Opinion
B322523
09-19-2023
In re A.S., a Person Coming Under the Juvenile Court Law. v. ARIANNA W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori Siegel, by appointment of the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly G. Emling, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20LJJP00696, Stephanie M. Davis, Commissioner. Affirmed.
Lori Siegel, by appointment of the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kelly G. Emling, Deputy County Counsel, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
Mother appeals from the juvenile court's order granting a Welfare and Institution Code section 388 petition filed by minor's counsel. As requested by the petition, the court discontinued visitation between mother and minor after finding the visits were detrimental to minor. We agree with the court's conclusion and affirm the order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
On the court's own motion, we take judicial notice of the appellate record in a prior appeal arising from the same underlying case, DCFS v. Arianna W. (B316730). (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
DISCUSSION
A. Legal Principles
A juvenile court dependency order may be changed, modified, or set aside at any time. (§ 385.) Any person having an interest in a dependent child may petition the court for such a modification on the grounds of change of circumstance or new evidence. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 414-415.) To obtain the requested modification, the moving party "must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) When a section 388 petition seeks to modify a prior order granting visitation to one terminating visitation, the court must find that visitation would be detrimental to the minor before granting the petition and terminating visitation. (In re Manolito L. (2001) 90 Cal.App.4th 753, 759-760.) "'The two standards [best interest and detriment] are basically two sides of the same coin. What is in the best interests of the child is essentially the same as that which is not detrimental to the child.'" (In re Jacob P. (2007) 157 Cal.App.4th 819, 829.) "Detriment includes harm to the child's emotional well-being." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357.) "'In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case.' [Citation.]" (In re Mia M. (2022) 75 Cal.App.5th 792, 812.)
There is some disagreement as to whether an "abuse of discretion" or "substantial evidence" standard applies to reviews of orders suspending visitation. (In re T.M. (2016) 4 Cal.App.5th 1214, 1219.) However, many courts that note this disagreement apply both standards or apply the substantial evidence standard. (Ibid.) Thus, we will conduct a substantial evidence review here to analyze the decision. "In so doing, we consider the evidence favorable to the prevailing party and resolve all conflicts in support of the trial court's order. [Citation.] 'Substantial evidence' means evidence that is reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.)
B. Analysis
Arianna W. (mother) does not challenge the court's finding that her now five-year-old daughter, A.S. (minor) met her burden of a "change of circumstance" under section 388. Rather, mother's sole contention on appeal is that there was insufficient evidence of detriment to minor in continuing visitation. We disagree. We discuss only the facts germane to the one issue raised.
The juvenile court sustained a dependency petition based on the parents' failure to protect minor. The petition alleged mother perpetrated violence against minor's father, mother stabbed a neighbor in minor's presence, mother had a history of substance abuse including methamphetamine and cocaine and was currently abusing alcohol and marijuana. By way of disposition, the court ordered mother to submit to an Evidence Code section 730 evaluation to determine a treatment plan, including recommendations as to psychotropic medications. The court also ordered a full drug and alcohol program with testing and aftercare, a domestic violence program, anger management, parenting, and individual counseling. Mother failed to follow her case plan and instead interfered with the social workers and minor's caregivers, destabilizing minor's care.
On June 13, 2022, minor's counsel filed the section 388 petition, requesting the court change the visitation order. At the time of filing, mother's visits were monitored at the Los Angeles County Department of Children and Family Services (DCFS) office. Counsel explained that mother "has disrupted [minor's] placement by making numerous threats to . . . harm the caretaker and calls to the hotline which has caused the police to make frequent visits to the home." In addition, minor's caregiver had submitted a notice to remove minor from her care. Counsel requested DCFS provide a report addressing mother's behavior and whether visitation poses a detriment to minor's care and safety. Counsel argued it was in minor's best interest for the court to address mother's behavior "as there is a direct impact on [her] stability while in placement." In response, DCFS submitted a detailed report and recommended the court order visitation cease for mother until her mental health stabilized. On August 3, 2022, the court granted the section 388 petition, finding that minor met her burden in demonstrating a change of circumstance and that the requested order was in minor's best interest.
Mother has a history of aggressive and harassing behavior towards minor's caregivers and social workers (some of the behavior occurring in minor's presence), which in turn affected minor's stability in her placement. For example, mother refused to release minor to the assigned social worker who monitored visits, prompting DCFS to reassign the family to another social worker. When mother again refused to release minor to a newly assigned social worker, law enforcement had to intervene and direct mother to do so. The court further restricted mother to monitored visits in DCFS offices based on her erratic and paranoid behavior.
Moreover, mother has made numerous, baseless accusations against minor's caregivers including neglect, physical abuse, and teaching minor sexualized or aggressive behavior. Mother also threatened one caregiver that she would call the licensing agency to complain about her. In addition, mother would interrogate minor about scratches on her forearm on multiple occasions, "attempting to get [minor] to name th[is] caregiver as the culprit." The licensing agency and law enforcement subsequently responded to this caregiver's home after receiving an allegation of physical abuse. Minor's daycare received a similar allegation, which resulted in the daycare terminating services for minor. Because of mother's behavior, the caregiver gave notice to DCFS of the removal of minor from her home and minor had to be placed with a new caregiver. While at the new placement, mother continued to threaten to call the DCFS hotline and law enforcement to make false allegations against the new caregiver. Despite warnings from DCFS, mother continued to interrogate minor on the new caregiver's name, address, and if anyone was hurting her in the home.
Therefore, we conclude substantial evidence exists to support the court's finding that continued visitation would be detrimental to minor, such that it was not in her best interest to continue visitation. (See Jasmon O., supra, 8 Cal.4th at p. 419 [the parent's fundamental right to maintain the parent-child bond "is not absolute and may be abridged when it is necessary to do so to protect the welfare of the child"].)
Mother's reliance on In re David D. (1994) 28 Cal.App.4th 941 (David D.) is misplaced. In David D., the Court of Appeal held that harm or detriment to a child cannot be presumed by the fact that the parent has a mental illness; rather the social worker must demonstrate with specificity how the minor is or will be harmed as a result of the parent's mental illness. (Id. at p. 953.) The appellate court reversed the order terminating the mother's parental rights and ordering the children placed for adoption. (Id. at p. 956.) Here, the DCFS's report submitted in response to minor's section 388 petition demonstrated how minor was harmed by mother's behavior (i.e., destabilizing her placement) and supported the court's determination that visitation would be detrimental to minor. The court did not solely rely on mother's alleged mental illness in making the detriment finding.
Contrary to mother's assertions, the court did not permanently terminate visitation. Instead, the court discontinued visits and stated it would reconsider mother's visitation after mother received a psychiatric evaluation. On the record before us, the juvenile court has not set a hearing to terminate parental rights. Thus, "'there will be subsequent hearings, and therefore ample opportunity for the juvenile court to revisit the appropriateness of visitation in light of new circumstances.'" (In re Matthew C. (2017) 9 Cal.App.5th 1090, 1105.)
DISPOSITION
The juvenile court's order granting minor's section 388 petition is affirmed.
WE CONCUR: COLLINS, Acting P.J., MORI, J.