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In re Tayler L.

California Court of Appeals, Second District, Fourth Division
Sep 2, 2008
No. B204246 (Cal. Ct. App. Sep. 2, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK66178. Valerie Skeba, Juvenile Court Referee.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel for Plaintiff and Respondent.


MANELLA, J.

INTRODUCTION

Mother, Kellie L., appeals from an order of the juvenile court terminating dependency jurisdiction and entering a family law order awarding primary custody to father, with monitored visits for mother. Mother challenges the sufficiency of the evidence to support the order. She also contends the juvenile court impermissibly delegated visitation authority to father, and abused its discretion by limiting her visits to monitored visits. We reject mother’s contentions, and affirm the order.

A family law order is a custody order made by the superior court in a dependency matter, and filed in the existing family court proceeding upon termination of juvenile court jurisdiction. (See Welf. & Inst. Code, § 362.4; see generally In re Chantal S. (1996) 13 Cal.4th 196, 201-202.) All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

BACKGROUND

In January 2007, minors Tayler, 12, and Jacob, 10, were detained by respondent, Department of Children and Family Services (Department or DCFS), when mother was involuntarily hospitalized for evaluation and treatment of a psychiatric condition, including an episode of psychotic hallucinations caused by her prescribed medication. Although mother and father were divorced, mother was living in father’s home at the time.

Father reported to the DCFS social worker (CSW) that mother had been seeing a psychiatrist since she was 16 years old, and had a history of suicide attempts. Tayler told the CSW that she was upset by her mother’s odd behavior, such as getting the children up in the middle of the night to go to school. She did not want mother to live in the home anymore. The younger child, Jacob, told the CSW that his mother acted “weird,” such as talking to a chair and pushing it. He admitted to the CSW that he had attempted suicide at one time because of bullying at school and conflict with his mother.

Mother’s therapist, psychologist Lawrence J. Coates, reported that mother’s recent hallucinations were caused by an interaction of prescribed morphine and her psychotropic medication. Dr. Coates was of the opinion that mother posed no danger to her children, that she had excellent parenting skills and that he had seen no evidence of physical or emotional abuse by mother.

The petition to bring the children within the jurisdiction of the juvenile court alleged that mother had been diagnosed with post-traumatic stress disorder and depression, and that her condition placed the children at risk of harm. The court ordered family maintenance services for father and family reunification services for mother. The children were released to father’s custody. Mother was granted monitored visits three times per week for a minimum of one hour per visit. Among other things, the court’s order prohibited corporal punishment of the children.

The jurisdiction and disposition hearing was scheduled for February 8, 2007, at which time the CSW submitted a report with information gathered by a DCFS dependency investigator. The CSW reported that neither parent had a criminal history. Mother had been in therapy for approximately six years, under treatment for post-traumatic stress due to a violent assault. Tayler told the CSW that her mother was so depressed that approximately five days a week Tayler was required to do the cooking and take care of her mother by bringing her medication and keeping her company. At times, Tayler felt unsafe with mother. Jacob stated that when mother was depressed, she stayed in her room or sat in the living room recliner crying. Jacob told the CSW that he thought mother was nice, except when she yelled at him and blamed him for things. He thought his father was nice except after dialysis, when he was grumpy. Jacob said he felt safe with mother and wanted her to return home. The CSW reported that both children wanted mother to come back to live with them.

According to the CSW’s report, “Tayler stated that she would like her mother to move back into the family home but that if she lived with her mother out of her father’s home she doesn’t know if she would feel safe.”

Coates reported to the CSW that he had been treating mother for six years. Mother suffered week-long episodes of depression during which she did not function well and was unable to work. Mother did not have a history of abusing her medication, and Coates was of the opinion that she was not a danger to herself or her children. The attending physician during mother’s recent hospitalization reported that a major factor contributing to the hallucinations was the high dosage of various psychotropic drugs and morphine.

Jacob’s therapist, Mark Koharchick, reported to the CSW that Jacob had not expressed concern about his mother’s depression, and had not indicated to him that he felt unsafe with her. Jacob had told him he had difficulty with his father after father’s dialysis treatments, which incapacitated him.

After mother’s release from the hospital, she rented a room in a house with Rachel, a single mother of two. Rachel reported to the CSW that she and mother got along well, and that mother acted appropriately with her children. Rachel had been approved to monitor mother’s visits with Tayler and Jacob.

The dependency investigator observed that both parents expressed great love and care for the children, who appeared to be well mannered, developmentally appropriate and bonded with both parents. Both parents were cooperative with the Department, and both homes appeared to be appropriate. The investigator concluded that although mother suffered emotional hardships, she was actively taking care of herself, and was compliant with her treatment regimen. The Department recommended that the children remain with their father, with monitored visits for mother.

