Opinion
D073841
06-22-2018
R.N., 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 John P. McCurley for Petitioner, R.N. No appearance by Respondent. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Georgia A. Gebhardt, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CJ1340A, D-G) PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Michael Popkins, Judge. Petition denied. Dependency Legal Services of San Diego and John P. McCurley for Petitioner, R.N. No appearance by Respondent. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Georgia A. Gebhardt, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.
R.N. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26. Specifically, R.N. challenges the court's order suspending his in-person visitation with his minor daughters, Isabelle N. and Veronica N. We deny the petition.
Subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
R.N. is the father of minors Isaac N., Isaiah N., Isabelle and Veronica (minors). The minors were taken into protective custody in November 2016, after the San Diego County Health and Human Services Agency (Agency) investigated a referral alleging the minors and their three older half siblings, D.T., C.V. and A.B., were neglected by their mother, F.T. During the investigation, the Agency confirmed the minors were often left unattended or with relatives for long periods of time, the family's home was filthy, and the minors had suffered multiple untreated lice infestations. Although F.T. denied drug use, she repeatedly missed scheduled drug tests and many witnesses told the Agency's investigators that they suspected F.T. was abusing drugs.
The Agency's investigation also brought to light allegations of sexual abuse of D.T. and A.B. by R.N. At the time that the minors were taken into protective custody, the San Diego County Sherriff's Department was investigating R.N. for the abuse. D.T., who was 14 years old at the time, told a forensic psychologist that R.N. began sexually abusing her when she was 10 years old and that R.N. abused A.B., who was then-11 years old, in front of D.T. In her interview with the forensic psychologist, A.B. also reported being sexually abused by R.N. R.N. denied the allegations of abuse.
After issuing a protective custody warrant for the detention of the minors, at the detention hearing the juvenile court made prima facia findings on the section 300 petitions the Agency had filed on behalf of each minor, and ordered the children detained. The court also issued a temporary restraining order (TRO) prohibiting R.N. from any contact with the minors. By the jurisdiction and disposition hearing, Isaiah (at that time, age six) and Veronica (age three) were placed together in a foster home, and Isabelle (age five), who is deaf, was placed in a separate foster home with a foster mother fluent in American Sign Language (ASL). Isaac, Isiah's twin brother, exhibited behavioral problems that required medical intervention and remained placed at the Polinsky Children's Center. The Agency anticipated Isaac would be placed with the same foster family as Isaiah and Veronica once his behavior stabilized.
At the jurisdiction and disposition hearing, the court extended the TRO and continued the hearing to January 12, 2017. At that hearing, the court modified the TRO to allow R.N. to have "brief and peaceful contact" with the minors as scheduled through the social worker, and again continued the hearing to the following week. R.N. visited the children a few days later and was appropriate during the hour-long visit. At the final jurisdiction and disposition hearing, the juvenile court declared the minors dependents, removed them from their parents' care, and ordered reunification services for F.T. and R.N. R.N.'s services included parenting classes and sex offender treatment. During the hearing, the court, the Agency, and the minors' counsel agreed that R.N. could continue supervised visitation with the minors and the court dismissed the TRO.
On March 23, 2017, the San Diego County District Attorney charged R.N. with nine counts of felony sex abuse perpetrated against D.T. and A.B., and a 10th felony charge of child abuse perpetrated against C.V., the minors' 13-year-old half brother. R.N. was arrested and taken into custody on March 28, 2017. Prior to his arrest, R.N. was participating in parenting classes regularly. He was also attending a sex offender group therapy program, but denied any wrongdoing and refused to discuss the charges against him. Until his arrest, R.N. had visited the minors consistently each Sunday. After the arrest, the Agency offered to facilitate visits at jail, but R.N. declined because he did not want the minors to see him there.
