Opinion
G045264
12-09-2011
In re CHARITY H. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. STACY H., Defendant and Appellant.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. DP020931 & DP020932)
OPINION
Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
INTRODUTION
Stacy H., the mother of the minors Joseph and Charity H., appeals from orders issued in connection with the jurisdiction and disposition hearing, as a result of which the minors' father obtained custody under supervision and her visitation was suspended pending psychological and psychiatric evaluations. Because the court did not abuse its discretion in making the orders from which Stacy appeals, we affirm.
FACTS
The minors, Joseph and Charity H., came to the attention of Orange County Social Services Agency (SSA) in February, 2011, on the day after they were born. Stacy's behavior had alarmed staff members of the hospital where they had been delivered, and SSA was called to evaluate her. Stacy's obstetrician and a hospital psychiatrist both opined that the newborns would not be safe with Stacy because of her mental state, and SSA detained both twins.
At the time, Joseph was in the neonatal ICU for sepsis and respiratory distress; Stacy had opposed this care for him.
A detention hearing took place on March 2, 2011. The court ordered separate visitation for Stacy and for Aaron H., the twins' father. Because Stacy obviously needed psychotropic medication, the court also ordered her not to nurse the babies until their pediatrician had consulted with Stacy's primary care physician and with her psychiatrist. The twins went to Boys Town on March 2.
It is not necessary to recite in detail Stacy's history between the March 2, 2011 detention hearing, and the jurisdiction and disposition hearing in May 2011 that is the subject of this appeal. To hit some of the high points, Stacy was under psychiatric holds twice, in March and April, and was jailed for car theft in April. Sometime in March, she called Aaron and left a voicemail message begging him to marry her and leave California with the twins. Around the same time, she also left a threatening voicemail message for one of the social workers.
Aaron reported many such phone calls, as well as in-person visits to his home for the same purpose.
As one of the issues in this appeal is the suspension of visitation, some discussion of Stacy's visits with the twins between March and May is necessary. She was initially allowed seven hours of monitored visits per week, but these often did not go well, and sometimes they had to be cut short. During one of these visits, she remarked that she was going to take the children to Mexico. Several times she resisted giving the children back at the conclusion of the visit. During one such episode, while Joseph was back in the hospital, the police had to be called. At the end of one visit in late March, Stacy started to walk out with the babies. SSA finally cut her visitation to one hour twice weekly. The week before the jurisdiction/disposition hearing, SSA increased Stacy's monitored visits to twice a week for two hours.
Stacy had been convicted in March 2008 of child stealing in connection with her abduction of her older son, Josiah, who was in her ex-husband's custody. The abduction also violated a court order, for which violation she was held in contempt.
The jurisdiction/disposition hearing in May was a sore test of the court's patience and of counsel's professionalism. Stacy constantly interrupted the proceedings, although she was represented by counsel. She repeatedly asked the court to allow her to represent herself or to get her another lawyer, necessitating two Marsden hearings. If there had been any doubt in the judge's mind about her inability to think rationally and coherently, Stacy's testimony and courtroom behavior would have dispelled it.
At one point, the court had to direct the courtroom deputy to sit next to Stacy to keep her quiet.
People v. Marsden (1970) 2 Cal.3d 118.
The court found jurisdiction under section Welfare and Institutions Code section 300. It found section 361, subdivision (c)(1) applied and gave custody of the twins to their father, denying Stacy custody. The court ordered psychological and psychiatric evaluations of Stacy and suspended her visitation entirely pending the results of the evaluations, setting an interim hearing in July on this issue. The court based the suspension of visitation on detriment to the children. The court also granted Aaron's request for a temporary restraining order against Stacy, in favor of himself and the children. The court set a progress review hearing on the visitation issue for July and the six-month review for October 2011.
All further statutory references are to the Welfare and Institutions Code.
On the evening of May 11, before the jurisdiction and disposition hearing had been concluded, Stacy appeared at Aaron's home while the children were there and refused to leave until the police were called. Aaron's counsel filed an application for a TRO against Stacy the next day.
DISCUSSION
Stacy has identified three issues in this appeal. First, she contests the court's suspension of her visitation pending psychological and psychiatric evaluations. Second, she asserts the admission of an interim report on the last day of the jurisdiction and disposition hearing violated her due process rights. Finally, she disputes the court's decision to place the children with Aaron, their father.