The court continued the jurisdiction and disposition hearing to May 2007, and ordered mother’s visits to be monitored by her roommate four times a week. The court also ordered a psychological evaluation of mother, individual counseling for Jacob and an assessment for Tayler. The court ordered that all prior orders remain in effect, and again prohibited corporal punishment.

In March 2007, the court received a letter from the psychiatrist appointed by the court to evaluate mother, pursuant to Evidence Code section 730. Dr. Suzanne Dupee reported that mother had scheduled -- but failed to keep -- an appointment for the evaluation and had not contacted her, despite a warning that no new appointment would be scheduled under such circumstances. When mother’s counsel told the CSW that mother denied that any appointment had been arranged, the CSW contacted Dr. Dupee, who left the following message: “. . . I spoke with [mother], made an appointment, sent her a letter, sent her driving directions, had an appointment, and she never showed up. . . .”

Mother’s therapist submitted a letter to the court May 17, 2007, expressing his opinion that mother exhibited “extremely good parenting skills,” used “appropriate discipline” and was “a perfectly capable mother.” He wrote that her need for hospitalization had been caused by a reaction to her medication. She continued with weekly therapy sessions, saw her psychiatrist once a month, and attended conjoint counseling with her children.

The petition was sustained May 17, 2007, and the children were adjudged wards of the juvenile court. The court ordered DCFS to continue to provide family maintenance and reunification services. Mother was ordered to undergo individual counseling, psychiatric treatment and to take her prescribed medication as directed. Mother and father were ordered to participate in conjoint counseling separately with the minors. The court ordered individual counseling for Jacob, and an assessment for Tayler. Mother was granted unmonitored overnight weekend visits every other weekend and Wednesdays until 7:00 p.m. The court scheduled a review hearing for September 12, 2007.

In his report prepared for the September 2007 status review hearing, CSW Kevin B. reported that prior to the minors’ detention, physical custody had been granted to mother by the family court, with visitation for father every other weekend, and holiday visitation to be worked out by the parents. The CSW reported that since January 2007, there had been continuous disagreements between the parents over issues such as visitation, clothing purchases, father’s consent to an earring for Jacob, father’s removal of mother from the children’s emergency card at school, father’s having erroneously or falsely informed the school that mother was not permitted to pick the children up and an incident in which father picked the children up while mother was out, without informing her or obtaining her consent.

Mother involved sheriff’s deputies, who investigated and left the children with father when they were unable to reach the CSW.

The report stated that in March 2007, father had given mother some of father’s own prescribed Prednisone for Jacob without first consulting a physician, and mother had treated Jacob’s asthma with it. Father also admitted having lent his prescribed inhaler to Jacob on one occasion. Also, father had dropped the children off for an extended visit with mother with insufficient clothing and without Tayler’s thyroid medication.

The CSW concluded that although father had shown questionable judgment, mother’s recent behavior -- in July and August 2007 -- was of greater concern. Tayler reported that one day mother gave her permission to go into the swimming pool for her goggles, but when Tayler returned from the pool, mother was upset, could not remember having given her permission and ordered Tayler to her room as punishment. Mother then ordered Tayler to stop crying, grabbed Tayler’s arm and hair, and subdued her by forcing her to the ground where she pinned Tayler’s arms by sitting on them. Mother held Tayler’s nose to force her mouth open, and placed liquid hand soap in her mouth. Jacob reported that his mother had pinned him facedown in a similar manner two weeks before in an attempt to take out the earring father had allowed him to get while on vacation in Wisconsin. Both children told the CSW that they wanted to live with father, and visit with mother. Tayler reported that she was “tired of being put in the middle,” and Jacob reported that mother was “always yelling” at him. When the CSW told mother such behavior was abusive, mother explained that both parents had used soap in the mouth as a discipline for the use of bad language. The children reported that it had been several years since father had done so. One week later, mother denied having placed soap in Tayler’s mouth.

The CSW recommended termination of jurisdiction upon filing a family law custody order pursuant to detailed DCFS recommendations. Those recommendations included joint legal custody with primary physical custody to mother, and visitation for father every other weekend, Tuesday evenings and holidays according to a specific schedule.

On September 12, 2007, the date set for a status review hearing pursuant to sections 364, and 366.21, subdivision (e), the CSW submitted last minute information for the court, with a change in recommendation. The previous day, father reported to the CSW an incident that had occurred on September 7, 2007. Father received a call from the children, who were crying and asking him to pick them up. Mother took Tayler’s cell phone from her, and refused to allow the children to speak to father. Father called the police, who went to mother’s home. Mother refused to allow the officers to speak to the children, until the officers threatened her with pepper spray and arrest. The police left after speaking to the children.