At the six-month review hearing in July 2017, the court found that returning the minors to their parents' custody would create a substantial risk of detriment and continued the minors' placements with their foster families. The court continued reunification services for both parents and, at R.N.'s request, ordered the Agency to facilitate phone contact between R.N. and the minors. In its report for the review hearing, the Agency reported that Isabelle and Veronica, who had both exhibited behavioral and emotional difficulties at the outset of the dependency, were in therapy and their behavior was improving in their placements. Isabelle was learning ASL and as her language skills improved, her behavioral issues also subsided.
F.T. did not participate regularly in reunification services or visit with the minors during the first six-month review period. She also admitted she was continuing to abuse drugs and alcohol.
By this point, Isaac was placed with a maternal aunt and Isaiah and Veronica continued their placement in foster care together. Shortly after Isabelle was placed with her initial foster mother, the foster mother became overwhelmed by Isabelle's behavioral difficulties and Isabelle was placed with a nonrelated extended family member who was her teacher's aide in school and also fluent in ASL. --------
The Agency provided R.N. with a phone code to call the minors from jail. However, because of technical problems, he was unable to make calls from August to October. R.N. was transferred to a different jail in October and successfully called Isaiah, Veronica, and Isabelle from jail. R.N. also requested visitation with the minors and on November 11, 2017, had a supervised visit with Isaiah and Veronica at the jail. R.N. was behind a glass partition and could communicate with the children only over a telephone. Veronica was not well-behaved during the visit, running wildly in the visitation area and continually interrupting R.N.'s conversation with Isaiah. The social worker who facilitated the visit reported that Isaiah became upset and tearful when the visit ended. On November 20, 2017, R.N. had a supervised visit with Isaac and Isabelle at the jail that went reasonably well, although Isabelle required constant redirecting not to be disruptive and her foster mother reported that Isabelle's behavior regressed significantly after the visit.
After the two visits, R.N. sent a letter to the family's social worker requesting more frequent visitation with the minors. On December 19, 2017, Isaiah and Veronica visited R.N. at the jail and Veronica's behavior was difficult. She was not willing or able to engage with R.N and disrupted Isaiah's communication with his father. After the visit, the social worker told R.N. that she would not bring Veronica back to the jail for visitation and R.N. indicated he understood. Thereafter, the court-appointed special advocate (CASA) for Veronica reported that her behavioral problems seemed to be triggered by her visits with R.N.
On February 21, 2018, R.N. had a supervised visit with Isaac and Isaiah. Isaiah told the social worker he did not like missing school to see R.N. and did not like visiting the jail. Isaac also expressed dissatisfaction at having to visit R.N. in jail. In the Agency's report for the 12-month review hearing, the family's social worker reported that when the possibility of visitation with R.N. was discussed with them, Veronica and Isabelle became distressed and acted out. Veronica in particular became extremely agitated when the social worker arrived to take her to the jail, and before the last attempted visit refused to let go of her foster father and hid behind him. The social worker concluded the report by noting the girls were not comfortable continuing visits at the jail, but that the Agency would continue to assess the situation. The Agency continued to facilitate phone calls between R.N. and the minors.
At the 12-month review hearing on April 3, 2018, the Agency recommended terminating reunification services for both parents and setting a section 366.26 permanency planning hearing. The Agency also recommended terminating R.N.'s in-person visitation with Veronica and Isabelle. The minors' counsel joined in that recommendation. In response, R.N.'s counsel asserted he was not provided with adequate notice of the agency's recommendation to terminate visitation and argued that there was no evidence the visits were detrimental to the minors. R.N.'s counsel also argued terminating visitation with Isabelle would amount to a no-contact order because of her hearing disability.
In ruling on the issue of visitation, the court stated that it was "suspending temporarily the in-custody visits [for R.N.], not terminating them, but suspending them for a period of time for the two girls." The court added that it did not think it was "in [the minors'] best interests to be visiting dad in the detention facility" and noted that it could reassess the visitation issue after R.N.'s criminal trial, which was scheduled for July. The court terminated services for the parents and set the permanency planning hearing for August 1, 2018.
