Opinion
E067602
09-14-2017
In re T.W., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. P.B., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. INJ1400067) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
P.B. is the father (father) of T.W., who was just under three years old on the date of the challenged order. Father appeals from the visitation order made at the jurisdiction and disposition hearing held on January 18, 2017. Father argues the juvenile court abused its discretion when it reduced his visitation from twice weekly to once a month and refused to allow father's adult daughter, Patricia, to supervise father's visitation. We conclude this was a reasonable order to make after denying father reunification services and so affirm the order.
FACTS AND PROCEDURE
The Previous Dependency—February to October 2014
T.W. was detained from the hospital after being born at 33 weeks gestation because of her mother's untreated high blood pressure and lack of prenatal care. T.W. tested positive for cocaine. Mother was living with, but not married to, father, who uses a motorized wheelchair after falling off a roof and being struck by a car several years prior to T.W.'s birth. Father collected about $800 monthly in disability payments and mother did not work. They lived together in a hotel room. Father was not present for T.W.'s birth and did not sign her birth certificate. When interviewed at their hotel room, father was "vague and short" in his responses. He did not seem concerned that his daughter had tested positive for cocaine or that the Department of Public Social Services (DPSS) was involved. Father had an extensive record of drug and other offenses, including a 1998 conviction for robbery and kidnapping for which he had served over eight years in prison, a 2007 conviction for burglary, and convictions in 2012 to 2014 for prowling on private property, trespassing, intimidating a business operation, disorderly conduct, and battery. Father was known to local police as a transient and aggressive panhandler, with a history of blocking cars into parking spaces with his motorized wheelchair while asking for money and becoming belligerent when the drivers did not give him money. When T.W. was released from the hospital, she was placed with maternal relatives.
Mother is not a party in this appeal.
A DNA test determined that father was T.W.'s father. The court authorized father to visit with T.W. at the DPSS office for one hour, twice a week. The social worker commented that father did not appear comfortable handling T.W. and needed "quite a bit" of help to care for her. In February and March 2014, Father missed about half of his visits, declined a two-hour makeup visit because he said one hour was enough, and ended one visit after a half-hour, stating that an hour visit was too long for him.
At the jurisdiction and disposition hearing held on April 18, 2014, the court declared T.W. a dependent child. The court removed custody from the parents, but authorized DPSS to place T.W. with mother on family maintenance. The court offered both parents reunification services and ordered DPSS to refer father to daytime parenting classes because nighttime parenting classes were difficult for him to get to.
In April 2014, father refused to complete his case plan, including a parenting class, and stated he wanted to visit with T.W., but not reunify. In May, T.W. was placed with mother on family maintenance. Mother was living with T.W.'s godparents and their four children. During that time, father was authorized to have a supervised visit with T.W. for one hour, twice a week, but he cancelled as often as one visit nearly each week. Father did not take a parenting class, and it showed. For example, at times, father tried to feed the infant chips and soda instead of her bottle, he would not check her diaper regularly, and he had difficulty changing her diaper, almost dropping her on one occasion. Father often brought his adult daughter, Patricia, with him to visits. At these visits, Patricia interacted with T.W. more than father did. Father was attentive sometimes—he enjoyed visiting with T.W. and having her ride with him in his motorized wheelchair. Father sometimes had negative interactions with mother during the visits. DPSS recommended, "[d]ue to [father]'s refusal for services, [DPSS] can only limit his interactions with [T.W.] in order to keep her safe."
At the six-month review hearing held on October 17, 2014, the court terminated the dependency, granted mother sole physical and legal custody, and granted father reasonable visitation supervised by mother or an agreed-upon third party.
The Current Dependency—2016 to 2017
Two years later, on November 9, 2016, DPSS filed a petition under Welfare and Institutions Code section 300, alleging under subdivision (b), failure to protect, that mother suffered from a mental illness, including hallucinations and paranoid and bizarre behaviors, father failed to provide for T.W. and had a history of substance abuse, and both parents failed to benefit from the services offered in the previous dependency. DPSS also alleged under subdivision (g), no provision for support, that father failed to provide care and support for T.W. DPSS had received several referrals in October and November regarding mother's bizarre behavior. However, when interviewed, she would present herself as rational, her home was clean, and T.W. appeared healthy and happy. During one of these interviews, mother refused to provide any information about father and stated he had not had contact with T.W. On November 7, deputies were called to mother's apartment because she was heard to be screaming. Mother was placed on a "5150 hold," and T.W. was taken into custody. T.W.'s godfather told the social worker that he believed mother was using illegal drugs again. He also stated that father does not provide for T.W., and that mother often asks the godparents for financial assistance, food, clothes, diapers, etc. A sheriff's deputy told the social worker that during previous law enforcement contacts, mother stated that father was not involved in T.W.'s life and did not have contact with T.W.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
"The term '5150 hold' derives from section 5150. Section 5150, subdivision (a) applies when a person is a danger to him- or herself or is gravely disabled because of a mental health disorder. Certain professionals 'may, upon probable cause, take, or cause to be taken, the [endangered] person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention.' (§ 5150, subd. (a).)" (Fenimore v. Regents of Univ. of Cal. (2016) 245 Cal.App.4th 1339, 1343 fn. 3.)
