Opinion
G055542
06-15-2018
In re CLARK R. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.R., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16DP0269 & 16DP0270) OPINION Appeal from a judgment of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
* * *
T.R. (mother) appeals from the juvenile court's orders denying her petition to modify earlier court orders that denied reunification services, visitation, and terminated her parental rights concerning her sons, Clark (born November 2003) and F.P. (born July 2009) (Welf. & Inst. Code, § 388). Mother contends the juvenile court erred in delegating visitation, and erred in denying her section 388 petition without an evidentiary hearing. For the reasons expressed below, we affirm.
All further statutory references are to the Welfare and Institutions Code.
I
FACTUAL AND PROCEDURAL BACKGROUND
We incorporate the facts and procedural history of this case described in our earlier opinion, which affirmed the juvenile court's dispositional findings removing the children from mother's custody and bypassing reunification services. (See In re Clark R. (Feb. 7, 2017, G053771 [nonpub opn.]). As described in our prior opinion, the contested dispositional hearing showed that mother had continued to abuse alcohol after regaining custody of Clark and F.P., often leaving them in the care of a boyfriend despite the court's order not to allow him to have contact with the children. The evidence also showed mother's verbal and emotional abuse of her boys was so toxic it prompted Clark to contemplate hurting himself, and F.P. often broke down crying. Both boys wanted to live with their adult sister, Sally K., and her husband, and refused to see their mother.
At the contested disposition hearing in July 2016, the court adopted the case and visitation plan contained in the social worker's June 28, 2016 report, which recommended a visitation schedule and description for mother as follows: "In-person 1 [Times] Weekly [Frequency] 04/06/2016 [Beginning Date] Visitation shall be monitored by [SSA or approved individual]. SSA authorized to liberalize visits as to frequency, duration and need for monitoring, reinstating original visitation order only if deemed necessary to protect your child's/children's health and/or safety. [¶] Visits must be held in a therapeutic setting with the children's therapist once appropriate and approved by the therapist[.]"
Mother requested the June 2016 visitation order remain, "which was court authorizing written letters to the minors to be provided to the therapist as well as authorizing therapeutic visits with [F.P.] upon recommendation of the therapist." Mother also requested continued funding of her SCRAM drug bracelet. The court addressed the funding issue, but did not respond to the visitation request.
The court, noting mother had failed to reunify with her older son, R.R., in an earlier dependency case, declared the children to be dependents of the juvenile court, found it would be detrimental to the children to return them to mother's care, and bypassed reunification services for mother (§ 361.5, subds. (b)(10) [parent failed to reunify with a sibling and parent failed to make a reasonable effort to treat the problems that led to removal of the sibling] and (13) [parent has history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for the problem during a three-year period immediately before the filing of the petition]).
The social worker's report dated January 4, 2017, for the six-month review recommended terminating reunification services for the fathers, who had not participated in services, and scheduling a section 366.26 hearing. Clark appeared emotionally and mentally stable and had enrolled in a private school, received good grades, and completed individual therapy in November 2016. F.P. was healthy, and appeared emotionally stable and developmentally on target. He completed individual therapy in September 2016.
They are not parties to this appeal.
Neither child had visits or contact with mother after the disposition hearing. Both children stated they did not want visits with mother. According to the therapist, both boys were "'very adamant about not wanting to see mom or live'" with her, and both boys expressed a desire to remain with Sally. Clark's appointed special advocate warned that Clark's "biggest fear is his mother and the possibility of being returned to her."
The social worker, Sarah Irish, assigned to the case in September 2016, expressed her understanding that the court had not granted mother visitation or contact with Clark. Weekly visits between mother and F.P. were authorized in a therapeutic setting and with the input of the child. But at every monthly contact with the current or previously assigned social worker, each child independently expressed he did not want to visit or speak with mother.
Mother continued to request visits. She left inappropriate voicemails for the children on Sally's phone. She claimed the children were afraid without her and wanted to see her, and she referred to the children as her "kidnapped babies," telling them, they were "being lied to," and "I will see you in January." The social worker stated mother "continues to be disoriented with the reality of the situation," and that it was in the children's best interest "to continue having no contact with the mother." If the children expressed they wanted contact with mother the social worker would make the necessary arrangements.
