Opinion
E074028
04-28-2020
In re A.W., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.J., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J278872) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant M.J. (Mother) is the mother of 10-year-old A.W. A.W. and his half siblings were removed from Mother's care due to physical abuse, substance abuse, domestic violence, and a history with child protective services. The juvenile court placed A.W. with his father M.W. (Father) and denied Mother visitation with A.W. On appeal, Mother argues the juvenile court erred in denying her visitation with A.W. because there was insufficient evidence to show her visits with A.W. were detrimental. We find no error and affirm the judgment.
Mother also has three other children: eight-year-old E.D.J., three-year-old F.B., and one-year-old M.B. These children, A.W.'s half siblings, are not subjects to this appeal.
Father is not a party to this appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) on November 30, 2018, when a referral was received alleging physical abuse to A.W. A.W. was observed with "a significant injury to his genitalia area that appeared to be caused by a blunt object."
A social worker met with A.W. and his half sibling E.D.J. at school. A.W. disclosed that Mother and her live-in boyfriend F.B. hit him with a belt because he was bad and deserved to be hit. A.W. also disclosed that he had witnessed F.B. and Mother engage in domestic violence where F.B. choked Mother. A.W. was worried about Mother's safety as she was pregnant. A.W. admitted to having a bruise on his inner thigh near his genitals. A.W.'s half sibling E.D.J. corroborated A.W.'s statements and added that Mother and F.B. hit him and his brother "all of the time with a belt." E.D.J. disclosed domestic violence between Mother and F.B., with the most recent episode occurring on November 29, 2018. He also disclosed that Mother and F.B. were using marijuana. E.D.J. wished that F.B. did not reside with them because he was "'psycho and crazy'" and did not care about the children.
F.B. later disclosed that he had married Mother.
Mother denied F.B. had hit A.W. and claimed A.W. was hit by his brother E.D.J. Mother also denied hitting the children and stated for discipline the children are sent to a corner and/or their bedroom. Mother further denied domestic violence between her and F.B. and substance abuse. Mother stated that the children were "'liars'" and believed A.W. was bad and needed to be in juvenile hall. F.B. denied hitting A.W. and claimed E.D.J. had hit A.W. with a belt. He stated the children did not like him and that they would say anything to get him out of the home. F.B. also denied domestic violence and substance abuse in the home.
Further investigation revealed that Mother had a child welfare history and that the children had previously been removed from Mother's care for physical abuse. Mother's first dependency took place from December 2014 until November 2016 due to domestic violence, substance abuse, mental health issues, and the criminal history of her husband at that time. Mother received reunification services and the children were returned to her custody around September 21, 2016. Mother's second dependency began in April 2017 until June 2018 due to domestic violence between Mother and F.B. Mother received reunification services and, ultimately, the matter was dismissed with family law custody orders granting custody to Mother. F.B. had a history of arrests for child endangerment in May 2014 and November 2017 and assault with a deadly weapon in April 2017. On December 4, 2018, a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling) was filed on A.W.'s behalf.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Based on Mother's lack of protective capacity and the prior removals for similar reasons, CFS sought a warrant of protective custody. When law enforcement attempted to serve Mother with the warrant, CFS was unable to locate Mother and the children. CFS recommended that the children be detained when located.
The detention hearing was held on December 5, 2018. Mother was present and submitted on the temporary detention. The juvenile court ordered supervised visits for Mother once a week for two hours and granted unsupervised visits for Father. Mother was also provided with services pending the jurisdictional/ dispositional hearing. The court granted CFS authority to place A.W. with his father if appropriate.
On January 8, 2019, CFS filed a first amended section 300 petition, dismissing the section 300, subdivision (g) allegation against Father.
