Opinion
G059323 C/w G059504
03-01-2021
In re EMERY G., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ELIZABETH G., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DP0709) OPINION Appeals from orders of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Affirmed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
INTRODUCTION
This is the second appeal concerning the minor Emery G. and her sojourn in the juvenile dependency system. In the first one, Emery, joined by Orange County Social Services Agency (SSA) and her father, Evan W., appealed from the juvenile court's disposition order of November 2017 returning her to her mother, Elizabeth G., under a family maintenance plan. We reversed the disposition order, holding that Elizabeth's apparently unstable mental state placed Emery in potential danger. We sent the matter back for another disposition hearing.
In re Emery G. (July 26, 2018, G055727) [nonpub. opn.]
Between November 2017 and the termination of jurisdiction in September 2020, Elizabeth continued to exhibit worrisome conduct. By December 2019, the situation had deteriorated so much that Elizabeth's visitation was cut off and the court issued a no-contact restraining order against her, prohibiting her from contacting either Evan, with whom Emery was living, or Emery herself. In September 2020, the court terminated jurisdiction, awarding legal and physical custody to Evan, and extended the restraining order until December 2022.
Elizabeth now appeals from the restraining order. In particular, she complains that the juvenile court abused its discretion by failing to set up a procedure for "virtual visitation" between her and Emery. In addition, the court improperly delegated its authority to determine a visitation schedule to Elizabeth's aunt, Flor W.
We affirm the order. Ample evidence supports the juvenile court's decision Elizabeth cannot be trusted to observe rules regarding visitation with Emery, whether in person or on line. And the only authority the court granted to Flor was the decision whether to serve as an intermediary between Elizabeth and Evan for delivery of written or recorded messages to or from Emery. The court had determined that if Flor did not want to place herself in that position, then there would be no contact at all between Elizabeth and Emery, even indirectly.
FACTS
We limit our recitation of the facts of the case to those relevant to the issues raised in Elizabeth's opening brief, which are (1) the trial court's refusal to modify the restraining order to permit virtual visitation and (2) the delegation of authority to Flor.
Emery, five years old at the time, was detained in June 2017 after Elizabeth threatened to kill her and to commit suicide over a dispute with their landlord. At the end of the jurisdiction/disposition hearing in November 2017, the juvenile court ruled that it had jurisdiction over Emery, but it returned her to Elizabeth under a family maintenance plan. Emery, SSA, and Evan appealed.
We reversed the juvenile court's disposition ruling in July 2018 and sent the case back for a new disposition hearing. Our main concern was that Elizabeth's mental health - which appeared extremely questionable to us - had not been professionally evaluated, and Emery should not be living with Elizabeth before the court had such an evaluation.
The conditions for releasing Emery to Elizabeth in November 2017 included, first, that Elizabeth was not to disparage Evan in front of Emery and was to cooperate with his visitation and, second, that Elizabeth was to take Emery to counseling. Elizabeth began violating both orders immediately. Out of six visits with Evan scheduled in December 2017 and January 2018, only one took place. Emery told a social worker that Elizabeth told her not to be nice to Evan so that he and his mother would not take her away. When social workers went to pick Emery up for visits in January and February, Emery cried and refused to go, stating that Elizabeth had told her she did not have to visit. Elizabeth also failed to cooperate with Emery's counseling.
In May 2018, the court reiterated its orders that (1) Elizabeth was to refrain from disparaging Evan in Emery's presence, (2) Elizabeth was to comply with orders regarding Evan's visitation, and (3) Emery was to receive counseling. At the end of May, SSA applied for a protective custody warrant removing Emery from Elizabeth because of her failure to follow court orders.
The application was granted on May 23, 2018. Emery was placed with Evan's mother. Elizabeth was granted a minimum of six hours monitored visitation, as well as 15-minute monitored phone calls. In June, the court ordered Elizabeth not to record her visits with Emery or her interactions with SSA and to communicate with SSA by email, instead of by texts. In addition, she was limited to two phone calls with SSA per day.
Elizabeth was engaging in a previously used tactic of constantly bombarding social workers with accusing and threatening text messages.
In early August, Orange County Sherriff's officers went to Evan's mother's home because they had received a report of a child attempting to commit suicide. Emery was sleeping at the time; the officers returned the next morning to ask Emery if she wanted to hurt herself. Emery laughed and denied it. The Sherriff's call detail information report about the incident stated, "[Elizabeth] is possibly using emergency services inappropriately as leverage with her court battles."