The CSW interviewed the children at the courthouse prior to the hearing on September 12, 2007. Jacob reported that mother had become upset over his interruption of her television viewing. Tayler did not know why mother became upset. Both children reported that mother yelled at them. During the incident, mother took Tayler’s cell phone, refused to allow the children to speak to their father and pretended to throw the phone into the swimming pool. Tayler reported that she tried to leave the house to go to father’s home, because she thought mother was “acting crazy,” but mother stopped her at the doorway by pulling her hair. Tayler told the CSW that she wanted to live with her father, and when asked why, she replied, “I’m scared of my mom.”

The court continued the matter, setting a contested review hearing for October 3, 2007. Tayler and Jacob were 13 and 11 years old at that time. The CSW testified that the case had originally come to the attention of the Department in early 2007, when mother was put on a psychiatric hold. She had attempted suicide in 2006, and continued to be treated for her mental health, including taking prescribed medication. The CSW was of the opinion that father was doing well with the children, who were doing well in school, and that it was in the children’s best interest to live with father.

The CSW testified that the children had been living with father the entire time the case had been open -- six to eight months -- and that he had been provided family reunification services during that time. The CSW had recommended returning custody to mother, but changed his mind because of the recent incident in which mother grabbed and pulled Tayler’s hair as she attempted to leave the house to visit father, and because Tayler stated that she was afraid of mother. The CSW also considered the incidents in which mother pinned Tayler down to put soap in her mouth, and in which she pinned Jacob down.

The CSW acknowledged that father needed a kidney transplant, and that the original recommendation was due primarily to concern about father’s health. However, he noted that father had relatives who lived locally and had agreed to assist him, and that father’s ex-wife was likely to help with transportation, as she had done so in the past. The CSW confirmed that Jacob was in therapy due to a pre-detention incident in which Jacob tried to hang himself at father’s home. He also acknowledged that the previous spring, father gave mother his own asthma medication, rather than take Jacob to the doctor, but noted that it was mother who gave the medication to Jacob. In addition, the CSW acknowledged that Jacob had needed a tooth extraction, but that father delayed in taking him to the dentist for approximately nine months. The CSW noted, however, that the children did not have ongoing medical issues requiring regular appointments, and that father did take Jacob to the appointments he had.

The current recommendation was based not only on the incidents of hair pulling and pinning the children down, but also on the children’s statements that they preferred to be with father. The CSW continued to recommend that jurisdiction be terminated, because there was no evidence of serious physical abuse or neglect, and the case was more of a family law matter. He also continued to recommend unmonitored visits for mother.

Mother testified that in her opinion, father was not healthy enough to take care of the children. He was on dialysis three days a week, and was weak after treatment. For example, mother testified, after dialysis the day before, he was unable to walk to the school office to pick up Tayler. She noted that she had had primary custody of the children their entire lives, until the time of detention, and father had visitation every other weekend.

Mother admitted that she put soap in Tayler’s mouth. She explained that Tayler had come home from school in a bad mood and had used foul language. Mother told Tayler to go sit in her room, but when she checked on her a few minutes later, she found her sitting in the closet. When mother asked her to come out, Tayler obeyed, but with her hand raised as though she meant to hit mother. Mother testified that when she took hold of Tayler’s hand, Tayler tried to hit her with the other, so she held both hands in order to prevent her from hitting, but then, Tayler began pushing her. Mother claimed that her “only recourse” was to pin Tayler down. Upset at observing the incident, Jacob yelled at mother, who then sent him to his room. Mother told the CSW that both children were acting out of control, saying they did not have to listen to her, and that father had told them they could do whatever they wanted if they came home to him. Mother claimed that she had never had disciplinary problems prior to father’s gaining primary custody.

Mother testified that just before his vacation in Wisconsin, father turned down a kidney, rather than cancel the trip. Tayler sent a text message from Wisconsin, reporting that father had allowed Jacob to have an ear pierced. Mother claimed that Tayler said she did not want to leave father until he was better, but that she was upset because father treated Jacob badly by screaming at him. Mother admitted that she missed two conjoint therapy sessions with the children. She testified that she continued to see a psychiatrist, and was compliant with her medication.

Mother also testified that she and father were able to work together to schedule holiday visits and other matters. Although their contact was hostile at first, they were both trying and were able to agree.

