Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDING. Petitions for extraordinary writ. (Cal. Rules of Court, rule 8.452.) Marilyn K. Martinez, Commissioner. Los Angeles County Super. Ct. No. CK21323.
Law Offices of Timothy Martella, Eliot Lee Grossman and Vicky Ourfalian for Petitioner I.S.
Law Offices of Alex Iglesias, Steven D. Shenfeld and Thelma Gonzalez for Petitioner T.C.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.
Children’s Law Center of Los Angeles and Patsy Moore for five of the children.
FLIER, J.
Petitioners T.C (mother) and I.S. (father) are the parents of six children, ranging from 1 to 12 years in age. Shortly before the youngest child was born, the Los Angeles County Department of Children and Family Services (Department) detained the parents’ then five children after learning that mother beat her children with a belt as a routine form of discipline, and that mother hit father and threw things at him in the children’s presence. (The sixth child was detained after his birth.) Over the next 12 months, the parents received family reunification services and were permitted to visit with their children. Mother’s relationship with the children, however, never developed to a point that permitted her to have unmonitored visits. Father was initially permitted unmonitored visits, although a monitor requirement was imposed when the juvenile court learned that father allowed mother to visit and have lunch with two of the children in violation of a court order. At the 12-month review hearing, the three oldest children testified that they did not wish to have visits with either mother or father.
At the conclusion of the contested review hearing, the juvenile court terminated reunification services and scheduled a Welfare and Institutions Code section 366.26 hearing for the selection and implementation of a permanent plan for the children. The court also terminated the parents’ visits with the five oldest children after finding that further visits would be detrimental to those children. The court permitted the parents to continue having monitored visits with the youngest child, but it reduced the frequency of the visits from weekly to monthly.
All undesignated statutory references are to the Welfare and Institutions Code.
The reporter’s transcript reads “willfully short,” but I believe that is a mis-transcription; in context, “woefully” makes more sense.
The parents filed separate writ petitions challenging the juvenile court’s decision. (Cal. Rules of Court, rule 8.452.) Father does not challenge the juvenile court’s order to the extent it scheduled a section 366.26 hearing. He complains only about the order denying him visitation with the five oldest children and limiting his visits with the youngest child to monthly visits. Mother raises what is essentially the same argument with respect to her visitation with the children. In addition, mother claims there is no substantial evidence to support the juvenile court’s finding that she received reasonable reunification services because, according to mother, the court refused to implement one of its orders for conjoint therapy with the two oldest children.
Both the Department and counsel for five of the children oppose the granting of relief.
Counsel for the sixth child did not file a formal response to the parents’ writ petitions. However, at the conclusion of the 12-month review hearing, counsel for this child joined in the Department’s request that the juvenile court terminate reunification services and visitation.
We conclude that substantial evidence supports the juvenile court’s findings that (1) mother received reasonable reunification services, (2) visits by mother with the five oldest children pending the section 366.26 hearing would be detrimental to them, and (3) visits by father with the three oldest children pending the section 366.26 hearing would be detrimental to them. However, we also conclude that (1) substantial evidence does not support the juvenile court’s finding that permitting father to visit with the fourth and fifth oldest children would be detrimental to them, and (2) the juvenile court abused its discretion when it reduced the frequency of the parents’ visits with the youngest child from weekly to monthly. Accordingly, we grant the petitions in part and direct the juvenile court to continue the section 366.26 hearing so the parents will have an opportunity to benefit from the additional visitation they will be afforded by virtue of this decision.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2007, the Department received an emergency response referral, alleging that then 11-year-old A.C. (the oldest child) was the victim of physical and emotional abuse by mother, and that the other children were at risk. When police and a Department social worker arrived, A.C. told them that the day before, mother handcuffed him and then hit him with a belt because he would not do his homework. According to A.C., mother hit him 18 times--one for each math problem he did not do and one for a sentence he did not complete. Mother told A.C. that if he made any sounds, she would “whoop” him five more times. A.C. “held his tears.” Mother hit A.C. on the back, declaring: “It is a fool with stripes on his back.” A.C. had large bruises on the right side of his torso that appeared to be from multiple belt lashings. A.C. also had six or seven linear welts on his back, which wrapped around to his right side. There was noticeable swelling.
The social worker also spoke with the second-oldest child, nine-year-old C.S., who heard, but did not witness, A.C.’s beating because mother told her and the other children to go to a separate room. C.S. reported hearing mother say “18” and seeing A.C. emerge with “a lot of ‘red marks.’ ”
C.S. reported that mother would usually hit the children with a weightlifting belt, which mother nicknamed “Vallejo.” C.S. disclosed that mother hit her with “Vallejo” two times the previous month because she forgot to clean her room. She said mother hit eight-year-old J.S. three or four times “with a regular belt” because someone hid “Vallejo,” and also used a belt to restrain the children in a chair, “like a seat belt.” On one occasion, mother hit six-year-old S.S. on the buttocks with a plastic hanger “so many times that it broke the hanger.”
J.S., the third-oldest child, reported hearing mother’s recent beating of A.C. J.S. heard “slapping noises” and later saw A.C. with red on his face, looking scared. J.S. disclosed that mother would hit her with “Vallejo.” She also described an incident in which mother pushed six-year-old S.S.’s head into the wooden post of a bed. J.S. claimed mother also did this to A.C. J.S. reported that mother hit father when he was home. She saw mother hit father with an “almost glass bottle.” On another occasion, mother hit father with some keys, causing a scar.