By January 9, 2019, A.W. had been placed in his father's custody, a previously noncustodial parent. A.W. was doing well in his father's home, and stated living with Father was "perfect." Father did not use physical discipline on A.W., and instead sent A.W. to a corner as a form of discipline. CFS recommended that the juvenile court find the allegations in the first amended petition true, maintain A.W. in Father's custody under family maintenance services, and offer reunification services to Mother.
The social worker explained that Mother had excessively disciplined A.W. with a blunt object, which caused a significant nonaccidental injury to A.W.'s genital area. The injury formed circular, red bruising. The medical examination conducted at the Children's Assessment Center (CAC) detailed A.W.'s injury as a "4cm x 2.5cm rectangular scar with 2 circular scars within in it on [A.W.'s] left groin." A.W. stated that the injury was caused from being struck with the metal part of a belt. The medical examiner found the explanation consistent with the injury.
A.W. was also found with three "0.5cm-lcm linear scars on his right upper arm," which were of a concerning origin as grab marks. The medical examiner also noted numerous scars on A.W.'s face which were "unusual for a child his age." Other scars, abrasions, and bruises on A.W.'s neck, back, arms, and legs were nonspecific and could have been caused intentionally or accidentally. When asked about the disciplinary methods at home, A.W. reported getting "'socked in the chest'" by F.B. Other instances included being hit with the "metal buckle" part of F.B.'s belt or getting his hair cut bald. A.W. also described witnessing an incident where F.B. choked Mother, threw a napkin holder at her, and attempted to run her over with his car. In response, Mother cut F.B.'s arm with a glass bottle. The CAC examiner concluded that A.W.'s injuries were consistent with physical abuse and that the exposure to domestic violence constituted neglect. Furthermore, the medical examiner opined that A.W.'s short stature and low weight were concern for prior nutritional neglect.
A.W. later changed his statements and denied Mother or F.B. had hit him. He asserted that his mother "lov[ed] [him] too much to do that." He also added, "'If I snitch on my mom, I get bruises, but that has never happened.'" A.W. explained that Mother had threatened him with bruises for "'[s]nitching,'" but never acted on the threat. A.W. further stated that F.B. had "sock[ed]" him in the chest but "'[i]t didn't hurt.'" A.W. noted that he was previously sent to foster care after F.B. "'threw a toaster at [his] brother,'" but denied anything like that ever occurring again. A.W. denied that F.B. had ever hit him with a belt and did not know why he had disclosed that information to the detention social worker. He also denied domestic violence between Mother and F.B., claiming they got along "'[p]erfectly.'" A.W. further denied substance abuse in the home. A.W.'s half brother E.D.J. also denied his previous statements to the detention social worker and claimed that neither he nor A.W. were hit with a belt and that there was no substance abuse in the home.
CFS was concerned that Mother had coached the children and requested Mother's contact, specifically her telephone communication with A.W., be suspended. The juvenile court granted CFS's request on January 9, 2019.
On January 17, 2019, A.W. participated in a forensic interview at CAC. A.W. was initially talkative and friendly but became guarded when asked about the physical abuse in the home. A.W. denied any physical abuse. However, when shown a photograph of the injury to his groin and of the belt with which he had been hit, A.W.'s demeanor immediately changed. A.W. did not wish to speak about the incident, noting it had already "'been handled.'" A.W. confirmed that he was pictured in the photograph with the injury and explained that F.B. had hit him while he was mad "'on accident.'"
F.B. later informed CFS that he had spanked A.W. after witnessing A.W. committing a sexual assault on his brother. CFS was concerned that Mother had never reported the incident to law enforcement or sought therapeutic treatment for the children. This referral remained under CFS investigation. However, several days later, F.B. admitted he had made up the story of sexual abuse and acknowledged that he had hit A.W. with a belt because A.W. had drawn in F.B.'s masonry book.