The court's minutes dated January 4, 2017, reflect the court authorized funding for F.P. "to continue in therapy in order for Mother to possibly progress to a point of participating in conjoint visitation/therapy." The court noted "[a]ll prior orders to remain in full force and effect."
In January and February 2017, the court conducted the six-month review in conjunction with SSA's request (§ 388) to terminate fathers' reunification services. Mother asked the court to return the children to her, testifying she believed the caretaker had been alienating the children from her. She also cited improvements she had made with her life, including making the Dean's honor roll, and receiving certificates in drug and alcohol studies, criminal justice, and human services. She was in school to become a paralegal, and would soon receive a certification. She planned to transfer to Chapman University and attend law school. She had a home, a nice vehicle, and a pet pig as a therapy animal.
The court found it would be detrimental to return the children to mother. The court noted SSA's reports reflected "the evidence of the interaction of mother and the children belie mother's testimony and there still appears to be significant difficulties in the relationship." The court cited mother's messages on the caretaker's answering machine "as indicative of the significant emotional issues that remain unresolved." The court found "no credible evidence of the parental alienation of affection between the children and mother." The court terminated the fathers' reunification services, and scheduled a section 366.26 hearing for June 2017.
The court approved and adopted the case and visitation plans contained in the January 4, 2017 report, which recommended a visitation schedule of one weekly in person visit between F.P. and mother. Visits would be monitored and occur in a therapeutic setting with input from the child. There would be no contact between Clark and mother. The updated case plan did not mention ongoing therapy for the children.
The social worker's report dated June 8, 2017, for the section 366.26 hearing reflected Clark recently had decided he wanted to be adopted, and the social worker recommended a 90-day continuance of the hearing to notify the parents. The report concluded both children were adoptable and termination of parental rights would not be detrimental. Clark was described as healthy, and "very smart and shows insight beyond his years, both into his own life and feelings, and into his family." He appeared "to be overall emotionally and mentally stable. [He] has expressed . . . that he still has a hard time if he is called certain names that his mother called him . . . ." Clark stated he wanted to remain in Sally's home until he was 18, and he told his attorney he did not "want his mom to be able to try and get custody of him, and he does not want to be returned to his mother's care if something happened to the caregivers . . . ."
F.P. was also healthy and developmentally on target. He was doing well in first grade, and he appeared emotionally and mentally stable and happy. He had bonded with the caregivers, and wanted to remain with them until an adult. F.P. identified Sally's family as his own, referring to her and her husband as "mom and dad." Sally and her husband were committed to providing permanency through either adoption or guardianship.
Mother had contacted the social worker for visits "but the court ordered no visitation as to the mother, unless the children want to visit . . . . If the children do want to visit, it must be monitored and occur in a therapeutic setting. At each of the undersigned's monthly contacts with the children, both children have independently and consistently stated that they do not want to see their mother." The social worker also stated "future visitation with the mother is not in the children's best interest due to the severity of emotional abuse inflicted, the children not wanting to have contact with her, and the mother's apparent instability and failure to understand and/or believe that she has caused any harm to her children and that her children do not want to see her."
At a hearing on June 8, 2017, mother requested "a monitored visit set up again." Minors' counsel and SSA objected, noting the court found at the disposition hearing visits with mother would be detrimental, and F.P.'s therapist had opined visits would be detrimental if they resumed. The court stated "there's a history in this case, and the court has addressed this issue on previous occasions after considering previous arguments and submissions. [¶] The court notes the therapeutic process is an ongoing process. Mother is not precluded from submitting written expressions of sentiment to be reviewed with [F.P.] in a therapeutic setting. Hopefully, those written expressions of sentiment will advance the relationship . . . ." The court directed any updated information referencing "any change of the assessment of either benefit or detriment to [F.P.] in consequence of any proposed visits be provided to the court." The court also stated SSA was authorized in F.P.'s case to liberalize or restrict visitation or visitation protocols, and specifically directed SSA to seek input from the child's therapist. "And if there's a recommendation or assessment that visits would be appropriate, court is to be notified [forthwith] and then notice to all counsel. The court would give all counsel an opportunity to be heard prior to the initiation of visits, with therapeutic visits, with" F.P.