S.S., the fourth-oldest child, also reported being “whooped” with “Vallejo.” She confirmed that mother once hit her with a hanger until it broke. Red marks sometimes showed up on her buttocks or legs after a beating. S.S. witnessed mother hitting father. S.S. said she was afraid of mother “only when she gets mad.”
During this initial investigation, the Department social worker did not interview the fifth child, four-year-old S.A.S.
We include the fifth child’s middle initial to distinguish her from one of her older sisters. In addition, because the youngest child (who was not yet born when the five older children were detained) shares the same initials as some of his siblings, we refer to him simply as the youngest child.
The school principal told the social worker that she wished to be left out of the investigation. The principal stated that mother is very explosive and that one of the teachers is very fearful of mother.
The social worker spoke to mother, who admitted using a belt to discipline the children. She admitted handcuffing and hitting A.C. many times, though she did not count and did not look at his back to see if there were any marks. Mother said she took A.C. to her brother’s room, because she knew the windows would be closed in that room, and she did not want the neighbors to think she was abusing A.C.
Mother reported that she was sexually abused as a child and spent time in foster homes and in juvenile hall. She said she used drugs during most of her teens and 20’s, and was in and out of jail until she gave birth to A.C. Mother was incarcerated when she gave birth to A.C. and was in drug rehabilitation when she gave birth to her second child, C.S. Subsequently, mother went back to jail. She regained custody of A.C. when he was two and one-half years old and of C.S. when she was one year old.
Mother told the social worker that she was nine months pregnant and could give birth at any moment. Because of her advanced pregnancy, police did not take her into custody.
The Department detained the five children and placed them in the foster home of a couple with whom A.C. had resided for the first two and one-half years of his life. In addition, mother reported that she placed the children with the same foster parents between 2005 and 2006, when she needed assistance while working and going to school. The children referred to the couple as their grandparents.
When the children were detained, father was out of state. He reported that he was separated from mother.
The Department filed a dependency petition on behalf of the children based on mother’s physical abuse of the children and the acts of domestic violence between mother and father.
At the conclusion of the detention hearing, the juvenile court found a prima facie case for detention. The court ordered the Department to provide reunification services, and it approved visitation for the parents with the children. Mother was permitted only monitored visits, and her visits with the two oldest children were to take place only in a therapeutic setting. Father--who was present at the detention hearing--was permitted unmonitored daytime visits.
The youngest child was born three days after his five siblings were detained. The Department detained him, placed him in the same foster home as his siblings, and filed a dependency petition on his behalf. The juvenile court found a prima facie case for the detention and approved visits by the parents--monitored for mother and unmonitored day visits for father. A few weeks later, a single amended petition was filed by the Department on behalf of all six children
The Department’s February 2007 adjudication report indicated that mother had been arrested and incarcerated many times, mainly for drugs, assault, and robbery offenses. Father had no criminal record.
The report related numerous instances of corporal punishment of the five oldest children by mother.
There was additional information about acts of domestic violence. The children indicated instances when mother “spanked” father, stuffed food in his face, hit him with a glass bottle, slapped him in the face, hit him in the back of the head with a can, threw a water bottle and an iron at father, and once hit him over the head with a radio. According to A.C., father does not hit mother.
The report stated that A.C. did not want to talk, see, or have anything to do with mother and complained that “[t]he last court, that same room, with same judge . . . gave me back to my mom.” During mother’s last family visit, she told A.C. in front of the other children: “You should have never said anything otherwise we would not be in this mess.” A.C. wanted to live with his foster parents. A.C. said father--who travels a lot for work--was a good dad, but he characterized him as mother’s “slave.”
The report included information father had provided during an interview with the social worker. When asked whether he knew anything about physical discipline on A.C., father responded in the negative; but then stated that he knew mother “tried to discipline him” and admitted knowing that mother had spanked A.C. once, and that A.C. told him mother had spanked him a couple times and that “she uses the belt.” Father did not remember mother spanking the girls.
The oldest and youngest children are boys. The four other children are girls.
As for domestic violence, father stated that he and mother “argue and stuff” but “[w]e never got physical.” He then admitted that mother had slapped him, but did not remember how many times. Mother once tried to punch him, and she has “thrown stuff” at him.
When the social worker asked father if he believed mother had an anger problem, he responded: “I would not call it anger. I would say temper. She does have a temper. There are things that bother her, she gets angry. She deals with it differently. She loses her temper.”
In late February 2007, father and mother pled no contest to virtually all the allegations of domestic violence and physical abuse of the five oldest children. Father and mother also agreed to a case plan which required (1) mother to attend domestic violence counseling and parent education, and to attend individual counseling to address anger management, child protection, and the impact of domestic violence on children; and (2) father to participate in parenting and domestic violence programs, and individual counseling to address case issues and the impact of domestic violence on children. The court also ordered individual counseling for all but the youngest child. Mother’s visits with the two oldest children were to be monitored and take place in a therapeutic setting, while her visits with the other children were to be monitored in a Department office. Father was to have unmonitored day visits.