The social worker described a visit between A.W. and Mother in which A.W. was seen leaving the visitation room visibly upset. Mother was also observed leaving the visit crying. A.W. stated that he wanted to be with his father and did not want to complete the visit with Mother. He also wanted to leave and walk home. A.W. did not explain what had occurred to cause him to be so upset. Mother explained that she did not want to give A.W. a phone to play on and A.W. told her he "'hated [her].'" Mother also stated that A.W. had been prescribed medication for attention deficit hyperactive disorder (ADHD) and mood disorder, but that Father did not administer the medication regularly. Overall, CFS noted no further concerns about visitations between Mother and A.W.
Contrary to Mother's claims, A.W.'s behavior steadily improved when placed in his father's care. In addition, A.W. was evaluated by the San Bernardino County Department of Behavioral Health and underwent a Healthy Homes Assessment in which no mental health concerns were noted.
CFS was concerned that Mother had declined to accept any responsibility for the actions leading to A.W.'s third removal, despite Mother having previously received and participated in reunification services. CFS believed Mother's prognosis for reunification was "extremely guarded," given Mother had minimized CFS's concerns.
Accordingly, by March 12, 2019, CFS changed its recommendation to no reunification services to Mother based on A.W.'s reabuse. CFS continued to recommend family maintenance services for Father. CFS detailed an incident that took place on January 28, 2019, in which Father contacted the social worker upset to report Mother had appeared at A.W.'s school and picked him up. A.W. confirmed Mother had appeared at his school earlier that day. When confronted, Mother explained that she did not know it was A.W.'s school when she drove down the street and "'happened to see [A.W.]'" Mother stated she just wanted to say "hello" to the child. The social worker reminded Mother that it was a violation of the court order to contact A.W. outside CFS supervision and weekly visits. Contrary to Mother's explanation, the school staff informed the social worker that Mother had circled several times around the school attempting to make contact with A.W. and trying to talk to him during recess. The social worker advised the school that Mother was not allowed to contact A.W. at school and to pick him up.
While in his father's home, A.W. began to disclose his experiences living with Mother and F.B. A.W. confirmed that F.B. had socked "'him up'" in the chest, made him perform pushups, and choked him once. A.W. believed that F.B. did not like him because A.W. was "'not his kid.'" A.W. also disclosed that during his visitation with Mother, she whispered to him that he needed to misbehave in his father's care in order to be able to live with her. This destructive advice caused A.W. to get into trouble in his home for having an attitude and at school for using profanity, bullying, and messing with other students' homework assignments. Father and his live-in girlfriend also reported that A.W. came back from visits with Mother displaying hard to manage behaviors. The social worker noted that Mother used her visitation time to negatively affect A.W. and his placement.
At a hearing on March 12, 2019, the juvenile court admonished Mother regarding the violations of the court's visitation orders. The court also informed Mother that if she continued to violate the court's orders, the court would give authority to suspend any future visits between her and the children.
CFS continued to express concern that Mother had not been benefiting from the services provided despite her participation. For example, Mother was resistant to accepting responsibility for the behaviors and reasons which necessitated CFS's involvement for the third time. The social worker believed Mother "seem[ed] to struggle with obtaining benefit and insight from the provided services." Mother, however, reported to have taken responsibility for the reasons that led to CFS involvement. Nonetheless, at the same time Mother accused then nine-year-old A.W. of "'lying on [her]'" at school. Mother continued to consistently visit A.W., but her visits were "moderate in quality as there were concerns regarding inappropriate conversation between [] [M]other and [A.W.]" In addition, the older children spent most of the visit on a phone. Meanwhile, A.W. appeared to do well in his father's home. A.W.'s behaviors stabilized, he improved his academic performance, and he received several positive reports from school.
Additionally, on May 23, 2019, CFS received a referral alleging general neglect by Mother and sexual abuse identifying A.W. as a perpetrator of abuse of his younger brother E.D.J. A.W. stated that when Mother learned of the child's attempts to sodomize and to orally copulate his younger brother, Mother called the children "'f--- faggots.'" CFS requested time to investigate the allegations and to arrange for CAC forensic interviews. Ultimately, allegations of sexual abuse were inconclusive, and allegations of general neglect against Mother were substantiated.