I. Suspension of Visitation
We review a visitation order in a dependency proceeding for abuse of discretion; we uphold the order if substantial evidence supports it. (See In re Mark L. (2001) 94 Cal.App.4th 573, 580.) We do not reweigh evidence or render an independent judgment on it. (See In re Laura F. (1983) 33 Cal.3d 826, 833.)
"[T]he court must define the rights of the parties to visitation. The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child. In balancing these interests, the court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of the visitation. The court may, of course, impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it." (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
Stacy repeatedly refers to section 362.1, subdivision (a), as controlling the analysis of visitation in this case. Section 362.1, subdivision (a) applies to visitation when a child is removed from a parent or guardian and placed in foster care. Charity and Joseph did not go to foster care; they were placed with their father.
A. Detriment
The court found that given Stacy's present mental state, continued visitation would be substantially detrimental to the children. The court ordered psychological and psychiatric evaluations for Stacy, with a review of the visitation order in July, only a little over two months after issuing the order.
The court's decision to suspend visitation on detriment grounds pending mental health evaluations for Stacy rests on substantial evidence. Her conduct even before the disposition hearing raised grave concerns about how future visits would affect the children. She had openly discussed spiriting them off to Mexico and repeatedly resisted relinquishing them to their caretakers at the end of visits. She was hounding their father, Aaron, to marry her and take the children away. She had abducted another child in the past, in violation of a court order.
Stacy's behavior during the disposition hearing itself, coupled with the reports of her previous conduct, could well cause the court to conclude there was simply no telling what she might do in the future. The court had good reason to fear she was too unpredictable and too impervious to outside direction to have even monitored visits with helpless infants.
Stacy criticizes the court for "anchor[ing] its detriment finding, in part, based upon [Stacy's] behavior during the trial." Far from being improper, the court's consideration of how Stacy behaved at trial was entirely justified. The court could see for itself whether the SSA reports of her goings-on were credible, contrary to Stacy's insistence that they were all lies, slander, and the product of conspiracy.
Stacy points to evidence in the record that would support visitation, had the court ordered it. SSA had recommended monitored visitation at the outset of the case. Just before trial, SSA increased her monitored visitation from one hour twice a week to two hours twice a week. The social worker testifying at the jurisdiction/ disposition hearing stated she was "okay" with this limited monitored visitation.
When questioned by Stacy's counsel about SSA's recommendation for visitation as part of disposition, the social worker responded, "That's a difficult question to answer because of [Stacy's] behavior."
As we stated above, we do not reweigh evidence. The court heard the social worker's testimony and read the reports. The court was not obliged to agree with SSA; it was, instead, obliged to consider all the evidence and to determine visitation, and the other issues before it, in a way that served Joseph's and Charity's best interests. (See In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.)
The court did not permanently ban visitation. It merely suspended visitation until Stacy could be evaluated, and it scheduled a hearing in the near future to review the issue. Once a mental health professional has assured the court Stacy represents no danger to the children, presumably visits will resume. If the court cannot obtain this assurance, however, it has decided Stacy should not visit. We cannot say this decision "exceeded the bounds of reason" and therefore constituted an abuse of the court's discretion.
B. Notice
Stacy also argues that the children's counsel's request for a finding of detriment was an improperly and insufficiently noticed ex parte motion under section 388 to modify the existing detention order allowing visitation. Stacy has, however, cited no authority to the effect that the court's action was anything other than a proper exercise of its power at a dispositional hearing.
A detention order is by its nature temporary. It lasts only until the court decides placement at the disposition hearing. (See In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420.) A motion under section 388, subdivision (a), is therefore not necessary to modify a detention order, as it would be to change an existing and ongoing dependency order. The disposition order supersedes the detention order without any action by one of the parties. Although everyone involved must receive notice of the place and time of the jurisdiction and disposition hearing itself - and Stacy received this notice - she has cited no authority to support a requirement that any particular finding of a disposition order be effected by motion under section 388.
At the detention hearing, the court ordered seven hour per week monitored visits for Stacy. Before the month was out, SSA cut visitation to one hour per week because of Stacy's conduct during visits. The cutback was supposed to last for only two weeks, but before the two weeks were up, Stacy was in jail for car theft. Visitation was finally increased to two hours twice a week just before the jurisdiction and disposition hearing.