According to the social worker's addendum report dated August 15, 2017, both children continued to state they did not want to see or talk to mother, and wished to remain permanently with their caregivers. Mother left multiple voicemails for the caregiver and the social worker. She stated F.R. was "suffering without her and crying for her." The social worker advised mother the children did not want contact with her, but she would arrange a visit or phone call if they wanted contact. Mother asserted the children had been bribed and brainwashed by the caregivers' "cult" and affiliated therapists. The social worker noted the caregivers belonged to, and the foster father worked for, Saddleback Church, a large Christian congregation, and the children had received therapy by licensed therapists contracted through the county and unconnected to the church. Mother maintained the children were removed from her care due to false accusations, they had been happy and healthy in her care, and they should be returned immediately.
On October 2, 2017, the date set for the section 366.26 hearing, mother filed a section 388 petition to change the court's July 2016 order denying mother reunification services. She sought custody of the boys or, alternatively, reversal of the court's June 16, 2016, finding "that visits between Clark and mother would be detrimental to Clark; compel visitation consistent with the court's order as to [F.P.]; and vacate the 366.26 hearing . . . ."
In a declaration attached to the petition, mother stated she had been receiving psychological treatment since April 28, 2017, focusing "on establishing healthier relationships, and taking responsibility for [her] actions." She was no longer in a relationship with Brad F., and acknowledged it was inappropriate for him to have contact with the children. She had worked on her communication skills and anger management. She explained she previously had suffered from chronic and widespread pain attributable to fibromyalgia, but doctors successfully treated the condition, and she had not experienced debilitating symptoms since April 2016. She was in her last semester at community college, consistently on the honor roll, almost finished with a paralegal certification, and had a long-term goal of attending law school. She asserted it was "in the best interests of [her] children for them to be returned to [her] custody."
On October 2, 2017, the court addressed whether mother had stated a prima facie case for an evidentiary hearing on her section 388 petition. The court noted "[t]he duration of the prior time that mother has spent with the children has been freighted with issues that resulted in this case being brought," and there was no showing that "preserving the family unit" would benefit the children. Mother's psychological treatment did not address substance abuse or parenting issues. The court stated circumstances were "perhaps changing at best" or that there was "potential for such change," and that "prima facie has not been set forth either as to best interests or as to changed circumstances." The court denied the petition without an evidentiary hearing.
On October 3, 2017, the court conducted the section 366.26 hearing. Mother testified, asserting she did not believe the children did not want to visit with her. She felt F.P. deferred to Clark because he "doesn't want another punch from Clark in the stomach . . . ." She also believed the caregivers had negatively influenced F.P. against visits and alienated the boys from her. She described her relationship with the children before the case began as "[g]reat." She and the children "all had a very close bond" and it would be detrimental to terminate parental rights. Mother felt she and her children had been abused by the "stupid ass system that we are in."
The court found the children were likely to be adopted by the caregivers, and termination of parental rights would not be detrimental. In terminating mother's parental rights, the court noted the children had a "profound need, for stability and security," which could be obtained through adoption.
II
DISCUSSION
A. Visitation
Mother contends the juvenile court improperly delegated authority to the therapist and F.P. to decide whether visitation between mother and F.P. should take place. We do not find the contention persuasive.
When the court denies reunification services under bypass provisions, "The court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." (§ 361.5, subd. (f); In re J.N. (2006) 138 Cal.App.4th 450, 457-459 [visitation not integral to the overall plan for the children when the parent does not receive reunification services].)
As noted above, in June 2016 the court found it would be detrimental to order visitation between mother and both boys. The court allowed mother to write her children, as monitored by the children's therapist, and authorized visits in a therapeutic setting if the therapist deemed it appropriate. At the July 1, 2016 disposition hearing, mother's counsel argued for reunification services, noting the court had authorized visitation between F.P. and mother in a therapeutic setting if the therapist thought it appropriate. Counsel also acknowledged mother would have the opportunity to ask the court for visits. The court adopted the social worker's recommended case and visitation plan in the June 28, 2016 report which contained a visitation schedule and description for mother as follows: "In-person 1 [Times] Weekly [Frequency] 04/06/2016 [Beginning Date] Visitation shall be monitored by [SSA or approved individual]. SSA authorized to liberalize visits as to frequency, duration and need for monitoring, reinstating original visitation order only if deemed necessary to protect your child's/children's health and/or safety. [¶] visits must be held in a therapeutic setting with the children's therapist once appropriate and approved by the therapist[.]" Mother requested the June 2016 visitation order remain, "which was court authorizing written letters to the minors to be provided to the therapist as well as authorizing therapeutic visits with [F.P.] upon recommendation of the therapist." As noted, the court did not respond to this request.