At the CAC interviews, A.W. and E.D.J. made various disclosures regarding Mother's violent relationship with F.B., physical abuse, sexual abuse by known and unknown perpetrators, and exposure to inappropriate sexual relations such as witnessing Mother and F.B. having sexual intercourse on a living room couch while the children were present.
At a May 29, 2019 hearing, CFS's counsel requested to suspend Mother's visitation prior to the CAC interviews because Mother "[was] continuing to coach the minors." The juvenile court denied the request. However, the court granted CFS authority to terminate the visits if Mother whispered anything to the children. The court explained, "I'm not inclined to discontinue the visits prior to CACs; however, that would be something, again, the Department would have immediate authority to suspend all visits if there is any coaching."
A.W. continued to do well physically and emotionally well in his father's custody. A.W. reported that Father disciplined him by taking away his privileges, such as playing with the phone or playing video games. A.W. also stated that he was comfortable in his father's home and was excited about the upcoming trip to the beach with the family. The social worker noted concerns about the past trauma A.W. had experienced and its future effects and recommended A.W. engage in preventative therapeutic services. Father opposed therapy, arguing A.W. would overcome the trauma with his and his girlfriend's help and noted A.W.'s improved behavior. Father expressed hope that A.W. would start living a normal childhood without CFS constantly being present in his life.
Mother, on the other hand, believed that A.W. was not happy living with his father, but she also knew that A.W. did not want to go into foster care. Mother also believed that Father and his significant other were influencing A.W. She stated: "'I don't know if it's [Father's girlfriend] or her kids "punking" [A.W.], but I know one of them is "punking" him.'" Mother also believed that Father and his girlfriend needed to submit to regular drug tests because "'they [were] up to no good.'"
The social worker noted that Mother regularly participated in visits with the children, completed her pre-dispositional case plan, and participated in some additional services. Notwithstanding, CFS had concerns regarding Mother's "ongoing pattern of manipulation and failure to demonstrate protective capacity" as Mother continued to deny the allegations disclosed by A.W. and his brother E.D.J.
On August 2, 2019, CFS, in conjunction with Mother, F.B. and Father, held a Child Family Team Meeting (CFTM). Mother appeared depressed and angry. She blamed the current caregivers for the most recent allegations relating to sexual abuse. F.B. appeared aggressive, threatening, and required frequent redirection from the CFTM coach. The social worker was concerned that the children experienced traumatic memories because E.D.J. vomited after his visits with Mother and requested to skip visits with Mother "'[b]ecause when I go to the visits I get bad memories.'"
On August 6, 2019, a second amended petition was filed, adding A.W. was exposed to inappropriate sexual activity by Mother pursuant to section 300, subdivision (d) (sexual abuse).
CFS continued to recommend no reunification services for Mother. The social worker believed that pre-dispositional services already provided to Mother exhausted the services available to minimize the risk to the children. The social worker noted that Mother continued to engage in deceitful, manipulative, and intimidating behaviors, which, in turn, demonstrated that Mother was able to go through the motions of participating in services but failed to benefit from them.
A supervised visit observation report for a visit that occurred on July 30, 2019, between Mother and A.W. noted that Mother rarely demonstrated an ability to recognize A.W.'s behaviors and cues and to respond appropriately. Mother rarely identified the child's physical and emotional needs and she rarely responded adequately to A.W.'s needs. Mother sometimes demonstrated acts of protection and supporting behaviors toward A.W. CFS was concerned that Mother would continue to use excessive discipline on her children and that one of the children would be seriously injured as a result. CFS also indicated that it had been reported that Mother had been coaching A.W. during visits.
At a hearing held on August 7, 2019, CFS's counsel expressed concerns regarding the ongoing issues with Mother's visitation and requested for the visits to occur in a therapeutic setting. The juvenile court granted the request.
