Opinion
D071233
02-08-2017
RICARDO C., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY et al., Real Parties in Interest.
Dependency Legal Services of San Diego and Nicole J. Johnson for Petitioner. No appearance by Respondent. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen Ojeil, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency. Children's Legal Services of San Diego and Susan E. Lake for Real Parties in Interest, Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego County Super. Ct. No. SJ13050DE) PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Kenneth J. Medel, Judge. Petition denied. Request for stay denied. Dependency Legal Services of San Diego and Nicole J. Johnson for Petitioner. No appearance by Respondent. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen Ojeil, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency. Children's Legal Services of San Diego and Susan E. Lake for Real Parties in Interest, Minors.
Ricardo C. contends that the juvenile court erred in setting a Welfare and Institutions Code section 366.26 hearing and suspending his visitation with his children. We deny the petition.
Further unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Ricardo C. is the father of C.N.'s five youngest children. C.N. has four older children, one from a teenage relationship, and three with her former husband. This proceeding concerns two of Ricardo's children, Aaron and Manuel, and also involves his stepdaughter, Angela N. C.N. and the children are United States citizens. At some point in time that is not clear in the record, Ricardo was deported from the United States to Mexico. The family was living in Tijuana, B.C., Mexico, at the time of the events that led to the children's dependency proceedings.
In December 2015, C.N. was arrested on drug charges when she crossed into the United States from Mexico. Three-year-old Aaron, five-month-old Manuel, and 12-year-old Angela (collectively, the children) were with her. The San Diego County Health and Human Services Agency (Agency) detained the children in protective custody and filed a section 300 petition on behalf of each child.
Ricardo and C.N. had a history of intervention by child protective services. In 2014, their son, A.C., was born in San Diego with a positive toxicology for methamphetamine. Ricardo and C.N. did not comply with their reunification case plan and the court terminated their parental rights with respect to A.C. C.N.'s 14-year old son was also a dependent of the juvenile court. He had run away from home, claiming that Ricardo used methamphetamine and physically abused him, and that Ricardo and C.N. engaged in frequent, violent altercations. C.N. refused to allow her son to come home.
Aaron had asthma. He had trouble breathing at night and was often very tired during the day. Physicians recommended surgery, but Ricardo and C.N. would not consent to the procedure. When Manuel was first detained, he cried at night and could not be comforted. He did not want to eat or use his pacifier. Angela was parentified. She was accustomed to caring for her younger brothers at home and helped the foster mother by staying close to Manuel.
At the end of August, the Agency sought a court order for Aaron's surgery. At a special hearing, Ricardo withdrew his opposition to the surgery. --------
At the detention hearing, the juvenile court declined Ricardo's request for custody and ordered the Agency to provide liberal, supervised visitation, including supervised telephonic visitation, to him. At a later hearing, the juvenile court declared the children dependents, placed them in foster care, and ordered a plan of reunification services for Ricardo and C.N. The social worker set up two supervised visits per month between Ricardo and the children at the Mexican Consulate. Supervised telephone contact began immediately.
Ricardo frequently telephoned the children, often late at night. At the end of January 2016, approximately a month after the children were detained, the social worker asked Ricardo to telephone the children at set times to avoid overwhelming the foster parent. The social worker advised Ricardo not to discuss the case with the children. Ricardo said that he was going to continue to call the children as often as possible and that he had a legal right to discuss anything he wanted to discuss with them. The same day, Angela contacted the social worker and said that she felt uncomfortable talking to Ricardo. The social worker told her that she did not have to speak with him. The foster parent said that Ricardo made conversations very difficult for Angela. He yelled at Angela and asked her why she was not taking better care of her brothers. Ricardo refused to follow the telephone schedule. He did not think the children's bedtime routine was important and complained that the schedule was interfering with his telephone calls. Ricardo yelled at the foster mother and called her a "fucking bitch" in the children's presence. Angela and the foster parent reported that Aaron was learning bad words and that he was acting out by kicking, hitting and refusing to follow directions.
In June, the foster mother asked the Agency to remove the children from her home, primarily because of Ricardo's continued harassment. The Agency was unable to keep the children together and placed them in separate foster care homes.
Aaron had a difficult time adjusting to a placement without his sister and brother. After visits with his father, he returned home distressed. During a telephone call, Aaron repeatedly said to Ricardo, "You hit my mom." On several occasions, Aaron told the social worker that his father hit his mother and caused her to bleed from her mouth and nose. Aaron easily became frustrated and threw objects, including plates of food, when he was not given what he wanted. He also said that if the foster mother did not give him what he wanted, his mother would come and kill her. The foster mother set up video calls between Ricardo and Aaron. She said that Ricardo's calls consisted of him yelling about the case and how the former foster parent had mistreated the children. Aaron's reaction was to stay quiet and not respond. After in-person visits with his father and siblings, Aaron would cry because he wanted to leave with Angela.
