Opinion
A152649 A153865
05-18-2018
In re S.P. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. D.F., Defendant and Appellant. D.F., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1300690, J1300693)
In these consolidated juvenile dependency proceedings, D.F., mother of S.P. and S.D., appeals from September 28, 2017 orders (one as to each child), entered after a dispositional hearing on Welfare and Institutions Code section 387 supplemental petitions, in which the juvenile court, on termination of a guardianship of the children, placed the children in foster care and denied mother's request for reunification services. D.F. also petitions for extraordinary writ review of March 8, 2018 orders (one as to each child), entered after the six-month status review, in which the juvenile court scheduled a hearing pursuant to section 366.26 to determine the children's permanent placement. Pending our resolution of the petition, mother requests a temporary stay of the section 366.26 hearing set for June 14, 2018. In her briefs and petition, mother limits her arguments to the court's visitation directives. On our own motion, we consolidated the appeal and writ proceeding. We conclude mother's contentions challenging the visitation directives have no merit. Accordingly, we shall affirm the orders filed on September 28, 2017, deny the petition for extraordinary writ review on the merits, and deny as moot the related request for a temporary stay of the section 366.26 hearing.
All further unspecified statutory references are to the Welfare and Institutions Code.
The children's fathers are not parties to these appellate proceedings.
FACTS
Because of the issues raised by mother, we set forth only those facts as are necessary to resolve these appellate proceedings.
I. Background—2013-2014 Section 300 Dependency Proceeding
In June 2013, the Contra Costa County Children & Family Services Bureau (the agency) detained four-year-old S.D. and three-day-old S.P. after receipt of information that mother had a chronic substance abuse problem and that at the birth of S.P. mother tested positive for marijuana and cocaine and S.P. tested positive for cocaine. The agency filed for each child a petition under section 300, alleging the children were at substantial risk of harm due to mother's chronic substance abuse problem. The juvenile court took jurisdiction and declared the children dependents of the court. At the disposition hearing, the children were placed in the home of their maternal grandmother, and mother was granted reunification services and weekly (two-hour) visits, to be supervised by the maternal grandmother.
Before the six-month review hearing, the agency submitted a report which recommended that the court terminate mother's reunification services and appoint the maternal grandmother as the children's guardian. The agency social worker stated mother had been provided with numerous referrals, but she failed to participate or complete any substance abuse programs. At the six-month review hearing, mother's reunification services were terminated, and the court scheduled a section 366.26 permanency planning hearing. At a hearing on July 10, 2014, the court appointed the children's maternal grandmother as guardian, mother was granted reasonable visits to be determined by the guardian, and the juvenile dependency petition was dismissed. II. Case No. A152649—September 27, 2017 Orders Issued After Jurisdictional and Dispositional Hearings on Section 387 Supplemental Petitions
Less than three years later, in May of 2017, the agency filed for each child a section 387 supplemental petition seeking to regain custody of the children based on allegations, later amended, that the children's guardian had engaged in a domestic violence incident with her husband while the guardian was intoxicated with alcohol, and the guardian had used inappropriate physical discipline on eight-year-old S.D. The agency detained the children, and placed them in separate homes of relatives. At the detention hearing, the court was informed that mother had not seen the children since either the fall of 2016 or January of 2017 because the guardian had not permitted any contact. The court granted mother a minimum of weekly (one-hour) visits to be supervised by the agency or a professional designee.
1. Jurisdictional Hearing
At the June 22, 2017 jurisdictional hearing, the guardian pleaded no contest to the amended allegations in the section 387 supplemental petitions, the court found the children were persons described by section 300, and the matter was continued for a dispositional hearing. While mother requested a continuation of weekly visits, the court granted her a minimum of twice monthly (one-hour) visits to be supervised by the agency.