In early April 2007, the Department reported that eight-year-old J.S. had recently been hospitalized due to suicidal ideation and thoughts of harming her older brother A.C. She was diagnosed with mood disorder and poor impulse control, and prescribed medication. After an approximately two-week hospitalization, and after hospital staff felt J.S. could not safely return to her previous placement, the Department placed J.S. in a new foster home.
Shortly thereafter, the juvenile court appointed separate counsel for her. Her former counsel continued to represent her five siblings.
A.C. was having problems at school. He was physically and verbally aggressive towards other children, was not completing his homework assignments, and was pretending to be sick so he could go home. A.C. was suspended from school because of his aggressive behavior.
Mother’s visits with the four youngest children at a Department office were reported to be with “no . . . issues.” Mother had one visit with A.C. in a therapeutic setting, but he did not want any contact with her and his therapist recommended against including mother in the therapeutic sessions at this time. Mother had three therapy sessions with C.S.
In May 2007, father petitioned the juvenile court to place the children with him. (§ 388.) Father claimed he had “taken the steps to be transferred” by his employer to Los Angeles so he could care for the children. Father said he had “taken steps to live separate and apart from mother.”
The Department opposed father’s request, noting, among other things, that (1) father had not enrolled in a domestic violence program, had not yet begun individual counseling, and had attended only two sessions of a 12-week parenting program; (2) father continued to deny or minimize mother’s physical abuse of the children and the domestic violence; and (3) father conceded that mother still resided in the family home, though he claimed mother had made arrangements to live with friends if the children were returned to his custody.
When Department social workers recently asked father about the domestic violence allegation, father responded: “I’m sorry, but I don’t know where you get this information, [mother] is not that type of person.”
When asked about the possibility of returning to father’s care, A.C. was adamant that he did not want to see his parents, because he feared that father would not be able to protect him from mother; C.S. and S.S. stated they did not want to go home until their parents completed their classes; J.S. thought it would be “cool” to live with father and thought father could protect her from mother; four-year-old S.A.S. stated that she did not know what to say.
Before the hearing on father’s section 388 petition, the Department reported some problems with mother’s visitation and telephone calls with the children. Some of the problems concerned scheduling. In addition, mother did not want the visits to take place in the Department’s offices. Concerns were also raised that mother interacts with the children at church (beyond mere greetings), and displays intimidating behavior at the juvenile court while the parties are waiting for the case to be called. At the same time, mother’s two most recent visits with the four youngest children raised no major concerns. In addition, C.S.’s therapist stated she had no concerns about C.S. visiting with mother and the siblings in the Department offices. Therefore, the Department was recommending that mother be permitted to visit C.S. outside the therapeutic setting.
In July 2007, the juvenile court denied father’s section 388 petition. The court also ordered mother not to speak to the children at church. The court lifted the requirement that mother’s visits with C.S. take place in a therapeutic setting. Mother’s visits with C.S., as well as those with the four youngest children, were to be monitored and were to take place at the Department’s offices. Visits with A.C. were to continue to take place in a therapeutic setting.
In anticipation of the six-month review hearing, the Department reported in August 2007 that the children were doing well in foster care. The children, however, were reluctant to attend church because mother made contact with them there. Father was having weekly unmonitored visits with the children, and there were no problems to report. Mother was having weekly monitored visits at the Department’s offices with all children except A.C. The Department requested that the visits with the children continue to take place at the Department’s offices and that the parents continue to receive reunification services.
On the date of the six-month review hearing, the Department provided some last minute information for the court. The five oldest children were all in counseling. J.S. was still on medication, but she was visiting her siblings approximately two or three times per week, which included weekly overnight visits.
At the conclusion of the six-month review hearing in August 2007, the juvenile court found, among other things, that the Department had provided the parents with reasonable reunification services, and it ordered the Department to continue providing such services.
In late January 2008, the Department submitted its report for the 12-month review hearing. According to the report, the children were receiving proper care in their foster placements. Mother had completed 43 out of 52 parent education sessions, and had attended 37 individual counseling sessions, though she was “fluctuating” in her progress. The counselor stated that mother had made improvement but gives up easily, reverts to old behavior with her aggressive attitude, and is triggered easily. Mother was also participating in a domestic violence program, and her counselor reported she was “doing excellent in the program.” However, mother told the counselor that the reason for the referral was that “something disciplinary in the home turned out to be domestic violence in the home.”
Father conceded he was “behind” in his court-ordered programs and counseling. He stopped attending domestic violence counseling and was discharged from the program due to nonattendance. He had recently resumed individual counseling.
The five oldest children were receiving individual counseling. At a meeting among their therapists, Department representatives, and other professionals, the therapists opined that it would be detrimental to force the children to participate in conjoint counseling as the children had communicated that they did not feel safe with mother in such a setting. J.S. was functioning much better, was less angry, aggressive and defiant, and no longer on medication.
Mother was visiting with the children at the Department offices. The children were observed greeting her with hugs and kisses, though this behavior was reported as being “more prominent in the younger children.”
The children were having unmonitored visits with father, which the children reportedly enjoyed.
Father stated that due to financial constraints, he and mother were still living together.