Emery told her grandmother that Elizabeth whispered to her at the end of visits not to be nice to the grandmother and to pack her belongings because Emery would be moving to her aunt's house. The grandmother also reported Elizabeth's telling Emery to say that Evan had bruised her. A visitation monitor reported that Elizabeth told Emery to listen to her grandmother's conversations and relay them to Elizabeth in secret. Emery's therapist reported that Emery was afraid to tell Elizabeth when she did not like something and that Elizabeth whispers to her. Despite an order forbidding recording of visits, Elizabeth recorded at least two of her visits with Emery. She also told Emery to throw tantrums so that they could be together.
Emery's therapist terminated therapy in September because Elizabeth was sending her so many harassing text messages that it was interfering with her practice.
In September, a substance later determined to be cocaine was found in a cigarette box in Emery's backpack at the end of a visit with Elizabeth. Emery at first said Evan had put it in her backpack; she later retracted this statement. Evan denied putting cocaine in the backpack and stated he no longer even smoked. He immediately took a drug test, which came back negative. Emery told the social workers that Elizabeth had said, "Good job saying it was Evan."
As a result of Elizabeth's refusal to abide by visitation rules, the court issued new rules on October 5, 2018. No more telephone calls; in person visits to be monitored by as many monitors as SSA deemed necessary; no hugging; no whispering; no comments about SSA or the social workers in front of Emery; no taping or recording; no discussing the case. On the very next visit, Elizabeth hugged Emery.
"Court notes for the record that while this Court was on the record modifying the visitation plan, [Elizabeth] disrupted the Court by yelling and left the courtroom."
Evan began a trial visit on April 27, 2019. By late August 2019, he had moved to San Diego with Emery, where he had a job at a rehabilitation center.
Because Elizabeth insisted on discussing the case with Emery, questioning her inappropriately, and recording visits, her visitation was suspended in November 2019. She had repeatedly tried to disrupt Evan's relationship with Emery and their reunification process by fabricating telephone calls and emails, by calling police and emergency services claiming she or Emery was in danger, and by constantly badgering SSA with false accusations regarding Emery's well-being in Evan's care. The court also concluded that the most likely explanation for the cocaine in Emery's backpack was that Elizabeth had put it there.
Elizabeth's reunification services were terminated in December 2019 for lack of progress. After Elizabeth showed up at Evan's work and Emery's school, both of which were supposed to be confidential, a no-contact restraining order was issued against her in December with Evan and Emery as the protected parties.
As a result of the termination of reunification services for Emery, the juvenile court bypassed reunification services for Elizabeth's newborn son, Ethan, who was detained shortly after his birth in April 2020. We affirmed the bypass order. (Elizabeth G. v. Superior Court (Oct. 7, 2020, G059212) [nonpub. opn.].) The request of county counsel for judicial notice of our opinion in this matter is granted.
In June 2020, Elizabeth filed a Welfare and Institutions Code section 388 petition, asking to have reunification services restored. The court denied the petition without a hearing on August 11, ruling that Elizabeth had not made a prima facie case of changed circumstances. She filed a notice of appeal from this ruling on August 14, 2020.
All further statutory references are to the Welfare and Institutions Code.
On September 15, 2020, the court entered the final judgment in Emery's case. The court terminated the dependency proceedings. It gave sole legal and physical custody to Evan. Elizabeth was afforded no direct visitation. The restraining (no-contact) order was extended for three years from December 5, 2019, with the following exception: "Elizabeth . . . may send writings, pictures or audio or video recordings up to 5 minutes in length to [Emery] on a monthly basis by providing said item to Flor . . . . [Flor] may then provide those items to Evan . . . . [Evan] will review the items for appropriateness, and, if the content is appropriate in his sole discretion, [Evan] will share the document or recording to [sic] Emery. If [Evan] finds the contents inappropriate for any reason, [Evan] will so notify [Flor] and return the items to [Flor]. [¶] In addition, Emery . . . may send Elizabeth . . . writings, pictures, or audio or video recordings that are approved by [Evan]. [Evan] will ensure that no identifying information about [Emery's] whereabouts are contained within the items. [Evan] may then provide those items to [Flor] for the purpose of providing those items to [Elizabeth]. [¶] Should [Flor] be unwilling to facilitate this communication, no communication is permitted."
Flor is Elizabeth's aunt. She had been an approved caregiver for Emery since at least August of 2018.
Elizabeth argued that her troubles originated in a misdiagnosis of her mental condition which had been sent to the court in October 2018. She had been falsely labeled as having a personality disorder, and that label had stuck to her throughout subsequent events and proceedings. The court responded that labels had nothing to do with it, that the court did not look at labels but rather at actions. "The problem is not the label. It has always been with [Elizabeth's] behaviors. [Elizabeth] has failed to demonstrate that she can behave appropriately or in a manner to allow for safe visitation with [Emery]." "There is a problem with [Elizabeth] that she will do anything to get her child back. The problem is . . . that 'anything' includes illegal activity, ways of endangering her child just to try to get her child back in her care."