2. Dispositional Hearing
Before the dispositional hearing, the agency submitted a report to the court, dated July 31, 2017, recommending that the court make the following orders: termination of the guardianship, change the placement of the children to foster care, and grant mother at a minimum monthly (one-hour) visits that might be supervised. The agency recommended termination of the guardianship because it was "a clear failure in that the children report a consistent pattern of physical abuse and severe punishments." In recommending that the court not provide reunification services to mother, the agency social worker stated: "[Mother] . . . failed at her Court Ordered Family Reunification Plan in 2014. Her failure to reunify with the children was the result both of her consistent lack of effort regarding her case plan, but also due to her manipulative actions in conjunction with [the guardian]. Her failure to reunify with her children left them in the care of [the guardian] whom [mother] states was abusive to her throughout her childhood. The current incident and the severe physical abuse [S.D.] endured is attributable to the actions of [mother] as well [as] [the guardian]. It is further noted that the children all state that the physical abuse by [the guardian] was ongoing and occurred while [mother] lived in the home with [the guardian]. [Mother] took no action to protect the children or report the abuse." The agency social worker reported on the family's current circumstances in the following manner: "The family continues the pattern of instability and emotional excess. [Mother] has missed a visit and [became] hysterical in the [agency's] office, and has sworn that if reunification services are not granted she will 'kill myself.' . . . The family system is one of conflict, out of control anger and alliances broken and made with intermittent violence. [¶] Neither [the guardian] nor [mother] has fully realized their role in the instability and abuse of these children. Neither has admitted their role and owned the problems that led to this dependency."
The agency social worker additionally reported on the circumstances of the children. The guardian reported that S.D.'s school grades were poor and the child was "a behavioral problem with multiple parent meetings." The child stole items from classmates, and was known "to lie chronically and to be openly defiant." When questioned after removal from the guardian's home, S.D. stated he was afraid but cared about the guardian, who was " 'granny.' " The child was "much more positive and warm about [mother], whom he call[ed] 'mommy.' " Since their removal from the guardian's home, the children had not manifested any emotional upset, trauma, or loss at their new placements or in the presence of the agency social worker. However, S.P.'s foster care parent reported the child spoke about past punishment at the guardian's home, and when the child was in a car driving near the guardian's home, the child said, " 'I don't want to go there! NO! We get hit!' " The agency social worker reported that overall, supervised visits between mother and children had "gone well," mother was "loving and appropriate in her visits," and mother had attended most of her visits, except one which she missed due to a late bus. The agency social worker recommended that the court grant mother at a minimum monthly (one-hour) visits that may be supervised.
A contested dispositional hearing was held over three days, August 31, September 5, and September 28, 2017. The court considered testimony of the agency social worker and mother. The court also admitted into evidence a document from mother's outpatient drug treatment program, verifying her enrollment in the program on July 18, 2017, and that she was expected to successfully complete the program in January 2018, and photographs taken of S.D.'s injuries.
The agency social worker testified as to the mother's current efforts to address the problems that led to the initial dependency. Since mid-July 2017 and as of the date of the court hearing, August 31, 2017, mother had been engaged in participating in services, including drug dependency services, drug testing, parenting, and domestic violence classes. The social worker had not received written reports but the program staff had "raved" about mother and thought she was a " 'great addition to the group[.]' " A month before the hearing, mother started new employment, and she was currently employed at the time of the August 31, 2017 hearing. Mother had lived in various places, and she had told the social worker on the morning of the hearing that she had secured an apartment but she was not currently living there. Mother had been visiting the children. The agency visit supervisor reported that during the visits mother and the children were "very loving, appropriate," and the children were very " 'huggy.' " During the visits, the younger child had held mother's hand, not wanting to let her go, and had talked about wanting to go home, and the older child had asked about seeing mother at times other than the visits. As far as the agency social worker knew, mother had not made any promises to the children about their "coming home."
