Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. Nos. JD10-3042, JD10-3031.
JENKINS, J.
This is an appeal from the juvenile court’s findings and order granting petitions by the San Francisco Human Services Agency, Family and Children’s Division (agency) pursuant to Welfare and Institutions Code section 388 seeking suspension of the visitation rights of appellant Y.B. (mother) with respect to her children L.M. and R.S. (minors). Mother contends on appeal the agency failed to meet its burdens to prove (1) a change in circumstances, and (2) that suspension of visitation was in minors’ best interests. We affirm.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2010, petitions were filed pursuant to section 300 alleging that mother, whose whereabouts were unknown, had failed to protect R.S., born May 2001, and L.M., born December 2008 (§ 300, subd. (b)), left L.M. without any provision for support (§ 300, subd. (g)), and neglected or abused minors’ siblings (§ 300, subd. (j)). Among other things, the petitions alleged mother had left a residential drug treatment facility without advising the agency of her or minors’ whereabouts, and was later found living with a relative with a criminal background who was engaged in selling drugs out of his home. On March 18, 2010, the agency filed amended section 300 petitions adding allegations that mother, whose whereabouts were again unknown, had been terminated from a residential drug treatment program due to noncompliance with the program, multiple positive drug test results, and possession of alcohol at the program site. The juvenile court subsequently found the agency had established a prima facie case, detained both children, and ordered supervised visitation for mother.
The section 300 petition with respect to R.S. did not include the allegation of no provision for support (§ 300, subd. (g)).
On May 21, 2010, the agency filed a disposition report that included an attached case plan for mother. This case plan called on mother to refrain from drug use and to participate in a residential drug treatment program, parenting classes, therapy and regular drug testing. Shortly thereafter, following a hearing, the juvenile court declared minors dependents of the court, placed them in foster care, and approved mother’s case plan.
On August 18, 2010, the agency filed an ex parte request that the juvenile court terminate visitation for mother on the ground that such visitation was detrimental to minors. The agency thereafter filed petitions pursuant to section 388 to modify the prior visitation order, alleging that mother continued to use drugs, verbally assaulted and threatened staff members supervising visitation, cursed at minors, and brought weapons to visits, and caused minors to become upset before and after visits. The juvenile court temporarily suspended visitation and set the matter for hearing. Following the September 15, 2010 hearing, however, the juvenile court denied the agency’s section 388 petitions without prejudice for insufficient evidence.
Thereafter, on October 7, 2010, the agency filed another set of section 388 petitions adding allegations that mother was now incarcerated and that visiting her in jail would traumatize minors. In anticipation of the November 3, 2010 hearing on the petitions, the agency filed an interim report prepared by social worker Jennifer Malcolm. This report, among other things, documented multiple incidents of mother’s alleged inappropriate and menacing behavior during supervised visits, and ultimately concluded that such visits should be suspended until mother could “stabilize” herself. The report added that R.S., who, like his mother, had a history of engaging in aggressive and assaultive behavior, could be traumatized by visiting her in jail, which in turn could trigger his past behaviors and jeopardize his placement.
On October 29, 2010, the attorney for L.M. and R.S. filed a motion joining the agency’s request to suspend visitation. This motion attached a letter from R.S.’s therapist, who opined that R.S. had an “idealized image” of mother, and that visiting her in jail could “reinforce his perception [that] she is being victimized or aggravate his grief and depression.”
Neither mother nor her attorney attended the November 3, 2010 hearing on the agency’s section 388 petitions. Nonetheless, following the hearing, the juvenile court granted the agency’s petitions and ordered visitation suspended after finding it detrimental to minors.
On November 18, 2010, mother timely filed a notice of appeal of the juvenile court’s November 3, 2010, findings and order granting the agency’s section 388 petitions.
DISCUSSION
Mother raises two issues for our review. First, mother contends the agency failed to establish a change in circumstances warranting modification of the juvenile court’s prior order for supervised visitation. Second, mother contends the agency failed to establish that suspension of visitation was in minors’ best interests. We address each issue in turn after first setting forth the relevant legal principles.
Section 388 provides in relevant part: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made....” (§ 388, subd. (a).)
“At the hearing on [a] petition pursuant to section 388, the juvenile court’s task [is] to determine whether the Department ha[s] demonstrated by a preponderance of the evidence that there [i]s new evidence or a change of circumstances demonstrating that it [i]s in [the minor’s] best interests that the previous... order... be changed, modified or set aside. [Citations.]... The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527 [section 388 requires a showing of a change of circumstances or new evidence, and that modification based on the change or new evidence would be in the best interests of the minors].)