During a telephone call between father and the social worker, father expressed anger that he had not been contacted earlier. He stated he would see T.W. once or twice a week, but had not noticed anything wrong with mother. Father was uncooperative, stated he did not have anything to say, and said he would see the social worker in court the next day.
Since the prior dependency, father had been charged with unlawful solicitation without a permit. In the detention report, DPSS recommended twice weekly supervised visits for mother, but no visits for father until he appeared in court or to DPSS.
At the detention hearing scheduled for November 10, 2016, both mother and father were present, as were father's two adult daughters. Father asked that Patricia be assessed for placement. The court ordered DPSS to assess Patricia and authorized the parents to have supervised visits with T.W. for one hour, twice a week. The court set the contested detention hearing for November 15.
Both parents and the two adult half-sisters were present for the contested detention hearing on November 15, 2016. Father had declined to visit with T.W. that week and the previous week. On cross-examination, mother denied telling the social worker or a sheriff's deputy that father did not have a relationship with T.W. However, she also denied that father visited with T.W. once or twice a week, as father had claimed. She testified that father saw T.W. "[o]nce every few months." Mother stated that father "used to" provide her with support for T.W., but said, "it's kind of sketchy depending on what's going on in his life at the time. [¶] . . . [¶] He does help a little when he can." Mother stated, "Yes," when asked if she would be comfortable having T.W. placed with Patricia. The court ordered T.W. detained and authorized visits with father's adult daughters. Visits were to be increased and liberalized, as appropriate, if and when T.W. were to be placed with relatives.
In the jurisdiction and disposition report prepared on December 2, 2016, the social worker reported that she had interviewed mother on November 29, 2016. Mother stated she had separated from father in 2014, during the first dependency, so she could pursue a drug-free life and obtain a stable home for T.W. She stated father used rock cocaine daily and panhandled to support his habit. She stated father was controlling and violent during their relationship, and he repeatedly abused her both verbally and physically. Mother was ashamed of her relationship with father, which centered around the couple using drugs together, provided by father, and so she hid the pregnancy from her family. Mother reported father would not allow her to go out, and that he controlled her, their finances, and the drugs they used. Mother lost contact with father after they separated in 2014, and he failed to provide support for T.W. Father refused several offers to speak or meet with the social worker regarding T.W., and he did not show up for a scheduled appointment. T.W. had been placed with her godparents, in the home where mother and T.W. had previously lived. Father visited with T.W. on December 2. He brought along his two adult daughters and his ex-wife. Father engaged positively and played with T.W. throughout the visit.
At the jurisdiction and disposition hearing set for December 8, 2016, father was present with his adult daughter, Patricia. Mother was not present, as she was on a section 5150 hold. The matter was set contested for January 18, 2017.
In the addendum report prepared on January 18, 2017, DPSS recommended mother be offered reunification services, but that father be denied services pursuant to section 361.5, subdivision (b)(12), conviction of a violent felony, because he had a felony conviction for kidnapping. DPSS was having to engage in an extensive exemption process in order for T.W. to be placed with her half-sister, Patricia, because "a member" of Patricia's household had "a voluminous referral history" with DPSS. T.W. would remain with her godparents until Patricia could be approved. Father visited with T.W. on January 10, 2017. Father played well with T.W., but had to be reminded not to use foul language. Father missed the visits scheduled for January 3 and 12. Patricia attended all three visits in January, and told the social worker on January 3 that father could not travel in the rain and on January 12 that father was ill.
The contested jurisdiction and disposition hearing was held on January 18, 2017. Both parents and father's two adult daughters were present. Father asked that Patricia be granted unsupervised visits with T.W. and that he be allowed to visit with T.W. under Patricia's supervision. T.W.'s counsel asked that father's visits be supervised by DPSS, not by Patricia, but did not object to Patricia having unsupervised visits, as long as father was not present. The court denied reunification services to father and decreased his visits to one hour a month, supervised by DPSS. The court authorized DPSS to increase his visits to twice a month if father was doing better and submitted a request. The court authorized Patricia to have unsupervised visits with the child for at least two hours, once a week, with longer visits if they could be arranged. Patricia was to obtain DPSS approval before bringing other people to the visits.
This appeal followed.