According to Manuel's foster mother, Manuel was a happy and calm baby, and enjoyed seeing Angela. At some point in time, the Agency placed Manuel in Aaron's foster care home.
During in-person visits, Ricardo continued to talk to Angela about the case and pressured her to tell the social workers that she wanted to return to his care. In late April, the social worker learned that Manuel would no longer be permitted to attend the visits at the Mexican consulate because the Agency did not have his birth certificate. The social worker informed Ricardo about the situation. After initially agreeing to provide Manuel's birth certificate to the social worker, Ricardo refused to do so. After more than three months without visiting Manuel, Ricardo provided Manuel's birth certificate to the social worker.
As of August 2016, Ricardo had not enrolled in services. In April, C.N. was released from jail to a residential treatment program. She walked out of the treatment program. Three days later, C.N. showed up unannounced at Ricardo's visitation with the children. Ricardo said that a social worker had approved C.N. attending the visit, but the social worker said that she had no knowledge of C.N.'s visit.
On August 23, minors' counsel (Counsel) filed a section 388 petition asking the court to suspend Ricardo's visitation with the children. Counsel alleged that Ricardo continually disobeyed visitation rules by discussing the case in front of the children. He yelled at the children and used foul language. Counsel argued that the children were impacted by Ricardo's behavior and deserved to be free from the emotional stress that he was causing them.
In September, Aaron's foster mother reported that Ricardo told her that he was capable of killing for his children. According to the foster mother, Ricardo said that if the children were freed for adoption, he would be willing to cross the border and kill. At the time Ricardo made these statements, he was on speaker phone, talking very fast. Aaron was in the room when Ricardo made the threatening remarks. The foster mother immediately directed Aaron to go outside. She attempted to calm Ricardo, but he continued to say that he was capable of crossing the border to kill. After this event, the Agency suspended Ricardo's telephone calls with the children.
The six-month review hearing and hearing on Counsel's section 388 petition were heard on October 24, 2016. The court admitted the Agency's reports in evidence and proceeded by way of a document trial. The parties did not cross-examine the social worker. The social worker reported that Ricardo had not participated in services and that C.N.'s participation in services had been sporadic. During the six-month review period, Ricardo's communications with the children, foster parents and Agency had been continually verbally abusive. Ricardo was often agitated and conducted himself in a threatening manner. The children's court appointed special advocate reported that Aaron returned home distressed from his visits with his father, often using newly-learned swear words.
The court terminated reunification services and set a section 366.26 hearing for Aaron and Manuel. The court addressed Counsel's request to suspend Ricardo's visitation with the children. After hearing argument, the court sustained the allegations in the section 388 petition and suspended visitation.
Ricardo petitions for review of the juvenile court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) He asks this court to remand the matter with directions to the juvenile court to order that additional visitation services be provided to him. This court issued an order to show cause, the Agency responded, and the parties waived oral argument.
DISCUSSION
A
The Parties' Arguments
Ricardo contends that the order suspending his visitation was error as a matter of law. He argues that the court did not apply the correct legal standard and that the court did not make any factual findings concerning any detrimental effect of visitation on Aaron or Manuel. Ricardo also argues that there was not substantial evidence to support a finding that visitation would be detrimental to Aaron and Manuel because the evidence pertained mostly to his negative interactions with Angela.
The Agency concedes that the juvenile court did not articulate the correct legal standard or burden of proof necessary to suspend Ricardo's visitation. The Agency asks this court to remand the matter to the juvenile court with directions to rehear the motion and issue a ruling under the correct legal standard.
The minors contend that Ricardo has not met his burden on review to show that the court erred. The minors argue that the juvenile court implicitly made a detriment finding and that the court is not required by statute to make an express finding under section 366.21, subdivision (h), which governs visitation in the post-reunification period. The minors maintain that the court did not abuse its discretion in suspending Ricardo's visitation with Aaron and Manuel. Further, the minors contend that, contrary to Ricardo's argument, his harmful conduct toward their sibling Angela and his refusal to restrain his behavior is relevant to how future visitation may affect them. We agree.
B
Relevant Legal Principles and Standard of Review
After reunification services are terminated, section 366.21, subdivision (h) directs the court to continue to permit the parent to visit the child pending the section 366.26 hearing unless it finds that visitation would be detrimental to the child. In the context of dependency review hearings, "detriment" means that the action "would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§§ 366.21, subds. (e), (f), 366.22, subd. (a); see also § 366.26, subd. (c)(4)(C) [when parental rights are not terminated at a section 366.26 hearing, the court shall make a visitation order unless visitation would be detrimental to the physical or emotional well-being of the child].) The detriment finding must be made by a preponderance of the evidence. (In re D.B. (2013) 217 Cal.App.4th 1080, 1090-1091 (D.B.); § 366.26, subd. (c)(4)(C).)