Here, as set forth above, the juvenile court granted the agency’s request pursuant to section 388 to modify the visitation order in this case so as to suspend visitation between mother and minors. For reasons explained below, we conclude the agency provided sufficient evidence to support the juvenile court’s decision.
I. Change in Circumstances.
Mother first contends the agency failed to meet its evidentiary burden under section 388 to establish a change in circumstances requiring modification of the prior visitation order. “When we review a sufficiency of the evidence challenge, we may look only at whether there is any evidence, contradicted or uncontradicted, which supports the trial court’s determination. We must resolve all conflicts in support of the determination, and indulge in all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.)
Having reviewed the relevant record in a light most favorable to the juvenile court’s order, we conclude the agency’s evidentiary showing was adequate to establish the requisite change in circumstances. In particular, the agency offered evidence of its September 22, 2010 interim report, prepared by social worker Malcolm (the report), which stated that she had received calls and written documentation from Bay View YMCA, the facility supervising visitation between mother and minors, indicating that mother had repeatedly failed to comply with basic program rules, been verbally abusive during visits, threatened staff members with physical violence, carried a weapon on her person during one or more visits, and cursed or otherwise acted inappropriately in front of minors.
Specifically, the report noted that, among other things, visitation reports from the YMCA indicated “[mother] has presented agitated, threatening, curses in front of her children, engages in adult conversations with [R.S.], and threatens the staff members of the Agencies.” Another such visitation report from the YMCA described mother as “ ‘continuously disruptive and disrespectful toward staff and making the visiting space uncomfortable for other visiting families with her combative and hostile attitude.’ ” Further, an email from YMCA staff member Tammi Minix added that “ ‘[w]hen [mother] is in an agitated mindset, she is threatening verbally and her body language suggest [sic] the situation is considered escalated and would be deemed unsafe.’ ”
In other examples of mother’s alleged misconduct, the report noted that the YMCA cancelled a June 11, 2010 visit because mother was “cursing very loudly” in the hallway in front of minors and carrying on an “inappropriate conversation” with R.S. And during a July 9 visit, mother “cursed in front of [L.M.] towards the staff” and/or “mumble[d] inappropriate remarks in front of her children and caretaker.”
The report further stated that, on July 13, 2010, the agency was told by Deborah Hodges of the Epiphany Center that mother was being discharged from her drug treatment program “for safety concerns due to her having a knife, threatening staff, being verbally abusive, not complying with the rules of the program and her intense denial.” Also on July 13, the agency received information that the YMCA would no longer supervise mother’s visits because she was threatening and verbally abusing staff and was extremely inappropriate to both children and staff during visits.
Based on this information, the social worker recommended in the report suspending visitation between mother and minors until her behavior stabilized. The report also noted that the social worker had attempted to arrange therapeutic visitation for mother from “FCMH, ” but had been told she was not a candidate for the program because of her history of using illegal substances, carrying weapons, threatening staff members with physical harm, not participating in therapy, and engaging in behavior upsetting to minors before and after their visits. Finally, the report noted that mother was currently incarcerated and that permitting minors to see her in jail would be traumatic for them.
On appeal, mother claims the report lacks evidentiary value because it fails to disclose the source of the information from FCMH that she allegedly carried a weapon (which she denies) and had a history of threatening service providers. Mother speculates the information’s source was “most likely” the social worker herself. Mother then argues, based on her theory, that the “submission by [agency] personnel of paperwork containing unsupported hearsay statements pertaining to Mother did not qualify as a change of circumstances.”
We first note the social worker does in fact identify sources of the information that mother carried a knife and threatened staff. According to the report, both Deborah Hodges of the Epiphany Center and Tammi Minix of the YMCA provided this information to the agency. In any event, and more importantly for our purposes, it is well-established in dependency law that hearsay evidence contained in a social worker’s report is admissible. (In re Malinda S. (1990) 51 Cal.3d 368, 372-373; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1652.) Accordingly, the juvenile court was entitled to credit this information.
Next, mother argues that, regardless of FCMH’s refusal to provide her therapeutic visits, there is no evidence in the record that other organizations, including the agency, were unavailable to host supervised visits. This argument, we conclude, misses the mark. The facts underlying the FCMH’s refusal to provide mother therapeutic visitation are simply further evidence of her inappropriate conduct towards minors during visitation, as well as her aggressive and menacing conduct towards the very individuals employed to assist her reunification efforts with minors. Even assuming other organizations were available to supervise visitation, the undisputed evidence remains that mother’s conduct during visitation was not acceptable.