DISCUSSION
Father contends the court acted arbitrarily when it reduced his visitation with T.W. and refused to allow Patricia to supervise his visits.
"[W]henever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the . . . statutorily presumed father . . . ." (§ 361.5, subd. (a).) An order placing a child in foster care and ordering reunification services shall provide for visitation between the parent and child consistent with the well-being of the child. (§ 362.1.) Visitation is a key element of reunification. (See In re Julie M. (1999) 69 Cal.App.4th 41, 50.)
However, once reunification services are terminated or denied, the focus of the dependency is on the child's interest in securing a safe and stable permanent home. (In re Stephanie M. (1994) 7 Cal.4th 295, 317) Under section 361.5, subdivision (f), if the court does not order reunification services, "[t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." (In re J.N. (2006) 138 Cal.App.4th 450, 457.) During the reunification period, visitation is mandatory absent exceptional circumstances. (§ 362.1, subd. (a)(1)(A); In re C.C. (2009) 172 Cal.App.4th 1481, 1491.) After reunification services have been terminated, visitation is still mandatory absent a finding of detriment. (§ 366.22, subd. (a) ["The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child."]; In re D.B. (2013) 217 Cal.App.4th 1080, 1094-1095.)
By contrast, where no reunification services have been ordered at all, as in this case, visitation is discretionary, not mandatory. Where reunification services are denied, visitation is governed by subdivision (f) of section 361.5, which provides: "The court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." (Italics added.) In In re J.N. (2006) 138 Cal.App.4th 450, 458, the court explained that the permissive language in section 361.5, subdivision (f), reflects the reality that "visitation is not integral to the overall plan when the parent is not participating in the reunification efforts." (In re J.N., supra, 138 Cal.App.4th at pp. 458-459.)
"An order setting visitation terms is generally reviewed for abuse of discretion. [Citation.]" (Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.) " ' "[A] reviewing court will not disturb that decision unless the trial 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, 318-319.)
Here, father contends the court's decision to reduce his visits was arbitrary because it did not actually exercise its discretion or consider T.W.'s best interest or the individual circumstances of this case. In doing so, father cites selectively from a long discussion between himself and the court at the jurisdiction and disposition hearing held on January 18, 2017. First, father accused the court of reducing his visits "because of my handicap." The court replied, "Certainly not." Father replied, "Apparently that's what it is." The court then made the statement to which father objects in his opening brief: "In every case where parents' rights to reunify with their child has been limited by this court, the standard visitation order is one time per month." The court made this statement to show that it was not treating father differently because of his handicap; this does not mean the court failed to exercise its discretion or consider T.W.'s individual circumstances.
Second, father mischaracterizes the court's statement, "That's just the law. I can't rewrite the law," as an attempt to explain why the court set father's visits at once a month. This is misleading. The court was answering father's question as to why his felony conviction for kidnapping allowed the court to "bypass" him for reunification services. It is in fact "just the law" under section 361.5, subdivision (b)(12), that "[r]eunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence . . . [¶] . . . [¶] [t]hat the parent or guardian of the child has been convicted of a violent felony . . . ." A further indication that the court considered the individual facts of T.W.'s case is that it authorized DPSS to increase father's visits to twice a month if he was doing better and submitted a request.
Finally, father argues the court acted arbitrarily and capriciously when it declined to allow Patricia to supervise his visits with T.W., despite the court allowing Patricia her own unsupervised visits and despite previously allowing father and Patricia to have their supervised visits together. The court acted within its discretion, for the following reasons: First, the child's attorney objected to father's request to have Patricia supervise his visits, given "the circumstances and the reasons for the denial in this case." These reasons, as listed in the DPSS report for the January 18, 2017 hearing, might make it difficult for DPSS professionals to supervise father's visits, much less his own daughter. The reasons why the court denied father reunification services include (1) father had been convicted of kidnapping, (2) he had a violent past according to mother's description of her time living with him, (3) he did not complete services during T.W.'s first dependency, (4) he continued to live a transient lifestyle, which included criminal acts and regular drug abuse, and (5) he had previously failed to regularly support T.W. or participate in her life. Further, father had to be reminded not to use foul language during his last supervised visit with T.W., and he had never attended any parenting classes. Second, the court prohibited Patricia, in general, from including other people in her unsupervised visits with T.W., without obtaining prior approval from a DPSS supervisor.
Finally, the court did not abuse its discretion when it reduced father's visits with T.W. because, during the course of both dependencies, he regularly failed to attend the visits the court had authorize. For example, he missed two of the three visits in January 2017, and about half of his visits during the previous dependency. At the age of three, it is foreseeable that T.W. could be harmed by such inconsistent visitation.
Father has not carried his burden to show the juvenile court abused its discretion in making its visitation orders.
DISPOSITION
The court's visitation orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.