Detriment was certainly going to be an issue at the disposition hearing. Both Aaron's counsel and SSA's counsel raised it with the court on the first day of trial in connection with Stacy's existing visitation.
The court made its determination regarding detriment based on the evidence before it, which included an uncontradicted report of Stacy's appearance at Aaron's house on the previous evening. The twins' counsel asked the court during closing argument for a finding of detriment with respect to visitation. Aaron's counsel joined in the request. These requests were entirely proper given the state of the evidence at that point in the proceedings. Stacy has provided us with nothing to suggest that a court finding in response to these requests required a noticed motion.
II. Admission of May 12 Report
On May 12, the last day of the jurisdiction and disposition hearing, SSA offered an addendum report, dated May 12, 2011, reciting that Stacy had appeared at Aaron's house at 10:00 p.m. on May 11 and was removed by police. It also contained a report by Stacy's sister of a possible threat against Aaron and herself by Stacy. The court received the addendum report into evidence.
We would review the admission of evidence over objection for abuse of discretion. (In re Cindy L. (1997) 17 Cal.4th 15, 35; In re Cole C. (2009) 174 Cal.App.4th 900, 911.) Stacy, however, did not object to the admission of this report. She objected only to one of the statements made in it - the one about her threat against Aaron and her sister - as hearsay and asked to have it stricken. The objection was sustained in part and overruled in part. The court specifically stated it would not use any of the hearsay evidence to which objections had been made as the basis of jurisdiction.
Section 355, subdivisions (b) and (c), establishes the circumstances under which hearsay evidence in a welfare department report may be considered during a jurisdictional hearing.
Because Stacy did not object to the admission of the report itself, she has forfeited any such objection. (See In re Joy M. (2002) 99 Cal.App.4th 11, 20-21.) Furthermore, the court specifically stated it did not rely on hearsay in the May 12 report when it determined jurisdiction. Even if the report should not have been admitted, the error was harmless. (See Evid. Code, § 353, subd. (b).)
III. Award of Custody
Stacy's last disagreement with the juvenile court concerns the award of custody to Aaron. She claims the award was an abuse of discretion because he presented no evidence of "an adequate plan to protect the children" and because his sister, who also resided in the home, had a drug problem.
Stacy appears to have developed this requirement from section 361, subdivision (c)(1), which deals, among other things, with the situation in which the offending parent, not the child, is removed from the home. Under those circumstances, the nonoffending parent may "retain" custody so long as he or she "presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." Obviously, this language does not apply to Aaron. He did not have custody until the court awarded it to him on May 12, and there was no evidence he and Stacy had ever shared a home after the twins were born. In going to live with him, the twins were taking up a new residence.
"The juvenile court has broad discretion in crafting a disposition pursuant to a child's best interest. [Citation.] A reviewing court will not disturb a juvenile court's custody determination unless it '"exceeded the limits of legal discretion.'" [Citation.]" (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
"When a court orders the removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).) Aaron, who was not residing with the twins when they were detained, established his paternity and sought custody. The court was required to place the children with him, unless it found detriment.
The court heard the evidence necessary to assess the propriety of placing the children with Aaron. He had come forward as soon as he had learned of their birth and sought placement with him. Unlike Stacy, he had cooperated with SSA in establishing a case plan. Unlike Stacy, he had visited regularly and without incident. Unlike Stacy, he had no criminal record. SSA had inspected his home and found it acceptable. He showed his commitment to protecting his children by calling the police when Stacy appeared and by seeking a TRO to prevent her unauthorized visits. Assuming he needed a plan for protecting the children, he had one: obtain a restraining order against Stacy, and summon the police if she violated it. As for Aaron's sister's purported drug problem, the court had that evidence before it, such as it was, and considered it. Stacy presented no evidence regarding the sister's use of drugs, and she presented no evidence of any other possible detriment to the twins.
Aaron's mother stated to SSA that her daughter who resided in the same house had a substance abuse problem. Stacy's sister repeated to SSA a statement made to her by Stacy that Aaron's sister was a "drug addict." That was the extent of the evidence about the sister's drug use.
The court gave Aaron custody of the children, but it did so under SSA supervision, as permitted by section 361.2, subdivision (b)(3). There was no evidence in the record that Aaron's sister posed any threat to the children. If she does become a problem, then custody can be revised. Under the present circumstances, however, the court did not abuse its discretion in awarding custody of the twins to Aaron.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.