephonic conversations and other communications with Noah. We conclude, however, that the lower court did not abuse its discretion by making this order. As already stressed, mother had acted inappropriately with Noah and had caused him to cry and be sad after her visits, especially when she stated that she would not be able to see him again because she was moving out of the state. Further, she undermined his well-being by making disparaging comments about his father and the department. The social worker expressed concern regarding her inappropriate statements to Noah. Moreover, Noahs CASA requested that mother have "[s]upervised visitation." Rather than ordering supervised visitation, the court concluded that Noah could be adequately protected by having his father monitor the communication between mother and Noah.
Accordingly, we conclude that the juvenile court did not abuse its discretion in giving custody to Noahs father and in providing visitation to mother as arranged by the parents with the communication between mother and Noah to be monitored by Noahs father.
DISPOSITION
The judgment is affirmed.
We concur:
Haerle, Acting P.J.
Richman, J.