The five oldest children reported that they were not interested in returning to their parents’ home as they felt mother would revert to utilizing corporal punishment and that father would not be able to protect them. They also did not want to participate in any conjoint counseling. When the social worker raised the possibility of unmonitored visits with mother, the children consistently stated they did not feel safe with mother.
The report opined that the parents had demonstrated limited insight into the issues that brought the family to the Department’s attention. During a recent telephone conversation with a social worker, mother stated that she was unaware spanking with a belt was inappropriate. She also noted that she had not hit A.C. in the face.
The Department recommended that the juvenile court terminate reunification services and schedule a hearing for the selection and implementation of a permanent plan for the children under section 366.26. The report stated that the children were adoptable and that they wanted to be adopted by their “grandparents” (i.e., foster care parents) if reunification was unsuccessful.
In early February 2008, the juvenile court continued the 12-month review hearing for a contest, and the court gave the Department discretion to place J.S. with her siblings.
Approximately one week later, the Department submitted a “walk on request” asking the juvenile court to change father’s visitation from unmonitored to monitored. The request arose out of an incident at church a few days earlier when father allowed S.A.S., who was now five years old, and the youngest child (who was now just over one year old) to have lunch with father and mother in father’s van.
The juvenile court granted the Department’s request and ordered that father’s visits with the children be monitored until the contested hearing in March.
At the contested 12-month review hearing in March 2008, mother testified on her own behalf. She acknowledged that during the previous six months, all children except A.C. were present at her visits (though she later claimed J.S. had not been present during visits within the last month). Mother specifically stated that C.S. was involved in the visits during this six-month period. Mother initially claimed she never had any visits with C.S. in a therapeutic setting, but later conceded she had four or five such sessions.
As noted above, the juvenile court initially required that mother’s visits with C.S. take place in a therapeutic setting, but the court dropped that requirement in July 2007.
Mother claimed she had met with A.C. only once since the dependency proceeding began. That was during one conjoint therapy session. Mother claimed the therapist “cut” the sessions after the foster parents said A.C. had broken a window following the session with mother. Mother claimed she spoke with the Department social worker about the issue of visitation with A.C., and the social worker told her “We’ll talk about it later,” but they never did.
Mother testified that she completed a 52-week domestic violence program and an anger management program and was still attending individual counseling. She said that before she began taking classes, she did not believe there was anything wrong with corporal punishment, but now realizes there are other ways to discipline. Mother now believes it is not appropriate to spank with a belt, and she is not worried that she will engage in corporal punishment again.
Mother said that on the previous night, she moved in with a girlfriend because she felt it would increase the chances of the children being returned to her or her husband. If the children were returned to her, she would like for father to live with them if the court allowed it.
Father testified on his own behalf. Father completed a parenting program and was attending individual counseling, where he was learning to be more open about his frustrations. Father stopped counseling and did not sign up for another counseling program for about six or seven months because he did not think he was ready. Father has been attending a new program for a little over two months, and he has completed 10 weekly sessions.
Father had not enrolled in any domestic violence group program because he had difficulty finding a program for male victims of domestic violence. He was dealing with domestic violence through his individual counseling.
If the children were returned to him, father would do whatever it took to protect them, including calling social services or “higher attorneys.”
Father was visiting with the children one or two times per week, except for J.S., with whom he visited approximately three times per month because of occasional problems with the caretakers bringing J.S. The visits last between six and eight hours, and usually consist of going to church or McDonald’s. Sometimes, father takes A.C. to play ball.
Father tries having nightly telephone contact with the children. Lately, they have not been answering at J.S.’s foster home. Father thinks J.S. may have been upset when he told her a couple months ago that she should give mother a chance. Father has seen J.S. only one or two times since then.
J.S.’s counsel called nine-year-old J.S., who testified in chambers pursuant to her attorney’s motion under section 350, subdivision (b).
J.S. was asked about a handwritten letter she had written in late January to the judicial officer presiding over the dependency case. Among other things, J.S. wrote in her letter:
“I would not like to go to individual visits with [mother] even if a social worker was there[.] I would still feel uncomfortable. There could be a million people there but I still would feel uncomfortable. I also don’t see a future with my mom. I would not like to go back with her. She could take as many classes as she wants I[’]m still not going to want to go back[.] I am done with that lad[y.] I’ve put up with her all my life she made me suffer[.] She’s made every body [sic]around her suffer[.] I am through[.] She al[]ready ruined half of my childhood[.] I’m not going to let her ruin my whole entire life[.] Now it’s her turn to suffer. I would also like my grandparents [the foster parents] to adopt me . . . .” (Punctuation applied.)
In the letter, J.S. claimed that “people like [mother] never change.”
J.S. testified that she did not want to change anything she wrote in the letter, and she still felt the same way as when she wrote the letter.
J.S. testified she does not want to visit with mother. J.S. feels uncomfortable around mother and does not want to see her or have anything to do with her.
J.S. was also upset when mother appeared at a school talent show in December 2007. Father was not present; neither were her siblings. Mother gave J.S. “dirty looks.” Although mother received permission from the social worker to attend, J.S. did not feel comfortable. She felt like something was going to happen.
J.S. could not remember when she had her last visit with father. She enjoyed those visits “[s]ome of the times.” She does not have regular visits with him now because she does not trust him. For example, mother once showed up at the park while she was visiting with father, and he did not do anything about it.