Father testified he thought the children would be in danger living primarily with mother, because she hurt them and had not proven the mental competence necessary to take care of them. He cited his recent call to the police when he heard the children screaming and mother would not let him speak to them. He testified that he was on a transplant list, but no transplant was yet scheduled. Father denied that he needed help with the children at the time of the hearing, claiming he could take care of them himself.

After hearing the arguments of counsel, the court expressed concern about mother’s behavior and the children’s reaction to it. The court found that pinning the children down and placing soap in Tayler’s mouth was “completely inappropriate” and “should not have happened.” Further, mother had failed to appear for her Evidence Code section 730 evaluation with Dr. Dupee, and although another evaluator, Dr. Kennedy, was appointed, no report had been submitted to the court. The court concluded that mother’s unresolved mental health issues justified the denial of unsupervised visits.

The court ordered the children’s counsel to prepare a family law juvenile custody order granting joint legal custody, with sole physical custody to father. The court ordered that mother was to have visits monitored by any mutually agreed-upon monitor, for a minimum of six hours per week, with discretion to father to liberalize visits as he considered appropriate. The court left the visiting schedule to the agreement of mother and father. Judgment was entered October 26, 2007, terminating jurisdiction, and mother timely filed a notice of appeal.

DISCUSSION

1. Contentions

Mother contends that the juvenile court impermissibly delegated visitation authority to father by granting him discretion to liberalize visits, and that it abused its discretion by limiting her visits to monitored visits. In addition, mother contends there was no substantial evidence to support the court’s award of primary physical custody to father.

2. Discretion to Liberalize Visitation

Mother contends that the court’s order giving father discretion to liberalize visits and agree to a schedule amounted to an impermissible delegation of judicial authority to determine whether visitation should occur at all. She argues that because of mother and father’s adversarial relationship, “the reality” would be that father would “be in charge of deciding visitation.”

An order granting a third party the sole discretion to determine whether visitation occurs at all is an unauthorized delegation of judicial power. (See In re Chantal S., supra, 13 Cal.4th at p. 213; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1477.) The order given in this case does not give father sole discretion to determine whether visitation occurs at all, but requires father to allow at least six hours per week, with discretion to permit more. In In re James R. (2007) 153 Cal.App.4th 413, the court of appeal found no improper delegation where “the court and all the parties apparently understood that one visit per month was the minimum permitted; the program and the court had articulated reasons relating to appellant for setting the frequency at one time per month; and it was understood by all and specified by the court that more frequent visitation would be allowed once appellant settled into the program and finished” a court-ordered program. (Id. at p. 441.) Similarly here, the court ordered a minimum number of hours, articulated its reasons for limiting the visiting time and ordering visits to be monitored, and allowed father to liberalize. We conclude that giving father discretion to liberalize was not an impermissible delegation of judicial power.

Nor was the order tantamount to placing father in charge of deciding whether mother would be permitted any visits at all. A family law custody order may permit a third party to facilitate visiting times. (In re Chantal S., supra, 13 Cal.4th at pp. 213-214.) The decision to allow mother and father to work out a visiting schedule between them was supported by the evidence. Mother testified that her dealings with father were no longer hostile, that both were making an effort to work out conflicts over visiting schedules and other matters and that they had been able to agree. Should the relationship become hostile once again, such that mother and father are unable to agree upon a visiting schedule, mother’s remedy will be to apply to the family court for a specific, court-ordered schedule. (Id. at p. 214.)

3. Denial of Unsupervised Visits

Mother contends the court abused its discretion in permitting only monitored visits, claiming that the decision was not supported by substantial evidence. The juvenile court is vested with broad discretion in matters concerning visitation. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) Upon terminating jurisdiction, the juvenile court may impose conditions on visitation to the extent necessary to protect the children. (§ 361, subd. (a); In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)

“‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. . . .’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “The practical differences between the [substantial evidence and abuse of discretion] standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . .”’ [Citations.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

Mother also contends the court should have allowed unsupervised visits, because the CSW recommended unmonitored visits despite his concern about the inappropriate discipline. Mother cites In re Luke M. (2003) 107 Cal.App.4th 1412, as authority for her assertion that the social worker’s opinion “cannot be rejected lightly by the trial court.” However, the court in that case merely held that trial courts may consider the opinions of social workers to the extent they find them helpful. (Id. at p. 1427.) The most important consideration remains the best interests of the children. (In re Jennifer R., supra, 14 Cal.App.4th at pp. 712-713.)

Mother acknowledges that the evidence was sufficient to show that she had disciplined the children by pinning them to the floor and by placing soap in Tayler’s mouth. However, she contends that the court gave insufficient weight to her own therapist’s positive evaluation, in which he concluded that prior to detention, when she had primary custody, mother had been a good parent.