Some of the behaviors cited by the court: "[Elizabeth] continues to perpetuate the false claim that she was sexually assaulted during her [mental health] evaluation, which took place in her previous attorney's office." "[Elizabeth] falsely accused [Evan] of sending her threatening e-mails, demanding that he pay her money, sending Emery to Mexico, and threatening to stab her unborn child[.]"
Elizabeth filed a notice of appeal from this order on October 6, 2020. The two appeals have been consolidated.
DISCUSSION
Elizabeth has raised two issues on appeal. She asserts that the juvenile court abused its discretion in refusing to modify the restraining order to permit virtual visitation between her and Emery. In addition, she asserts that allowing Flor to decide whether they could have indirect contact was an abdication of the court's authority to determine visitation rights.
Although Elizabeth appealed from the court's order of August 11, 2020, denying her section 388 petition, she has supplied us with no argument or authority on this subject. We therefore consider the appeal from the August 11 order abandoned. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.)
"Generally speaking, '[t]he standard of appellate review of ... visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the "best interest" of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked. [Citation.]' [Citation.] [¶] '"[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.]' [Citation.] [¶] '"The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.]' [Citations.]" (Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182.)
We can find no abuse of discretion here. The trial court had substantial evidence upon which to base its ruling that Elizabeth should not have virtual contact with Emery. Elizabeth proved over and over that she could not be trusted to follow visitation rules, even when she was being closely monitored. Her overriding goal was to sabotage Evan's relationship with Emery, and she was willing to resort to extreme measures to do so. Not only did she defy the court's orders regarding whispering, coaching, and recording during visits, she also fabricated phone calls and emails, repeatedly called emergency services with false complaints, and planted cocaine in Emery's backpack to discredit Evan. The juvenile court was well within the bounds of its discretion when it determined Elizabeth could not be trusted to behave properly during video visits, when there would be no way to prevent her from blurting out whatever she wanted to say.
"[T]here are currently no parameters that the court could put in place to ensure safe visits between [Elizabeth] and [Emery]."
As for the court giving Flor authority to determine visitation, even assuming that the exchange of messages contemplated by the court's order constitutes visitation, this characterization of the order misrepresents both its actual language and circumstances of this case. The only discretion the court afforded to Flor was whether she would serve as an intermediary between Elizabeth and Evan for messages to and from Emery. Flor could not be ordered to do this. If she accepted the position - and we would understand her reluctance to place herself in Elizabeth's cross-hairs - then Flor had no discretion at all regarding how she was to transmit messages to and from Evan.
Elizabeth supports her argument with testimony from Evan that he did not believe Flor would agree to serve as intermediary. Therefore giving Flor the right to decide whether to serve made contact illusory and improperly delegated visitation authority to her. She presented no evidence from Flor herself, and we have no other information concerning her willingness to be the go-between.
Elizabeth now argues that the court should have ordered indirect communication through some co-parenting app such as WeParent. She did not make this argument in the juvenile court; she asked for conjoint therapy or the ability to "send messages." "Consequently, we need not consider the matter any further." (In re S.C. (2006) 138 Cal.App.4th 396, 407.)
Elizabeth's argument assumes she was entitled to indirect communication with Emery or that the court had ordered indirect communication. This is not the case. The default position was no contact whatsoever - direct or indirect. If Flor agreed to serve as an intermediary between Elizabeth and Evan for messages, then indirect communication could occur. If she did not, then the default obtained - no contact at all. (See In re Chantal S. (1996) 13 Cal.4th 196, 214 [father not prejudiced by order granting discretion to therapist; court could have ordered no visitation at all; restrictive order windfall to father, not violation of rights].)
It is incomprehensible to us that Elizabeth would object to this extraordinary act of accommodation on the part of the juvenile court. Without this aspect of the restraining order, there is no means for Elizabeth to communicate with Emery at all before December 2022. Yet Elizabeth seeks to have us reverse it and hold it should be stricken from the restraining order as granting Flor too much power. Were we to do so, the trial court's order of "no communication is permitted" would be the last word on the subject, and Elizabeth would lose even this tenuous connection to Emery for two years. But we find no fault in the court's plan.
Elizabeth has not suggested that we substitute someone else for Flor, and we could not usurp the juvenile court's authority in any event. --------
DISPOSITION
The orders of August 11 and September 15, 2020, are affirmed. The request for judicial notice is granted.
BEDSWORTH, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.