If mother was not living with father, J.S. would not feel comfortable going back to her father’s home because she would be afraid mother would come back. J.S. knows mother moved out, but J.S. does not feel that she has moved out at all.
J.S. would like to live with her brothers and sisters. She does not want to participate in counseling with father. She is concerned that she will say she does not want to go home and he will start crying, making her feel bad. J.S. used to trust father, but he has changed. He started telling her that mother has changed. J.S. does not feel she will ever be able to trust him.
J.S.’s last visit with father was a couple weeks ago. It was monitored by her attorney. J.S. did “not really” enjoy it. She felt uncomfortable when father hugged her. J.S. loves father, but she would not like to have visits with him or live with either father or mother.
A.C. testified he last visited with mother about six to eight months ago. Father once took A.C. to church, and mother showed up. Mother started yelling at A.C. and denied having hit him. Father permitted mother to take A.C. a short distance away so mother could talk to A.C. alone.
A.C. participated in two conjoint therapy sessions with mother about 10 months ago. During the first session, mother did not really talk to him. Mother showed pictures of when they lived together, which reminded him of the beatings. After the first session, A.C. did not want to have another session with mother, but he gave it another try. A.C. left the second session about 15 minutes early because he could not take it any longer. A.C. chose not to have any more sessions with mother. He hated mother and did not want to see or hear from her.
A.C. last visited father about two months ago. A.C. has not seen father since that time because father drove him in a reckless manner to baseball practice. Father was driving “crazy.” A.C. does not want to continue visiting with father. A.C. explained: “He led me to my mom so many times. And, then, when he was about to lead my sister, [S.A.S.], to my mom--she wasn’t supposed to. It wasn’t a visit day or anything. So he had [led] her to my mom so I still don’t trust him.”
Although father calls A.C. almost daily, A.C. refuses to take his calls.
C.S. testified that she does not want to visit mother because she does not trust her. C.S. had a few counseling sessions with mother but they were not helpful. She has no interest in additional conjoint sessions with mother. She is afraid mother could physically hurt her if they had conjoint sessions. After the conjoint sessions with mother, C.S. had visits with mother at the Department’s offices for approximately six months. The visits lasted about an hour. She wanted to give mother a chance to change. C.S. has not seen any change in mother. She is the same person. C.S. has had nightmares about mother and does not love her.
C.S. has not had recent visits with father because she does not trust him to keep mother away. At first, C.S. enjoyed her visits with father, but that changed after S.A.S. told her what happened during the church incident. C.S. does not want to have any visits with father because she could not trust him, even if the visits took place at a Department office. She does not like talking to father on the phone and no longer loves him. C.S. does not believe father will be able to protect her from mother. In fact, neither parent could do anything that would make her trust them.
On cross-examination, C.S. acknowledged that J.S., S.S., and S.A.S. sometimes looked happy when visiting with mother. The last time S.A.S. told her she wanted to return to mother’s home was before Christmas, and she wanted to do so because her dollies were there. C.S. claimed that after S.A.S. had visits with mother, S.A.S. was upset and would throw a fit.
After the presentation of evidence, counsel for the Department and counsel for all six of the children asked the court to terminate reunification services and schedule a section 366.26 hearing. Counsel for the Department also asked the court to terminate visitation with both parents pending the section 366.26 hearing. Counsel for J.S. joined in the Department’s request, arguing that further visits with the parents would be detrimental to J.S. Counsel for the five remaining children asked the court either to terminate the parents’ visits or to approve only monitored visits.
Counsel for mother asked the court to return to her custody, at a minimum, the three youngest children. She also asked for six additional months of services, claiming she had not received reasonable services because her visits with A.C. were “basically . . . non-existent.” Counsel complained that A.C. was permitted to decide for himself whether visits with mother would take place, and the Department did not intervene.
Father’s counsel asked for additional reunification services and that he be given unmonitored visits with the children. Counsel noted during the argument that the foster parents have been very supportive; father and counsel have no problem with them.
The juvenile court found that returning the children to the custody of their parents would create a substantial risk of detriment to them. It also found by clear and convincing evidence that the Department had provided reasonable reunification services. The court stated that the only issue with respect to the reasonableness of services seemed to concern the extent of mother’s visits with A.C. The court noted that, at the six-month review hearing, the court found the Department had provided reasonable services, and mother had not challenged that finding. Therefore, mother cannot complain about anything that took place before the six-month review hearing. Referring to mother’s claim that she was unable to have sufficient conjoint therapy sessions with A.C., the court stated: “This was never brought to my attention for a modified order.” The court also listed in detail all the other services mother had received and the many visits she had had with the children. The court felt it was hard to imagine that anything would be different if mother had more conjoint sessions.
The court terminated reunification services and scheduled a section 366.26 hearing.
The court found that it would be detrimental to the five oldest children to have further visits with their parents, and it terminated the parents’ visits with them. The court stated that these children were very concerned about both mother’s and father’s visits, and felt the children had made good progress considering what they had been through. The court noted that “[t]he impact of abuse is still great on these children” and, based on that and subsequent events, they have a “sound and reasonable basis to not trust their parents.” The court also noted that father had recently violated the court’s visitation orders by permitting mother to visit with two children outside the church.
