Opinion
E069222
06-11-2018
In re J.B., et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.Q., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J266278, J266279 & J266280) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
S.Q. (Mother) is the mother of three children, J.B., C.C. and E.R., who were ages two, seven and eight on the date of the challenged orders. Mother argues the court abused its discretion at the 12-month review hearing when it reduced her visitation with each of the boys to twice a month after it terminated her reunification services. We affirm.
FACTS AND PROCEDURE
Detention—July 2016
In March 2016, when J.B. was one year old, Mother left six- and seven-year-old C.C. and E.R. at their maternal great grandmother's (MGGM) home because she was not able to care for the two children. On July 6, 2016, police were called to the MGGM's home after Mother dragged C.C. into the backyard and hit him in the face, causing a bloody nose and scrapes on his face. Mother believed C.C. was mouthing off to the MGGM in front of company. Mother became hysterical and violent with relatives who intervened. A responding social worker attempted to contact Mother at her hotel room, where she was living with J.B., but was not successful.
San Bernardino County Children and Family Services (CFS) detained all of the children because Mother had a history of domestic violence, Mother knew that an uncle living with the MGGM is a registered sex offender, the maternal great grandfather (MGGF) has a felony assault conviction, and the MGGM has a CPS history. In addition, Mother had prior referrals alleging physical abuse, general neglect and sexual abuse regarding C.C. and E.R. The MGGM and MGGF witnessed Mother hitting C.C. and E.R. on many occasions, and so were deemed not protective of the children. Both children reported Mother spanks them on the buttocks and back with a belt, and C.C. stated Mother had hit him in the face before and made his nose bleed.
On July 8, 2016, CFS filed a petition for each of the three children under Welfare and Institutions Code section 300. As to Mother, each petition alleged under subdivision (b)—failure to protect—that Mother has a history of domestic violence, substance abuse, and anger management issues; and under subdivision (g)—no provision for support—that Mother's whereabouts is unknown. As to J.B., CFS also alleged under subdivision (j)—abuse of sibling—that Mother physically abused C.C. by punching him in the face. As to C.C. and E.R., CFS also alleged under subdivision (a)—serious physical harm—that Mother physically abused the child, and additionally under subdivision (b), that Mother dropped off the child to live in the same home as a registered sex offender.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Each petition also made allegations regarding that child's father. For simplicity, we refer to these three fathers only where necessary. At the 12-month review hearing, the court: ordered continued reunification services to J.B.'s father—J.B. had been placed with the paternal grandmother; terminated C.C.'s case with family law orders to C.C's father; and placed E.R. with E.R.'s father on family maintenance.
CFS encountered considerable difficulty in physically detaining the children. Family members helped to hide C.C. and E.R.; they were eventually located at the home of a paternal relative only with the involvement of "many law enforcement officers" from two different jurisdictions. Mother and family members refused to disclose where Mother and J.B. were. At the detention hearing held on July 11, 2016, the court issued a protective apprehension warrant for J.B. On July 13, the court quashed the warrant because J.B. had been brought into protective custody. J.B. was placed in the home of a paternal relative. C.C. and E.R. were placed together in a foster home.
Jurisdiction—July-August 2016
In the jurisdiction and disposition report filed July 27, 2016, CFS recommended the children remain in placement, the court sustain the petitions, and Mother receive reunification services. Mother denied physically abusing the children. She stated she never spanked them with a belt, and rarely spanked them at all. She denied hitting C.C. in the mouth with a closed fist or drawing blood. She stated she merely slapped him and that the MGGM and family present in the home overreacted. Mother stated there was domestic violence in her prior relationship with C.C.'s father, but that the children never witnessed it happening. She explained that, although they did see her injuries, she did not believe they understood how she incurred the injuries. Mother denied domestic violence with the fathers of J.B. and E.R. Both C.C. and E.R. told the social worker that they had witnessed Mother hitting C.C.'s father over the head with an object, causing him to bleed, and had seen Mother hit their maternal uncle. They had seen Mother and J.B.'s father yelling and cursing at each other, and they had seen Mother yell and curse at their own fathers. Mother denied having substance abuse problems and stated she had only ever used marijuana. She stated she had gotten a medical marijuana recommendation two years prior, but had stopped using it a year ago. Mother failed to show up to a mandatory drug test arranged by the social worker. J.B.'s father reported that Mother did use marijuana occasionally, as did E.R.'s father when they were together. C.C.'s father was aware of Mother's marijuana use and had been concerned about Mother because he had seen her exhibit symptoms of methamphetamine use. Mother did not respond to the social worker's attempt to arrange a visit with the children.
Mother was not present for the jurisdiction hearings on August 1 and 5, 2016. On August 4, 2016, CFS filed an amended petition for each child. Regarding Mother, the allegation regarding no provision of support under section 300, subdivision (g), was deleted for all three boys, and the serious physical abuse allegation under section 300, subdivision (a), was changed to abuse of sibling under subdivision (j) for E.R.
The further jurisdiction and disposition hearing was held on August 31, 2016. Mother was not present. The court took jurisdiction of all three children and ordered CFS to offer Mother reunification services. The court authorized supervised visitation once a week for two hours. The court stated it did not have any additional information regarding Mother's whereabouts, in response to a question by one of the caregivers.