Mother did not object to the July 1 visitation order, nor did she appeal from that order. (See In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [disposition order final and binding and may not be attacked on an appeal from a later appealable order].) The court later concluded it never reversed the June 2016 detriment finding, but rather ordered specific conditions under which visitation might be permitted should visitation no longer be detrimental to F.P. The court had invited mother to submit written communication to F.P., which the therapist could evaluate to determine if the content was appropriate to explore in a therapeutic setting. This procedure might have established that visits would not be detrimental, but the record reflects mother never attempted written contact with F.P. Consequently, F.P.'s therapist did not assess whether visits in a therapeutic setting might be appropriate, and there was no request to change the detriment finding. Because the court found visits would be detrimental as to both boys in June 2016, and mother failed to comply with the court's directive concerning written communications and review in a therapeutic setting and did not otherwise persuade the court to reverse its detriment finding, the court had no discretion to order visitation. This case is dissimilar from those cited by mother where the court did not bypass services and find visitation detrimental, but nonetheless delegated decisions concerning visitation to a private therapist or the child. (See In re Julie M. (1999) 69 Cal.App.4th 41, 51 [visitation may not be dictated solely by child's wishes]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1478 [trial court ordered no visitation without the permission of the minors' therapists]; In re Christopher H. (1996) 33 (1996) 50 Cal.App.4th 1001, 1009; cf. In re Chantal S. (1996) 13 Cal.4th 196, 213 [approving order requiring visitation facilitated by minors' therapist when satisfactory progress had been made by parent].)
Even if we assume the court revised its detriment finding and authorized SSA to allow mother to visit F.P. in a therapeutic setting, the court did not abuse its discretion. Because the court bypassed reunification services for mother, visitation with her was not integral to the permanent plan because reunification was not contemplated. Given mother's emotional instability and conduct toward the boys, and their feelings of bitterness and resentment toward her, the court was amply justified in denying visitation outright. The court cannot be faulted because it allowed mother an opportunity to repair the harm she inflicted on her sons. Mother did not write to F. P., but instead persisted in falsely claiming the children had been "kidnapped" and that F.P. was desperate to see her and suffering harm in the caregiver's custody. Nothing suggests if mother had submitted appropriate written sentiments, and the therapist had still not recommended visits, that the court would not have entertained mother's request for visits and granted them if appropriate.
Mother argues "the order as interpreted and applied by [SSA] was not followed. Nowhere in the order did the court authorize [F.P.] to determine if he would visit his mother." The court noted after F.P. began therapy in June 2016, the therapist never approved a therapeutic visit because F.P. repeatedly stated he did not wish to see his mother, and in September 2016 therapy ended after the therapist concluded F.P. was emotionally well-balanced and more therapy was unnecessary. As noted, the July 1 order incorporating SSA's June 28 recommendation provided "visits must be held in a therapeutic setting with the children's therapist once appropriate and approved by the therapist[.]" Mother failed to clearly articulate to the juvenile court her view that F.P. was being allowed to veto visits in violation of the court's order, and she agrees F.P.'s "wishes/ emotional well being were a [paramount] consideration . . . ." In any event, mother's failure to submit written communications and sending inappropriate e-mails demonstrate that visits would not have been appropriate, and therefore the therapist could not approve a visit during the time she was treating F.P., especially when F.P. stated he did not want to see his mother. In sum, the court simply required appropriate preconditions before visitation could take place in a therapeutic setting.
Mother asserts F.P. was differently situated than Clark and able to benefit from a therapeutic intervention in his relationship with mother. "[I]t was not too late for [him] to preserve the positive aspects of his relationship with" mother through visitation. The court may have implicitly acknowledged this by authorizing therapeutic visits under specified conditions. Unfortunately, as noted, mother did not take the necessary steps to secure visits with F.P. Because mother did not take the preliminary steps to trigger visits, she may not complain no visits occurred. The juvenile court did not err. B. Section 388 Petition
Mother argues prima facie evidence supported her section 388 petition as to F.P. and the court erred in summarily denying it without an evidentiary hearing. Section 388 provides a parent "may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." Where "it appears that the best interests of the child . . . may be promoted by the proposed change of order [etc.] . . . the court shall order that a hearing be held . . . ." (§ 388, subd. (d).) "The parent seeking modification must 'make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation]' [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Zachary G. (1999) 77 Cal.App.4th 799, 806 [prima facie requirement not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition]; In re Edward H. (1996) 43 Cal.App.4th 584, 592 [changed circumstances means problems that led to the dependency of the child have been resolved or eliminated].)