The agency social worker testified the agency had considered offering mother reunification services but concluded it would not be in the children's best interests. The agency had previously offered mother "a full term of services," but "she had failed to participate in virtually anything . . . ." Between 2014, when mother's reunification services were terminated, and May 22, 2017, when the children were again detained, mother had made no efforts to address the issues that brought about the initial dependency. During the guardianship, mother had not been truthful about her living arrangements, which made it very difficult for the agency to provide services. When mother was questioned about the matter, mother said she had left everything to the guardian. Mother was told to " 'stay in the background,' " the guardian would " 'end up with the' " children and the agency would go away. When questioned about her knowledge of the physical abuse occurring in the guardian's home, mother said the guardian had physically abused all the people in the home, including mother. The agency social worker had not specifically asked the children if mother was actually present when the abuse took place. However, the agency social worker stated that if the guardian was abusive to everyone in the home, including the children, and mother resided in that home, then the agency social worker believed mother was aware the children were being abused. As to mother's current situation, the agency social worker stated mother was still trying to establish her life and gain her independence, and therefore, the agency did not feel she was ready and able to take custody of the children.
Mother testified that while the children were under the guardian's care, mother lived with the guardian on and off between January 2016 and December 2016. During that time, mother saw the children when the guardian needed a baby sitter or when the guardian left town. Otherwise, mother had not seen the children in 2016, and she last saw them in January 2017 and had not seen them until after their detention in May 2017. While mother was present in the guardian's home, she did not see any inappropriate conduct, and the children did not complain about any form of inappropriate discipline.
Mother also testified to the circumstances leading to the placement of the children with the guardian. According to mother, before the start of the dependency case in 2013, the guardian had become an ordained minister, she had stopped consuming any alcohol, and she was less verbally and physically abusive. The guardian had not told mother about or discussed any of her criminal convictions when mother was in the home. Until mother read the agency's reports, she had not known about the guardian's history of violence, including an arrest for an assault with a deadly weapon. The agency had not informed mother of the guardian's criminal history when mother agreed to placement of the children in the guardian's care. Mother stated that between 2013 and 2014 when the guardianship was in place, mother was living in the guardian's home under the impression the guardian was going to adopt the children. Mother tried multiple times to get information about completing her case plan but could not reach the agency social worker who was then assigned to the case. However, when the social worker visited the guardian's home, mother hid in the closet. When asked why she did not speak to the social worker at that time, mother stated she was following what the guardian had told her. Mother was "just rolling with the punches," and "just felt like it was the right thing to do." Mother agreed to hide in the closet because the guardian said that if the agency found out that mother was living in the house, the agency would take the children permanently. Mother initially admitted that S.D. was told to lie if the child was asked where mother was living during the guardianship, but mother then claimed she never asked the child to lie about anything. Although mother knew of the report that S.D. was beaten badly because the child told lies, mother stated she never coached the child to lie "ever; that never was in my plan." Mother learned of the incident that led to the children's detention in May 2017 when she got several telephone calls while she was in Las Vegas for her birthday.
Mother denied she was living a chaotic lifestyle. She admitted she had failed to complete a case plan for the return of the children. She stated she did not want to fight with the guardian regarding the children because "[i]t was just too much of emotional distress . . . mental drag to me." Over the years, she had been employed, working at different jobs, and had started her most recent job in July 2017. At the time of the September 2017 hearings, mother was in a recovery program, which she attended five days a week, three hours each day. She had previously used cocaine but had last used cocaine four years before the hearing, and her current treatment program was for her marijuana dependency. Her drug tests were clean showing no drugs. She was willing to submit to random drug testing at the agency. She visited the children, during which time she would talk and play with them and help them with their school homework. Mother admitted she missed two visits with the children.