The court permitted parents to continue having monitored visits at a Department office with the youngest child, but those visits were to take place only once per month. The court offered no reason for reducing the frequency of the visits from what had been weekly, to only monthly visits.
The court ordered the Department to return J.S. to the same foster home where her siblings resided, and it granted requests by counsel to limit the parents’ authority to make educational decisions for the children, placing that authority with the children’s foster parents. The court granted a request by the children’s counsel to declare the six children a sibling group.
The parents filed separate writ petitions challenging the juvenile court’s decision. Both parents complain about the order terminating their visits with the five oldest children, and limiting their visits with the youngest child to monthly monitored visits. In addition, mother claims there is no substantial evidence to support the juvenile court’s finding that she received reasonable reunification services because, according to mother, the juvenile court refused to implement its order for conjoint therapy with A.C. and C.S.
The Department filed an answer opposing the granting of relief. Counsel for all the children except J.S. filed a joinder in the Department’s answer. (As noted above, counsel for J.S. urged the juvenile court to terminate reunification services and visitation.)
DISCUSSION
1. The Standard of Review
We review the juvenile court’s findings of fact under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal.App.4th 1398; Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470.) In so doing, we must resolve all conflicts in support of the court’s determination and indulge all legitimate inferences to uphold the court’s order. If substantial evidence exists, we must affirm. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021; In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) Whether the court made the correct decision based upon its findings of fact is reviewed under the abuse of discretion standard. (In re Brian M., supra, 82 Cal.App.4th at p. 1401, fn. 4; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.)
2. Substantial Evidence Supports the Juvenile Court’s Finding That the Department Provided Mother with Reasonable Reunification Services.
Mother claims the juvenile court’s finding that the Department provided her with reasonable reunification services is not supported by substantial evidence. She focuses exclusively on her alleged inability to have sufficient conjoint counseling sessions with A.C. and C.S.
Mother’s contention fails for numerous reasons. First, as a factual matter, the requirement that mother’s visits with C.S. take place in a therapeutic setting was lifted in July 2007. Prior to that time, mother had a number of conjoint therapy sessions with C.S. And after the therapeutic setting requirement was lifted, mother had regular visits with C.S. during the approximately six months that preceded the contested 12-month review hearing. Therefore, as the juvenile court itself stated, the issue really involves only mother’s visits with A.C.
Second, if mother felt during the reunification period that the Department was not providing adequate services, she “had the assistance of counsel to seek guidance from the juvenile court in formulating a better plan[.]” (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Mother cannot sit idly by and wait until the close of the reunification period to challenge the adequacy of services provided. Otherwise, a parent could “ ‘ “be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” [Citation.]’ ” (Ibid., quoting Sommer v. Martin (1926) 55 Cal.App. 603, 610; see also Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088, 1093 [“Neither may a parent wait silently by until the final reunification review hearing to seek an extended reunification period based on a perceived inadequacy in the reunification services occurring long before that hearing”].) As the juvenile court noted at the 12-month review hearing, mother should not have waited until that hearing to raise the issue.
Third, the standard for the adequacy of such services “is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547; see also Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598 [“in most cases more services might have been provided and the services provided are often imperfect”].) When the reunification services mother received are considered in their entirety, we cannot say the juvenile court’s finding of reasonableness is not supported by substantial evidence.
3. The Juvenile Court’s Findings Regarding Visitation.
Both parents challenge the juvenile court’s orders terminating their visitation with the five oldest children, and limiting their visits with the youngest child to monthly monitored visits at the Department’s offices. We consider these two issues separately.
a. Terminating Visits with the Five Oldest Children.
i. Substantial Evidence Supports the Order Terminating Mother’s Visits.
“After reunification efforts have terminated, the focus shifts from family reunification toward promoting the best interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.) Therefore, so long as reunification services are being provided, “Visitation shall be as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).) However, once services have been terminated, the court is not required to permit further visits if “it finds that visitation would be detrimental to the child.” (§ 366.21, subd. (h).)
In this case, the juvenile court expressly found that permitting mother to continue visiting with the five oldest children pending the section 366.26 hearing would be detrimental to them. Substantial evidence supports that finding.
The juvenile court purported to make the detriment finding under the clear and convincing evidence standard, even though it was only required to apply a preponderance of the evidence standard. (See In re Manolito L. (2001) 90 Cal.App.4th 753, 760-764.) Our conclusion that the juvenile court’s decision is supported by substantial evidence would be the same even if the clear and convincing evidence standard applied.
At the 12-month review hearing, the three oldest children--A.C., C.S., and J.S.--stated unequivocally that they feared mother and did not want to have any additional visits with her. It is clear from A.C.’s testimony and other evidence admitted at the 12-month review hearing that A.C. was traumatized by his experiences. He was extremely upset with mother’s conduct during the few visits he had with her. He was acting out, was physically and verbally aggressive towards other children, and was suspended from school because of his aggressive behavior. Because he was now doing better, the juvenile court was justified in not wanting to do anything that could jeopardize his progress.
A.C. was not the only traumatized child. C.S. also had great difficulty dealing with mother. As discussed above, mother’s initial visits with her had to take place in a therapeutic setting. In addition, C.S. testified at the 12-month review hearing that she had nightmares about mother, was afraid of her, and did not want to visit with her.