However, the court rejected the opinions of mother’s therapist because it did not appear that he had the same information that was before the court and that had been provided to the court-appointed evaluators. Indeed, it was May 17, 2007 -- nearly four months before the September hearing -- that mother’s therapist expressed his opinion that mother exhibited “extremely good parenting skills,” and used “appropriate discipline.” The incidents of pinning the children to the floor, hair pulling and placing soap in Tayler’s mouth occurred after that date. An expert’s opinion “‘is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618.)

Further, prior to the soap, pinning and hair-pulling behaviors, the court had entered orders prohibiting corporal punishment, first on January 12, 2007, then February 8, 2007 and again May 17, 2007. The court’s orders were insufficient to deter mother from abusive discipline, and as mother claimed that the children’s behavior left her no other recourse, the court could reasonably have concluded that it was unlikely she would be deterred in the future.

The court ordered monitored visits due in part to mother’s unresolved mental health issues, and her failure to appear for psychological evaluation. The children had been detained due to mother’s hospitalization after her prescribed medication caused psychotic hallucinations, and mother continued to suffer depression and severe post-traumatic stress. Mother’s therapist, Dr. Coates, reported that the hallucinations had been caused by an interaction of morphine with mother’s psychotropic medication, and that she had since discontinued the morphine. However, Coates was a psychologist, not a physician, and there was no evidence that he would have qualified as an expert in drug interaction or the likelihood of recurrence. The court had ordered two mental health evaluations, one by psychiatrist Dr. Dupee, and another by Dr. Kennedy. Mother failed to appear for an evaluation by Dr. Dupee, and the court indicated that it had received no word that mother had been evaluated by Dr. Kennedy.

“It is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence [and] to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citations.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) “‘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.’ [Citation.]” (In re Stephanie M., supra, 7 Cal.4th at p. 319.) We thus decline to reweigh the evidence or draw different inferences from it. We conclude that substantial evidence supported the court’s order, and there was no abuse of discretion.

4. Substantial Evidence to Support the Custody Order

Mother contends the evidence was insufficient to justify denying her primary physical custody of the children. Citing the CSW’s status review report of September 12, 2007, mother claims that the Department recommended terminating jurisdiction because “[t]he case was a mistake,” “should never have come into being” and “[m]other did not have a problem that necessitated the court’s supervision.” We agree that the Department recommended terminating jurisdiction, but find no such representations in the report cited by mother.

The court did not find that jurisdiction was a mistake, that it should never have come into being or that mother had no problem that required court supervision. Indeed, in sustaining the petition at the jurisdiction hearing, the court found the following allegation to be true: “[Mother] has a mental . . . history, including a diagnosis of Post Traumatic Stress Disorder and Depression. On [January 4, 2007], the mother was involuntarily hospitalized for evaluation and treatment of her psychiatric condition. Further, due to her prescribed medication the mother had psychotic hallucinations. Such mental health issues on the part of the children’s mother places the children at risk of harm.” We have already determined in our previous discussion that the court’s finding that mother continued to have unresolved mental health issues was supported by substantial evidence.

Mother summarizes evidence of father’s health problems, his having provided Jacob with his own prescription medication, the delay in taking Jacob to the dentist and his failure to make several medical appointments. She infers from such evidence that father’s ability to care for the children was “questionable.” The test, however, is not whether there is substantial conflict, ‘“but rather whether there is substantial evidence in favor of the respondent. If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.’ [Citation.]” (In re Stephen W. (1990) 221 Cal.App.3d 629, 644, fn. 12.)

The evidence showed that although father was in ill health, his relatives had agreed to assist him. Further, although father had not been diligent in making dental and medical appointments, the children did not have ongoing medical issues requiring regular appointments, and father did take them to the appointments once made. There was just one incident in which father gave Jacob his own medicine, and it was mother who administered it. Father had been caring for the children in his home for nine months at the time of the custody order, and during that time he had been receiving reunification services. Finally, when mother’s visits were unmonitored, the incidents of pinning the children to the floor, hair pulling and placing soap in Tayler’s mouth showed that she posed a risk to the children. We conclude that substantial evidence supported the court’s order.

DISPOSITION

The orders terminating jurisdiction and awarding primary custody to father are affirmed.

We concur: EPSTEIN, P. J. WILLHITE, J.


Summaries of

In re Tayler L.

California Court of Appeals, Second District, Fourth Division
Sep 2, 2008
No. B204246 (Cal. Ct. App. Sep. 2, 2008)
Case details for

In re Tayler L.

Case Details

Full title:In re TAYLER L., et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Sep 2, 2008

Citations

No. B204246 (Cal. Ct. App. Sep. 2, 2008)