"A ruling on a section 388 petition is 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]' " (D.B., supra, 217 Cal.App.4th at pp. 1088-1089.) "[W]e have no authority to substitute our decision for that of the lower court where two or more inferences can reasonably be deduced from the facts." (Id. at p. 1089.)
C
The Court Did Not Apply An Incorrect Legal Standard
At the start of the six-month review hearing, the court stated, "[T]he recommendation . . . by the social worker is to terminate the parents' family reunification services as well as supervised visits for the parents; however, in addition, there is a 388 motion on the table wherein [Counsel] seeks to terminate [Ricardo's] visits saying that he continually disobeys visitation rules and talks about the case in front of the children, uses intimidation techniques on Angela, and yells at the children and uses foul language and scolds the children and is angry with them at visits. The children are affected by seeing this, and Aaron stays quiet. . . . [¶] [I]t's in the children's best interests not to be exposed to that because it's emotionally traumatizing to them; so that's the request."
After a document trial and argument, the court stated that it found evidence to support Counsel's allegations in the social worker's reports, particularly in the most recent reports pertaining to Ricardo's threat to the social worker, and the ongoing negative nature of his contacts with the people involved in the case. One of those allegations was that Ricardo's behavior during visitation was emotionally traumatizing to Aaron and Manuel. The record shows that the court considered the evidence presented and had determined that continuing Ricardo's visitation would be emotionally traumatizing to Aaron and Manuel. Emotional trauma creates a substantial risk of detriment to a child's well-being. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357 [detriment includes harm to a child's emotional well-being].) Ricardo has thus failed to meet his burden on appeal to show that the court did not apply the correct legal standard or make any factual findings concerning the detrimental effect of his visitation on Aaron or Manuel. (In re S.C. (2006) 138 Cal.App.4th 396, 408 [appellant has the burden to affirmatively show error].)
D
The Court Did Not Abuse Its Discretion In Suspending Ricardo's Visitation
We reject Ricardo's argument that there was no evidence in the record to show that his conduct had a detrimental effect on Aaron's or Manuel's emotional health. In her six-month status review report, the social worker stated, "The father's continued threatening demeanor, as he yells and questions the children[,] has caused the children to become emotionally unstable and could continue to impact the children in the future should the parents continue to be untreated." The social worker explained that Ricardo was consistently verbally abusive to the children. The fact that the children remained quiet during Ricardo's tirades showed that they were impacted by his manner of communication. The social worker opined that Ricardo lacked any insight into the effect of his violent temper on the children.
The court also found that Ricardo's threats to others posed a substantial risk of detriment to the children. This inference is fully supported by the record. Ricardo's recent threats to cross the border and kill for his children are detrimental to the children for several reasons. As the minors' appellate counsel points out, this statement would terrify any four-year old child. Ricardo made those threats during a supervised telephone call with Aaron, while on speakerphone. The children's first foster care placement had failed in large part due to Ricardo's refusal to abide by visitation rules, which distressed the foster parent and impeded her attempts to establish a routine for the children. The record shows that the change of placement, and the children's subsequent separation from each other, was detrimental to their well-being. Throughout the proceedings, Ricardo was unable or unwilling to modify his behavior during visitation and contact with the children, and refused to participate in any services to help remedy the reasons for the children's continued placement in foster care. His threatening behavior escalated as the proceedings moved toward termination of reunification services. A threat of great physical violence to a child's caregiver, with the means to carry out the threat, implicates the child's safety and physical and emotional well-being, and therefore constitutes a substantial risk of detriment to the child. (See § 300.2 [the purpose of provisions of the dependency code is to provide maximum safety and protection for dependent children].)
In addition, because reunification services had been terminated, the Agency would begin looking for a permanent home for the children. In view of the detrimental effect of Ricardo's past behavior on the children's placement and his escalating threats, the record supports the reasonable inference that his continued visitation and contact with Aaron and Manuel, and any caregivers, might impede Aaron and Manuel's placement in a safe, permanent home, resulting in significant detriment to them by delaying permanency and stability. (See In re Jasmon O. (1994) 8 Cal.4th 398, 420 [the Legislature recognizes the child's interest in a stable, permanent home, the child's need for prompt resolution of his or her custody status, and the damage to a child caused by prolonged temporary placements].) We conclude that the court did not abuse its discretion when it granted Counsel's section 388 petition to suspend visitation between Ricardo and his dependent children.
DISPOSITION
The petition is denied. The request for stay is denied.
/s/_________
AARON, J. WE CONCUR: /s/_________
NARES, Acting P. J. /s/_________
O'ROURKE, J.