There is no question that J.S. was traumatized by her experiences with mother. She was hospitalized due to suicidal ideation and thoughts of harming A.C. Like A.C., she was doing better; she was no longer taking medication and was ready to reunite with her siblings. The juvenile court was justified in not wanting to risk any regression on her part. In addition, not long before the 12-month review hearing, J.S. wrote a very emotional letter to the presiding judicial officer. In that letter, she specifically stated that she did not want to visit with mother, even if a social worker was present during the visits.
Whether there was a basis to deny mother visitation with seven-year-old S.S. and five-year-old S.A.S. is a closer question. However, here, too, we believe substantial evidence supports the detriment finding. S.S. and S.A.S. experienced first hand mother’s physical abuse and the domestic violence between mother and father. Considering the severity of the abuse, it is difficult to imagine that they were not scarred by the experience. In addition, there was evidence that S.A.S. was upset with mother (and father) after the lunch incident at the church, which occurred shortly before the contested review hearing. Notwithstanding her youth, S.A.S. understood mother was violating the juvenile court’s order.
ii. Substantial Evidence Supports the Order Terminating Father’s Visits with the Three Oldest Children, but Not the Order Terminating Visits with the Two Other Children.
Like mother, father claims the juvenile court’s finding that the five oldest children would suffer detriment if he visited them pending the section 366.26 hearing is not supported by substantial evidence. We disagree in part.
Unlike mother, father couches his challenge to the visitation decision in constitutional, due process terms. However, in this context, “due process does not require a higher standard of proof.” (In re Manolito L., supra, 90 Cal.App.4th at p. 764.) The juvenile court was required to make its decision based on the preponderance of the evidence. (Ibid.) So long as its decision is supported by substantial evidence, the requirements of due process have been met.
We conclude that substantial evidence supports the juvenile court’s finding with respect to the three oldest children, but not with respect to S.S. and S.A.S.
The three oldest children’s testimony is sufficient to support the juvenile court’s decision.
They all testified they did not want to have further visits with father. They felt they could not trust him. They felt betrayed and angry when father permitted mother to have access to them in violation of the court’s visitation order, and they resented his efforts to get them to be more receptive to mother.
While there was evidence that would support a finding that the older children would not suffer detriment if father were permitted to continue visiting, substantial evidence also supports the court’s finding to the contrary. We have concluded, however, that substantial evidence does not support the detriment finding with respect to the two younger children--S.S. and S.A.S. These children did not testify at the 12-month review hearing, and there was no evidence to suggest they do not want to visit father. Moreover, in contrast to mother, who had physically abused virtually all the children and had physically assaulted father, there was no evidence father had physically harmed anyone. While S.A.S. was upset with father because he permitted mother to have impermissible access to her, this concern could easily be addressed by requiring that father’s visits with S.S. and S.A.S. be monitored and, if necessary, take place in a Department office.
As we previously explained:
“The Supreme Court has held the statutory procedures used for termination of parental rights satisfy due process requirements only because of the demanding requirements and multiple safeguards built into the dependency scheme at the early stages of the process. [Citations.] If a parent is denied those safeguards through no fault of her own, her due process rights are compromised. Meaningful visitation is pivotal to the parent-child relationship, even after reunification services are terminated. [Citation.] Under section 366.26, subdivision (c)(1)(A), the Legislature has provided a means by which even a parent to whose custody a child cannot currently be returned has a final chance to avoid termination of parental rights if [the parent] can show [he or] she has maintained regular contact and visitation with [the] child, and the child would benefit from continuing the relationship. Obviously, the only way a parent has any hope of satisfying this statutory exception is if [the parent] maintains regular contact with the child.” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505.)
In light of the above, father, not mother, should be permitted to visit with S.S. and S.A.S. pending the section 366.26 hearing, which should be continued to give father a meaningful opportunity to do so.
Although we have concluded substantial evidence supports the juvenile court’s detriment finding with respect to father’s visits with the three oldest children, nothing in this decision precludes the juvenile court from reconsidering the issue pending the section 366.26 hearing.
b. The Juvenile Court Abused Its Discretion When It Reduced the Frequency of the Parents’ Visits with the Youngest Child Without Reason.
Before the 12-month review hearing, both parents were having monitored visits with their youngest child on a weekly basis. No problems were reported in connection with these visits.
When the court terminated reunification services, the juvenile court did not make any finding that the youngest child would suffer detriment if the parents continued to visit with him. Indeed, by permitting those visits to continue pending the section 366.26 hearing, it is safe to assume the court believed the child would not suffer detriment by the parents’ visits. For some unknown reason, the juvenile court dramatically reduced the frequency of their visits with the youngest child from weekly merely to monthly visits.
Ordinarily, we would be reluctant to second-guess a visitation schedule established by the juvenile court. In this case, however, the juvenile court offered no reason for the drastic reduction in the frequency of the visits, and we have difficulty coming up with one on our own. Indeed, we note that although both parents complained in their respective petitions about the significant reduction in visitation with the youngest child, and the Department acknowledged the arguments in its answer to the petitions, the Department offered no argument in response to the parents’ contentions.