Following argument by counsel, the court set aside the guardianship, and the agency was granted custody of the children for continued placement in foster care. The court also determined that at that time it was not in the children's best interests to grant mother reunification services. In so ruling, the court explained: "It's very clear to this court that this was a pass-through" situation in which the children's grandmother accepted guardianship of the children and mother stayed in the home. While mother "may have come . . . and gone, but the children and [guardian] all admit mother was living in the home. [Mother] may not have been there every single second, but she sure as heck knew about the abuse. [¶] I don't believe for a second mother saying she didn't know about it. I think mother, now, is probably trying to get her life together. If she's in the process of changing, she has a lot of changing to do—a lot. [¶] But I don't find her credible at all. And I am sorry about that, because she has a very sweet way of talking and . . . answering. And she certainly can cry at will. But I certainly do not find her credible . . . ." The court further stated, "I hope [mother] does well in her job. She did [embezzle]. That's how she lost her last job. So I hope she learned her lesson. [¶] She has a transient lifestyle. She may have changed a little, and maybe down the road a [section] 388 [petition] may be appropriate—down the road—but, right now, I don't find it in [the children's] best interest to return [them] to the mother. And implicit in that I do not feel the children would be safe, I do not find it would be in the best interest[s] at this time to grant services to mother."
With regard to the issue of visitation, mother's counsel objected to the agency's recommendation to reduce the minimum visitation to monthly (one-hour) visits and requested an order confirming the current agency arrangement of weekly (one-hour) visits. The agency's counsel contended that the agency was willing to arrange at a minimum twice monthly (one-hour) visits. The agency staff conceded the visits were going well, but believed the children should be allowed to become stabilized in their current placements. The children's counsel stated that because the case was not one of reunification, counsel thought supervised monthly (one-hour) visits were appropriate and supervised visits should not be more than twice monthly. According to their counsel, the children were in the process of healing, and while they enjoyed visiting with mother, she was a friendly visitor and not acting in a parental role. The children's counsel also argued she did not want the children to have hope that they were going to reunify with mother.
The court ruled that weekly visits were not appropriate, but ordered at a minimum supervised monthly (one-hour) visits. If the children asked for more visits, the agency could increase visits to a minimum of twice monthly after receiving input from the children's therapist and the children's counsel, and after giving 72 hours' notice to the children's counsel before any increase to twice monthly visits. In so ruling, the court believed mother's conduct of deceiving the agency as to where she was living during the guardianship had taught the children to lie about the situation and mother had not really changed because "she even lied to the court with impunity." The court also believed mother was aware of the abuse suffered by the children in the guardian's home. The court acknowledged that mother was trying to change "in some ways," and it would not be "all bad" for the children, who had suffered terrible abuse, to visit with mother, who presented herself as "this very sweet person" and was "very sweet" with the children during visits. Nevertheless, the court ruled its visitation order was in the children's best interests as it would allow them to feel safe now that they were in stable placements and would not give them any false hope: "They see this sweet person, and they think, 'Oh, golly, that would be great.' " Mother filed timely appeals from the September 28, 2017 orders. III. Case No. A153865—March 18, 2018 Orders Issued After Six-month Status Review Hearing on Section 387 Supplemental Petitions
In pertinent part, the court's printed orders directed that: "Children & Family Services arrange visitation. Visitation with mother will be for a minimum of one hour one time per month and [must] be supervised. . . . [T]he Agency consider the child's wishes and input from the child's counsel and child's treating therapist in establishing the frequency, time, place, and length of visits with [mother] . . . ," citing to In re Danielle W. (1989) 207 Cal.App.3d 1227, In re Chantal S. (1996) 13 Cal.4th 196, and In re Julie M. (1999) 69 Cal.App.4th 41.
Before the six-month review hearing, the agency submitted to the court a report dated March 5, 2018, recommending that the court continue the children as dependents of the court, and schedule a section 366.26 hearing to determine a permanent plan for adoption of the children. The agency also recommended that the court grant mother at a minimum supervised monthly (one-hour) visits. In support of its recommendations, the social worker reported on mother's circumstances. Since the September 28, 2017 hearing, when supervised monthly (one-hour) visits were ordered by the court, mother had visited the children only twice, on October 5, 2017, and November 22, 2017. During the October 5, 2017 visit, mother gave eight-year-old S.D. a telephone, which was subsequently taken away by the foster parent. At mother's request, the agency arranged a special visit for S.D.'s birthday, but mother did not appear at the visit and did not call to offer an explanation for missing the visit. The foster parent reported S.D. was sad and S.P. had acted out following mother's failure to appear at the scheduled birthday visit. On February 28, 2018, the agency social worker attempted to contact mother by telephone and text. Mother replied by text that she was then residing in Houston, Texas, but she wanted services.