Because visits in a therapeutic setting was not a service provided by the contracting agency, CFS recommended Mother and A.W. to engage in family therapy and to resume supervised visits. In detailing a visit that took place on August 6, 2019, the social worker opined that Mother continued to "struggle[] with appropriate parenting and often tri[ed] to negotiate with the children by offering them treats or, as in this visit, money" when she was unable to console A.W. The social worker pointed out that Mother had taken two parenting classes in addition to the parenting classes she had received during the two prior dependencies, yet she was unable to show benefit from the parenting classes.
During a visit on October 1, 2019, Mother became upset when she was told she would have supervised interaction with A.W. at all times. The supervising aid believed Mother was looking for a break between therapy sessions and the visits in order to have unsupervised time with A.W.
On October 2, 2019, Mother contacted the social worker requesting to move her visits with A.W. to a CFS office. Mother believed that a supervising aid at her current location was "'harassing [her] and roll[ed] her eyes at [her] because she [didn't] like [Mother].'" Mother also believed that the visitation coach "[wrote] false reports about [her] because they [didn't] like [her]."
The contested jurisdictional/dispositional hearing was held on October 17, 2019. After the court heard testimony from Mother and argument from the parties, the juvenile court found true the allegations in the seconded amended petition and declared A.W. a dependent of the court. Father's counsel requested Mother's visits be found detrimental and asked to suspend Mother's visits. A.W.'s counsel agreed with the request.
In considering the dispositional orders, the court noted: "I heard the testimony. I've read everything, and I really did not find Mother credible when she testified. There were so many things where she had different versions, and then she was also defensive on the stand. . . . And in light of comparing what was in the reports and her demeanor when she testified, I honestly didn't believe her." The court found that A.W. sustained severe physical harm as a result of the beating. Taking into consideration that this was Mother's third dependency, and "[the children] can't really protect themselves or speak for themselves really," the court found that the bypass of reunification services to Mother was appropriate. The court thus denied Mother reunification services under section 361.5, subdivisions (b)(3) and (b)(6), maintained A.W. in Father's custody under a family maintenance plan, and granted CFS authority to dismiss the case with family law orders by an approval packet.
Regarding visits, the court weighed a possibility of family therapy in lieu of therapeutic visits, however, ultimately the court noted: "I think honestly with Mother's conduct during the visits, though, you know, and the kids' reactions during the visits—I just can't see that it would be safe for them to have Mom visit, so that is kind of how I see it. I would find a detriment." The court found visitation between A.W. and Mother was harmful to A.W.'s safety and/or emotional well-being, and therefore ordered no visitation between A.W. and Mother.
On October 30, 2019, Mother filed a timely notice of appeal.
III
DISCUSSION
Mother argues the juvenile court erred in denying her visitation with A.W. because there was no showing visits between her and A.W. were detrimental and the court's no-visitation order violated her constitutional rights. We disagree.
At the dispositional hearing, the juvenile court's obligation to order visitation is affected by whether reunification services are ordered or denied. When the juvenile court places a dependent child in foster care and orders reunification services, it shall also order visitation between the parents and child. (§ 362.1, subd. (a)(1)(A).) "Visitation shall be as frequent as possible, consistent with the well-being of the child," but "[n]o visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(A), (B).) Thus, during the reunification period for a parent, visitation is mandatory absent the exceptional circumstance where visitation would threaten the child's safety. (In re C.C. (2009) 172 Cal.App.4th 1481, 1491.)
By contrast, when the court has denied reunification services under the bypass provision used here (§ 361.5, subds. (b)(3) & (b)(6)), visitation is discretionary. (In re J.N. (2006) 138 Cal.App.4th 450, 457 (J.N.).) Section 361.5, subdivision (f), governs this situation and provides: "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), italics added.) The permissive language of the statute gives the court discretion to permit or deny visitation, "unless of course it finds that visitation would be detrimental to the child, in which case it must deny visitation." (J.N., at p. 458.) In other words, despite Mother's claim to the contrary, no detriment finding is required to deny visitation. Unless and until the court makes such a finding, the power to grant or deny visitation lies within its discretion. The permissive language of the statute reflects the reality that visitation is not integral to the overall plan for the children when the parent does not receive reunification services. (Id. at pp. 458-459.)