DISCUSSION
R.N. asserts that in suspending his visitation with Isabelle and Veronica the juvenile court applied the incorrect standard and, therefore, the order must be reversed. He asserts that under section 366.21, subdivision (h), the court was required to continue visitation pending the permanency planning hearing unless it found that "visitation would be detrimental to the child." (§ 366.21, subd. (h).) The Agency concedes the court erred by failing to expressly state whether the suspension of visitation was detrimental to Isabelle and Veronica, but asserts the error is harmless because substantial evidence supports a detriment finding and, thus, there is no prejudice to R.N.
I
Under section 366.21, subdivision (h), if the court sets a permanency planning hearing under section 366.26, the juvenile "court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child." Under this provision, "the juvenile court was required to permit continued visitation pending the section 366.26 hearing absent a finding visitation would be detrimental to the minors." (In re David D. (1994) 28 Cal.App.4th 941, 954, italics omitted.)
Under the detriment standard, the court must weigh the "relevant factors to determine if the child will suffer net harm." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.) In contrast, under a best interest standard, the court decides whether visitation is a better option for the minor. While the result under either standard could be the same in some cases, the detriment standard is more stringent and potentially more favorable to a parent wishing to preserve his visitation rights. (See In re Zacharia D. (1993) 6 Cal.4th 435, 455 [The " 'substantial risk of detriment' standard is arguably more stringent than the 'best interests of the child' standard . . . ."].)
Whether or not the juvenile court applied the correct legal standard is an issue of law this court reviews de novo. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) However, we "apply a deferential standard of review to the court's exercise of discretion and resolution of disputed facts." (In re V.F. (2007) 157 Cal.App.4th 962, 968.)
II
We agree with the parties that the juvenile court erred by failing to expressly find that continued visitation with R.N. would be detrimental to Isabelle and Veronica. However, we agree with the Agency that this error was not prejudicial to R.N. The evidence established suspension of R.N.'s visitation was appropriate to prevent detriment to the young girls. "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." (In re S.H. (2003) 111 Cal.App.4th 310, 317.) "To sustain this 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.)
In the court's evaluation of the impact of limiting or suspending visitation, "the parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation." (In re S.H., supra, 111 Cal.App.4th at p. 317.) In its determination, the juvenile court "may appropriately rely upon an evaluation by treating therapists of the children's emotional condition and evolving needs." (In re Julie M. (1999) 69 Cal.App.4th 41, 51.)
Here, ample evidence of detriment to Isabelle and Veronica supports the juvenile court's decision to suspend visitation with R.N. after reunification services were terminated and while R.N. awaited the outcome of his criminal sexual abuse trial. Both children had strong, negative reactions to visitation in the jail. Veronica told her social worker that she did not want to visit R.N. and cried and hid when the time came for a visit. Isabelle also indicated she was fearful of visiting R.N. in jail and cried at the thought of doing so. In addition, during the visits both minors' ability to communicate with R.N. was hampered by their uncontrolled and inappropriate behavior.
Importantly, after their visits with R.N., the girls' behavior at home also regressed significantly. Isabelle's foster mother reported that after her visit with R.N., Isabelle's behavior returned to what it had been when she was first placed in her home. Similarly, Veronica's foster father reported that after her visit with R.N. she began pushing and spitting on her brother and cried at the thought of going to the jail. The social worker told Veronica's foster family she would suspend the difficult visits. The social worker also discussed suspending the visits with R.N. himself, who indicated he understood. In sum, both minors entered foster care with significant behavioral challenges that were reignited or exacerbated by their visits with R.N.
These facts support a finding that continued visitation with R.N. was detrimental to Isabelle and Veronica. (See In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357-1358 [affirming juvenile court's order limiting visitation based on minors' discomfort and refusal to visit, and the recommendation of the minors' therapist]; see also In re Andrea G. (1990) 221 Cal.App.3d 547, 554 [implying finding where record clearly showed no substantial probability of returning minor to parents care within statutory time frame].) Although the juvenile court erred by referring to a best interest standard with respect to its temporary visitation order rather than finding detriment to the minors, on this record we cannot say the error was prejudicial. Reversal of the order suspending R.N.'s visitation is not warranted.
DISPOSITION
The petition is denied.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.