In light of the above, we conclude the juvenile court abused its discretion in arbitrarily reducing the frequency of the parents’ visits with their youngest child from weekly to monthly.
We leave it to the juvenile court to determine how often the parents should be permitted to visit with the youngest child pending the section 366.26 hearing. However, if the court is going to reduce the frequency of the visits compared to the level that preceded the termination of reunification services, the court must offer reasons for doing so. Otherwise, the decision appears to be arbitrary, and not one made in the sound exercise of discretion.
Disposition
The writ petitions are partially granted. The juvenile court is directed to (1) reschedule the section 366.26 hearing to a date not less than 90, nor more than 120, days from the date of this decision; (2) barring any change in circumstances, permit father to visit with S.S. and S.A.S. under conditions the juvenile court deems proper; and (3) barring any change in circumstances, permit both parents to visit with the youngest child at least as frequently as they had been visiting with him before the juvenile court terminated reunification services. In all other respects, the petitions are denied on the merits.
This opinion is final forthwith as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
I concur: COOPER, P. J.
Rubin, J., Concurring and Dissenting.
I respectfully dissent from the majority’s reversal of the dependency court’s order terminating father’s visitation with the youngest two of his five older children: six-year-old S.S. and four-year-old S.A.S. The majority concludes the dependency court erred because the majority sees no evidence S.S. and S.A.S. would suffer detriment if father visited them. (Maj. Opn., p. 26.) I conclude the record shows otherwise.
Plainly, mother is the offender here. Like the children, father is a victim of mother’s temper, too (although not to the same depravity). Speaking fondly of father, several of the children paint a sympathetic portrait of a man whose will mother overcame. His hands seemingly tied by his own mind-forged manacles, father “minimize[d] the abuse” and failed to protect the children from mother’s rage and beatings. Whether or not it was his purpose, he was mother’s enabler. The court explained, “He didn’t protect the children at home when [they] all lived together and he still has not protected his children.” When the court asked father what he would do if mother came to his home if the children lived with him, he answered he would “call the authorities” and “try to calm the situation or I’ll take the children and leave.” While attempting to reason with someone is ordinarily laudable, mother was not an ordinary woman who could be assuaged, leading the court to describe father’s answer as “fall[ing] woefully short.”1 A more psychologically robust defender of the children would have demanded mother’s immediate departure. The court noted: “[I]t doesn’t appear the mother is a person that can be calmed. . . . Her conduct continues to be aggressive and demanding . . . . I am not persuaded that [father] would stand up to [mother] and tell her to get away from us.”
The court was particularly troubled by father’s arranging mother’s meeting with the children after church. The court concluded the meeting was “another example of father’s lack of understanding of the needed corrections. It doesn’t appear that [father] even acknowledged being a victim of domestic violence. It doesn’t appear that he has ever acknowledged that he has failed to protect his children and he can’t make progress if he cannot acknowledge the wrong doing.” Because of the church meeting, the court lacked confidence father would follow the court’s orders involving the children’s care and protection. The court noted, father “testified that he would follow the court’s orders but his most recent conduct in the church incident is that he has not.” Drawing an unflattering, but illuminating, comparison, the court noted that six-year-old S.S. reminded father of the inappropriateness of the church rendezvous. The court stated:
“[S.S], she’s only six, but how perceptive she must be. She knew that this visit was against court orders. She was so bothered by it that she told her siblings. She even told her father and reminded him of the court order and father told [S.S.] it will be brief. This is a telling commentary on parents [sic] lack of substantial progress and only the seven-year[-]old and not the parents is concerned with doing the right thing.”
We review the dependency court’s order for abuse of discretion. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401, fn. 4; In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.) A court abuses its discretion if its decision is whimsical, arbitrary, or capricious. To reverse the dependency court, we must conclude its decision was legally unreasonable and ungrounded in practical experience. We ought not second-guess or substitute our preferences for the dependency court, which is closer to the facts and parties; we may not reverse merely because an alternative disposition exists that we find more palatable or less wrenching.
I find the dependency court’s decision to terminate visitation for all five of the older children was reasonable under the abuse of discretion standard--an outcome with which counsel for the five children agreed. The majority proposes the alternative disposition of monitored visitation for the two younger children, and reverses to allow father to pursue it. The majority’s substitute disposition seems to attach great weight to the fact that the two younger children, unlike the older three, did not testify against visiting with father. Given their age, I am not sure we should attach much weight to their stated preferences because the law arguably presumes they are too young to know their best interests. (Cf., e.g., Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(ii) [child may object to termination of parental rights if child at least 12 years old].) But in any case, the dependency court knew it had the option of permitting visitation for the younger two but decided against it. The court found the five children were a “sibling group.” Such a finding foretells a final disposition in which their shared lives and ties remain intact. Their future treatment as a group justifies treating them as a group right now, where injury to one is injury to all. Assessing that risk, the court was skeptical that father would follow its orders. In that vein, the court noted father had discussed the dependency case with the children, and defended mother in such discussions. While we have before us only a cold transcript, the court’s exasperation comes through loud and clear when it noted father “has even told the children to give mother another chance. How inappropriate of a comment is that?” Because I find the record contains sufficient evidence to permit the court to find the two youngest children would suffer detriment from father’s visitation, I dissent from that portion of the majority’s opinion.