Section 361.5, subdivision (f), "does not dictate a particular standard the juvenile court must apply when exercising its discretion to permit or deny visitation," but the best interest of the child "is certainly a factor the court can look to in exercising its discretion." (J.N., supra, 138 Cal.App.4th at p. 459.) We review the court's decision for abuse of discretion and ask whether the court exceeded the bounds of reason by making an arbitrary, capricious, or patently absurd decision. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; J.N., at pp. 459-460.)
Here, the juvenile court did not abuse its discretion in denying Mother visitation. The record indicates Mother's visits with A.W. were harmful to the child's emotional well-being. Mother coached A.W. and told him to misbehave so he could live with her. A.W.'s behavior negatively changed following visits with Mother. In addition, Mother violated the court's visitation orders by circling and appearing at A.W.'s school. Furthermore, Mother continued to coach the children despite the court's admonishments. The social worker noted that Mother used her visitation time to negatively affect A.W. and his placement. Mother also continued to deny the physical abuse, sexual abuse, and general neglect allegations or take responsibility for her actions.
Moreover, despite completing several parenting programs, Mother continued to "struggle[] with appropriate parenting and often tri[ed] to negotiate with the children by offering them treats or, as in this visit, money" when she was unable to console A.W. As of July 30, 2019, the supervising foster family agency concluded, based on its observations of Mother's visits, Mother rarely demonstrated an ability to recognize A.W.'s behaviors and cues and rarely to responded appropriately. On October 1, 2019, Mother became upset when she was told she would have supervised interaction with A.W. at all times. The supervising aid believed Mother was looking for a break between therapy sessions and the visits in order to have unsupervised time with A.W. As a result, the juvenile court correctly reasoned Mother's visitation with A.W. was detrimental to the child's well-being.
Mother's reliance on In re Dylan T. (1998) 65 Cal.App.4th 765 (Dylan T.) to suggest that the court was required to consider several factors in reaching its conclusion of detriment is misplaced. In Dylan T., the juvenile court declared a one-year-old child a dependent of the court after the mother was sentenced to one year in jail. The juvenile court ordered a reunification plan but denied the mother in-custody visitation based on the child's young age. The Dylan T. court reversed the lower court order denying in-custody visitation on the ground there was no evidence that in-custody visitation would have been detrimental to the child. (Id. at p. 775.)
In reaching its ruling, the Dylan T. court noted that, "Although dictum in In re Jonathan M. [(1997)] 53 Cal.App.4th [1234,] 1237 suggests that a specifically listed factor in section 361.5, subdivision (e)(1) could stand on its own as a reason to deny visitation, the particular factor of the minor's age, without some supporting evidence demonstrating how the age of the minor resulted in detriment when visiting the incarcerated parent, cannot be utilized by itself to deny visitation. The court must consider each listed factor and any other additional factors when it determines detriment. Any one factor or combination of factors might result in a finding of detriment, but it must be shown by clear and convincing evidence how the factor or factors result in a detriment." (Dylan T., supra, 65 Cal.App.4th at pp. 773-774.)
Here, Mother was denied reunification services. Reunification services were not ordered and the issue of crucial bonding with a parent is not the goal. (J.N., supra, 138 Cal.App.4th at pp. 458-459.) Dylan T., as noted above, was a situation in which reunification services had been ordered.
We find no abuse of discretion on the part of the juvenile court in denying Mother visitation. Mother has not established that, under the circumstances in this case, her constitutional rights were violated. Mother has not shown that the court's denial of visitation was arbitrary.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.