The agency social worker also reported on the children's circumstances: As of January 1, 2018, the children had been placed in the same foster care home. Both children indicated they felt safe in their current placement. Although nine-year-old S.D. was the child who had been most disciplined during the guardianship, the child behaved well in foster care. S.D. was participating in therapy. The child's therapist reported the child was open in therapy but talked only about issues concerning the current placement, and did not talk about previous abuse in the guardian's home. Four-year-old S.P. participated in therapy at a pre-kindergarten Head Start school. The agency staff had determined the children were adoptable, an adoption social worker had been assigned, and a potential adoptive home (not the current foster care placement) had been identified for the children.
At the March 8, 2018 six-month review hearing, mother was not present but she was represented by counsel. The court accepted the agency's recommendation to continue the children's permanent plan of foster care with the goal of adoption. The children had had one " '[w]onderful' " visit with a prospective adoptive family. The children's counsel informed the court that mother was in Texas "[a]nd that is really all we know about her whereabouts." The children's counsel asked the court to modify the agency's visitation recommendation because "mother has not visited or had contact with the children for such a long time," and "reintroducing her in the picture now, if she were to appear and ask for visitation, would probably be detrimental to these children." The children's counsel suggested that if mother did appear and ask for visits that the court require mother to "be assessed by the [agency] or that she come to court." Mother's counsel informed the court that she had spoken with mother and mother objected to the agency's proposed recommendation for the children's permanent plans. Mother's counsel also asked the court to consider following the agency's recommendation for visits because since the May 2017 filing of the section 387 supplemental petitions and until the disposition hearing at the end of September 2017, mother had consistently visited the children except on one occasion and mother had completed a drug treatment program and had been drug tested at that program. According to mother's counsel, following the last hearing in September 2017, mother "was quite distraught and ha[d] kind of fallen off the face of the earth," but until that time she had consistently seen the children. In response, the children's attorney contended her request that mother's visits be preceded by an agency assessment was based on mother's history of substance abuse, her lack of compliance with a previous case plan in 2014, as well as the children's failure to mention their mother for some time.
In addressing mother's request for visitation, the juvenile court noted it had reviewed the agency's August 2017 report, and that it had been there reported that at the time of the filing of the section 387 supplemental petitions mother had been living in the home of the guardian when the children had been abused, and if mother was in fact not using drugs at that time, her conduct in allowing the abuse to occur was "even worse . . . . It was a ghastly situation." The court agreed with the recommendation that mother "should be assessed before any visits if she comes here," and further directed that the children's attorney was to be given 72 hours' notice before any visit. The court issued the modified visitation directives because it did not "want anything more to upset these children. They have been through enough." Mother filed a timely petition for writ relief from the March 8, 2018 orders scheduling the section 366.26 hearing for the permanent placement of the children.
In pertinent part, the court's printed orders directed that "Children & Family Services arrange visitation. Visitation with mother will be for a minimum of 1 hour 1 time per month and must be supervised. . . . [T]he agency consider the child's wishes and input from the child's counsel and child's treating therapist in establishing the frequency, time, place, and length of visits with [mother] . . . ," citing to In re Danielle W., In re Chantal S., and In re Julie M. In each written order, the juvenile court added handwritten directives that mother was to present herself for agency assessment and mother was to provide 72 hours' notice to the children's attorney before visits. --------
DISCUSSION
In her appeal from the September 28, 2017 dispositional orders for each child, mother limits her challenge to the court's visitation directive granting at a minimum supervised monthly (one-hour) visits. Similarly, in her petition for extraordinary writ review, mother limits her challenge to the court's visitation directive that she present herself for an agency assessment and give the children's counsel 72 hours' notice before any visits. For the reasons we now explain, we see no merit to mother's contentions.
A reviewing court will not disturb a juvenile court's decision in a dependency proceeding " ' "unless the [juvenile] court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (Id. at pp. 318-319.)