Six-Month Review—September 2016 to April 2017
In the six-month review report filed February 22, 2017, CFS recommended Mother continue to receive reunification services. The social worker first learned of Mother's whereabouts in mid-November 2016. Mother began working on her case plan, but had not begun outpatient drug treatment. Mother completed individual counseling and made progress in understanding the reasons for the dependency. Mother was recommended for an appointment with Behavioral Health to be evaluated for bipolar disorder and anxiety. Mother was inconsistent with drug testing and "moderately consistent" in visiting with her children beginning in November. Mother questioned whether she needed drug abuse treatment and stated she has no problems with drug abuse. Mother tested positive for drugs twice and was a no show twice. Mother's visits with the children went well—she interacted well with the children and the children enjoyed the visits and were bonding with Mother. However, the two older children were "very distraught" on a few occasions when Mother did not show up for the scheduled visit. The social worker opined that Mother and the children would benefit from unsupervised visits so Mother could demonstrate the parenting skills she had learned and the children could learn to feel safe and protected in her care. However, unsupervised visits would not be possible until Mother underwent drug treatment and consulted her physician to come up with a plan for pain management that did not include marijuana. Mother and J.B.'s father lived together.
Mother appeared for the first time at the six-month status review hearing set for March 3, 2017. The hearing was continued to allow Mother's newly appointed counsel to "get up to speed." Mother was not present for the continued six-month hearing held on April 17, 2017. The court considered whether to continue Mother's reunification services and warned that, because Mother was not consistently drug testing and may have falsified testing documents, Mother's services might potentially be terminated at the continued review hearing. Mother was present for the continued six-month review hearing held on April 26, 2017. The court granted continued reunification services pursuant to an agreement between CFS and Mother, but warned Mother that she needed to complete outpatient drug treatment and that she would not be accepted into a program unless she stopped using marijuana and started testing negative for drug use.
Twelve-Month Review—May to September 2017
CFS filed a status review report for C.C. on July 18, 2017, and one for J.B. and E.R. on July 19, 2017. CFS recommended continuing reunification services for Mother. Mother continued to work on her case plan and was regularly visiting with the children. The visits were going well. However, Mother was "having a difficult time with consuming marijuana." Mother had finished her parenting, anger management and domestic violence classes. Mother started outpatient drug treatment on May 1. Mother had a positive drug test on May 15, and had missed some group meetings in May. In a telephone conversation on July 13, 2017, Mother's drug treatment therapist told the social worker that Mother had been clean since June 19. Between April 14 and July 3, 2017, Mother had been ordered to randomly drug test seven times and had six positive tests and one no show.
Mother was present for the 12-month review hearing on July 28, 2017, which the court continued so the social worker could be present. Mother requested unsupervised visits and increased visitation from the two hours weekly. The court replied, "I am going to deny any thought of unsupervised visits." The court noted the visits were going well, but was concerned about Mother's continued use of marijuana.
CFS filed an additional information to the court on September 13, 2017, in which it now recommended terminating Mother's reunification services and reducing visits to once a month. Mother had been discharged from the outpatient drug treatment program because of her increasing levels of THC. The program offered Mother inpatient treatment, but she refused. During a meeting with Mother, the social worker expressed concern about Mother having missed two weekly visits with E.R. in a row and her continued marijuana use. Mother stated she uses marijuana to manage her pain. When asked how she will manage her pain while caring for her children, Mother replied, "I do not know." Mother asked for more frequent visits.
The 12-month review hearing was held on September 22, 2017. Mother's counsel stated, "It appears she may have left. She may be sitting in the car in the parking lot." The court stated, "I understand the mother came to court with [J.B.'s father] so she is around somewhere but apparently refusing to come in." Mother's counsel argued that Mother uses marijuana for pain rather than medication "that she feels really messes her up mentally and really impacts her ability to properly and competently parent her child." Counsel represented that Mother refused the offered inpatient drug treatment program because she could not take off work for 30 days and did not want to miss visits with her children. Mother asked for another outpatient program. The court terminated Mother's reunification services to each of her children and reduced visits to twice a month, rather than the once a month that CFS recommended, with authority for CFS to liberalize if Mother became consistent.
This appeal followed.
DISCUSSION
Mother contends the court abused its discretion when it reduced her visitation from once a week to twice a month after it terminated her reunification services. We disagree.
The juvenile court has broad discretion in fashioning visitation orders, and the court's determination will not be disturbed on review absent a clear abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) In fashioning a visitation order, the juvenile court should balance the interests of the parent and the child, and impose any conditions on visitation consistent with the child's best interest under the particular circumstances of the case. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) Moreover, once reunification services are terminated, the court's focus shifts to the child's need for stability and permanency. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Mother fails to establish an abuse of discretion. First, the court had just terminated reunification services because Mother had been dismissed from outpatient drug treatment, was not willing to participate in inpatient treatment, and was not willing to stop smoking marijuana despite warnings from the judge and social worker that Mother could not regain custody of her children, or even progress to unsupervised visits, until she could show she was off drugs. Because services were terminated, there was no prospect of Mother regaining custody any time in the near future, and so it was not irrational or arbitrary for the court to reduce the weekly minimum visitation order. Second, there was evidence that Mother was inconsistent with her visits and that this caused the children stress. Although visitation with Mother generally went well, she was rarely consistent in her visits despite being granted weekly visits. Mother did not visit the children at all in August, September, October or November 2016, at the beginning of the dependency. At the six-month hearing, Mother was described as being "moderately consistent" with visiting her children. In the 12-month review report it was reported she had missed two visits in a row, and by the 12-month review hearing she had missed three visits in a row. Moreover, Mother's inconsistent visits were emotionally impacting C.C. and E.R., in that they were described as "distraught" when Mother did not appear at their scheduled visits.
The juvenile court did not terminate visitation and allowed CFS authority to liberalize visitation if appropriate. In fact, after terminating her reunification services, the Court granted Mother double the visitation that CFS recommended, despite hearing evidence that Mother did not use all of the visitation she had previously been granted. Because the court did not deny or terminate visitation, it was not required to make a finding of detriment before modifying visitation. Here, we find no abuse in the juvenile court's finding that curtailment of visitation was in the children's best interest.
DISPOSITION
The court's order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.