Mother provides a lengthy argument that a de novo standard of review applies. We adhere to the abuse of discretion standard as articulated in the case law, but under either standard mother was not entitled to an evidentiary hearing on her petition. --------
Mother contends prima facie evidence supported her request for a hearing to determine whether the juvenile court should order reunification services, or alternatively, visitation with F.P.. She states when the court bypassed services at the July 2016 disposition hearing, she had an unresolved alcohol problem, was regularly leaving the children in the care of a violent boyfriend suspected of molesting F.P., and she was yelling abusive names at her children. She asserts when she filed her section 388 petition in October 2017, "she had made significant improvement. During the previous six months [since April 2017] she had been in counseling with Dr. Benjamin Stepanoff, who reported [mother] had stabilized, was less depressed, was making progress on making rational decisions, acquiring new social and personal skills, developing emotional strength and was excelling in counseling." The psychologist's letter, attached to mother's petition, stated "Based on our sessions, I can deduce [her] stability has improved greatly in the aspect of establishing healthier relationships, taking responsibility for herself, and overall continually practicing positive self-care, which she has learned from our sessions. [¶] [She] has come a long way from her initial depression caused by the loss of custody of her children, and each session she continues to progress and display characteristics of a mature and responsible adult capable of making rational decisions for both herself and others. [¶] In addition to her self-improvement, she has also acquired social and personal skills which have aided her emotional growth as well as strengthened her cognitive processing. [¶] It is my opinion [she] has excelled since the initial session, and shows potential to maintain a benevolent view toward herself and others." Mother also asserts "she had broken off a relationship with the toxic boyfriend, was getting help with pain management, which helped control her moods and anger, and had nearly completed a paralegal credential from Cypress College."
In denying the petition, the juvenile court noted mother's psychological treatment did not address substance abuse or parenting issues. As the social worker's reports leading up the October 2017 section 366.26 hearing reflected, after months of psychological treatment mother continued to leave inappropriate voicemails for the caregiver and the social worker. She complained the children had been bribed and brainwashed by the caregivers' "cult," the children had been removed from her care due to false accusations, the children had been happy and healthy in her care, and the court and SSA were "abusing" the children. The section 388 petition considered along with the record demonstrated mother had not made sufficient progress in curbing the reasons prompting her numerous outbursts of verbal abuse. Moreover, the court had assessed much of the information contained in the section 388 petition, including that she had separated from Brad and solved her fibromyalgia pain issues, at the disposition hearing and at the six-month review, and found the evidence wanting.
Mother also had to show granting a hearing would promote F.P.'s best interests. Mother, however, had not visited F.P. since approximately April 2016, and by October 2017 he was well adjusted and thriving in Sally's home. Mother argues "any delay in ultimate permanency was not significant" because F.P. was living with Sally and there was virtually no likelihood placement would be changed in the near term if the court granted her visitation request. But F.P.'s life had been in turmoil since at least 2012, the time of the first dependency case, and likely well before that. (See In re Justice P. (2004) 123 Cal.App.4th 181, 189 [court may consider the entire factual and procedural history of the case in determining whether the petition makes the necessary showing].) After bypassing reunification services, the focus of the dependency proceedings is on the child's need for permanence and stability. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.) Mother simply did not show she had significantly changed, or that visitation potentially would benefit F.P. (In re J.C. (2014) 226 Cal.App.4th 503, 527 [parent's petition for order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability].) The court concluded circumstances were "perhaps changing at best" or that there was "potential for such change," but that "prima facie has not been set forth either as to best interests or as to changed circumstances." The court did not abuse its discretion in concluding mother's petition did not establish a prima facie case warranting an evidentiary hearing.
III
DISPOSITION
The orders denying mother's section 388 petition and terminating parental rights are affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.