We initially note that in this case, at the time of the filing of the section 387 supplemental petitions in May of 2017, the children had been out of mother's custody for four years, since 2013, and mother's reunification services had been terminated. When the juvenile court refused to reinstate mother's reunification services, mother's "interest in the care, custody and companionship" of the children was "no longer paramount. Rather, at [that] point, 'the focus shift[ed] to the needs of the child[ren] for permanency and stability[.]' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Accordingly, at the time of the issuances of the September 28, 2017 orders, and the later orders of March 8, 2018, under review, the juvenile court properly focused foremost on the children's best interests. (See ibid.; see also In re Danielle W., supra, 207 Cal.App.3d at p. 1238.)
With respect to the court's visitation directives, we further note that the "juvenile court has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to [a third party]." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) "It is the juvenile court's responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. [Citations.]" (In re S.H. (2003) 111 Cal.App.4th 310, 317.) Moreover, to sustain the appropriate balance, "the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur." (Ibid.; see In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374-1375 [affirming a visitation order where "the juvenile court simply delegated . . . the responsibility of managing the ministerial details of visitation"].) In addition, where appropriate, the juvenile court may also delegate authority over the details of the visits to private individuals with an interest in the case, including mental health professionals or the child's counsel. (See, e.g., In re Chantal S., supra, 13 Cal.4th at pp. 213-214.)
We find no merit to mother's overarching contention that the juvenile court failed to consider proper factors and instead considered inappropriate factors when it made its visitation directives following the September 28, 2017 dispositional hearing. At the time of that hearing, the juvenile court was obligated to "evaluate the likelihood that [mother] would be able to maintain a stable, sober and noncriminal lifestyle for the remainder of [the children's] childhood[s]." (In re Brian R. (1991) 2 Cal.App.4th 904, 918.) Thus, the juvenile court properly considered the overall family dynamics that led to the initial dependency in this case, mother's failure to participate in reunification services when offered by the agency, and her conduct during the guardianship of the children that led to the children's renewed detention in May 2017. Although mother asked for reunification services at the dispositional hearing in September 2017, the juvenile court reasonably found mother had not demonstrated that such services would be in the children's best interests given the history of the dependency. Mother had allowed the children to be placed in a guardianship that proved to be extremely detrimental to the children. In considering the children's bests interests and their need for stability and a permanent home, the juvenile court reasonably determined mother should be allowed at a minimum supervised monthly visits and, if the children requested more visits, that visits could be increased to twice monthly after input from the children's counsel and any therapist who was treating the children.
We similarly find no merit to mother's challenge to the visitation directives issued following the six-month review hearing on March 8, 2018. By that time mother had not seen the children for several months. She had moved to Texas and her circumstances were unknown. Accordingly, the court reasonably decided that before any future visits occurred, mother should be assessed relative to her current fitness to visit with the children, the agency was to secure the input of any therapist treating the children, and mother was to give 72 hours' notice to the children's counsel. Mother contends the directives are improper because "the court in essence terminated" her visitation, without a finding of detriment. We disagree. As noted by the agency, the court's directives do not prohibit or limit mother's visits. The directives reasonably require that before mother resumes visits, the agency should be fully aware of the current situation of both mother and the children. If mother feels she is being improperly denied visits, the issue may be brought to the attention of the juvenile court by way of a section 388 petition to modify. (In re Moriah T., supra, 23 Cal.App.4th at p. 1377.) The cases cited by mother are factually distinguishable, and, in all events, do not warrant a different result.
DISPOSITION
In case No. A152649, the orders filed on September 28, 2017, are affirmed.
In case No. A153865, the petition for an extraordinary writ is denied on the merits. (Welf. & Inst. Code, § 366.26, subd. (l); Cal. Rules of Court, rule 8.452(h).) The request for a temporary stay is denied as moot. Our decision is final immediately. (Cal. Rules of Court, rules 8.452(i) & 8.490(b).)
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Siggins, J.