In drawing this conclusion, we acknowledge evidence in the report that many of mother’s visits with minors were appropriate, happy or noneventful. However, on appeal, we do not reweigh the evidence; rather, we consider the evidence in the light most favorable to affirming the juvenile court’s decision. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [where “ ‘ “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” ’ ”].) And, on this record, the evidence of mother’s unacceptable behavior in the presence of minors during visitation is plentiful.
Finally, we note that mother correctly argues that her incarceration, without more, is not an adequate basis for suspending visitation. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402-1403.) However, despite our agreement with her argument, we believe mother ignores the wealth of evidence apart from the fact of her incarceration, set forth in detail above, that adequately supported the juvenile court’s finding of changed circumstances.
II. Minors’ Best Interests.
Mother further contends the agency failed to meet its evidentiary burden under section 388 to establish the proposed modification of suspending visitation would be in minors’ best interests. We again disagree.
“[W]here termination of visitation is sought pursuant to section 388, the issue of termination of visitation, including a finding that continued visitation would be detrimental to the child, should be adjudicated according to a preponderance of the evidence standard.” (In re Manolito L. (2001) 90 Cal.App.4th 753, 760.) “Detriment includes harm to the child’s emotional well-being.” (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357.) “[A] court has the power to suspend visits when continuing them would be harmful to a child’s emotional well-being.” (Ibid.)
Here, the juvenile court accepted the opinion of the agency’s social worker that suspension of visitation would be in minors’ best interests because they “could have a better interaction with [mother] in a more peaceful and stable environment [if] she was able to be in a treatment center.” The social worker added that mother needed to “stabilize” before continuing visits with minors because her behavior was traumatic for them, both before and after the visits. In fact, there was evidence that R.S. was “replicat[ing]” mother’s behavior in his placement and at school (where he already had a history of being aggressive and assaultive towards school officials and others). Based on these circumstances, the social worker opined that “[R.S] should not be able to visit his mother in jail due to it being too traumatic for him to handle at such a young age and it may trigger his past behaviors and jeopardize the placement.”
Consistent with the social worker’s opinion that R.S. should not visit mother in jail, R.S.’s therapist wrote a letter on October 18, 2010, opining that it was “probably not a good time for [R.S.] to visit his mother in jail” because he had an “idealized image” of her and visiting her in jail “may either further reinforce his perception she is being victimized or aggravate his grief and depression.”
Mother claims these opinions by the social worker and R.S.’s therapist do not constitute substantial evidence of minors’ best interests because they are speculative. Contrary to this claim, however, we find these professional opinions firmly based on the objective evidence described above of mother’s repeated noncompliance with program rules, aggressive and menacing behavior towards program staff, and unhealthy and inappropriate behavior both in front of and towards minors. This evidence, considered collectively and in a light most favorable to upholding the challenged order, adequately supported the juvenile court’s finding that continued visitation while mother remained unstable and incarcerated would be detrimental to both minors’ emotional well-being.
As we have already explained, this court has no power to decide the effect or value of evidence, reweigh, or second-guess the juvenile court’s findings regarding the credibility of witnesses. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Not only was the juvenile court entitled to find the social worker and therapist credible and to give great weight to their assessments of minors’ best interests, the opinions of the social worker and therapist were sufficient without more to provide substantial evidence supporting the juvenile court’s finding that continued visitation with mother would be detrimental to minors. (In re Casey D., supra, 70 Cal.App.4th at p. 53; see also In re Nada R. (2001) 89 Cal.App.4th 1166, 1178; cf. Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748 [noting the “harder cases” are, like the one before it, “where the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent”].)
Thus, based on a fair reading of the evidence, we conclude the juvenile court’s decision to grant the agency’s section 388 petitions and suspend visitation between mother and minors was neither arbitrary nor capricious. In the absence of an abuse of discretion, we therefore affirm the juvenile court’s findings and order.
As the California Supreme Court explains, “[t]he parent has a fundamental right to maintain the parent-child bond and to the care, custody and companionship of his or her child. [Citations.] However, the right is not absolute and may be abridged when it is necessary to do so to protect the welfare of the child. [Citation.]” (In re Jasmon O., supra, 8 Cal.4th at p. 419.)
DISPOSITION
The juvenile court’s November 3, 2010, findings and order granting the agency’s section 388 petitions are affirmed.
We concur: McGuiness, P. J., Pollak, J.