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In re M.S.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
No. D060044 (Cal. Ct. App. Jan. 13, 2012)

Opinion

D060044

01-13-2012

In re M.S. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LINDA S., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ14109A & B)

APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.

Linda S. appeals juvenile court orders limiting her visitation with her dependent daughters, 14-year-old M.S. and 13-year-old S.S. (together, the minors). Linda contends the court abused its discretion by not allowing her face-to-face contact with S.S. She further contends the court improperly delegated its authority to M.S. and the social worker to determine whether any visits with M.S. would occur. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2009, the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under Welfare and Institutions Code section 300, subdivision (b), alleging the minors were at substantial risk of serious physical harm because of Linda's mental illness. Specifically, the petitions alleged Linda had self-inflicted injuries; contemplated hanging herself from the rafters of the garage; considered throwing herself in front of traffic; and threatened to kill herself with a box cutter in the minors' presence. Linda had a history of depression and suicidal ideation. S.S. had numerous diagnoses, including autism, developmental delays, mood disorder, mild mental retardation, generalized anxiety, cerebral palsy and significant speech impairment. M.S. had diagnoses of Asperger's Syndrome, anxiety disorder and moderate psychosocial stressors. The court detained the minors in out-of-home care.

Statutory references are to the Welfare and Institutions Code.

At a contested jurisdiction and disposition hearing, the court sustained the allegations of the petitions, declared the minors dependents and placed them in foster care. The court ordered no reunification services for Linda under section 361.5, subdivision (b)(2), and set a hearing under section 366.26 to select and implement permanent plans for the minors.

Agency reported there was no one available or willing to adopt the minors, who were living in separate foster care placements because they had different needs. At a selection and implementation hearing in March 2010, the court ordered another planned permanent living arrangement (APPLA) as the minors' permanent plans. The court made no change to its prior order for weekly supervised visits between Linda and the minors.

In September 2010, the court granted Agency's section 388 petitions for modification and ordered the supervised visits between Linda and the minors to occur in a therapeutic setting. Agency was concerned about the minors' health as a result of their exposure to Linda's aggressive behaviors during visits, including her angry demeanor, which affected her interactions with the minors.

Less than two months later, Agency filed another section 388 petition, requesting the court suspend in-person visits between Linda and M.S., and order no contact between Linda and S.S. Agency explained that the group home staff had terminated its visitation services because Linda posed a safety threat by frequently losing emotional control, and refusing to follow rules or respond to redirection. Agency staff supervising visits at other locations had difficulty redirecting Linda when she lost her composure, engaged in inappropriate conversations and failed to interact appropriately with the minors.

During one supervised visit, Linda asked about a red mark she saw on S.S.'s neck. The social worker said it appeared to be an insect bite that S.S. had scratched. Linda continued to ask about the red mark, even after S.S. said she did not want to discuss it. When Linda tried to photograph the red mark, S.S. covered it, saying she did not want it photographed. Linda became critical of Agency staff and S.S.'s foster placement. When the social worker was unable to redirect Linda, the visit was terminated. As Linda was leaving, she roughly grabbed S.S. by the shirt collar, turned her around, and pulled her shirt down, exposing her shoulder. Linda began yelling loudly at the social worker, and S.S. reacted with a look of surprise and shock. Linda's aggressive and explosive behavior caused the social worker to become concerned for S.S.'s safety.

At another supervised visit with S.S., Linda became extremely upset and began shouting when she learned M.S. would not be joining them. The social worker was unable to calm Linda down and had to cancel the visit. When the social worker asked S.S. to accompany her to the car, Linda lunged at S.S. and grabbed her arm, pulling S.S. toward her. Linda sat down with her arm around S.S. and refused to let her go. S.S. was confused and frightened. She began to cry and seemed emotionally distraught. The mental health clinic director came to assist, and after making no progress for one hour, called the sheriff's department. The deputy sheriff who responded escorted S.S. to the social worker's car. When S.S. arrived at her foster home, she cried and told the foster mother her arm hurt because Linda had pulled it. This necessitated a visit to the emergency room.

Visits between S.S. and Linda did not occur between November 2010 and February 2011 as a result of Linda's inappropriate behavior during supervised visits. The foster mother reported S.S.'s behavior improved during the three months of no contact with Linda.

At a hearing on the section 388 petition, the court denied Agency's request to suspend in-person visits between Linda and M.S., instead ordering supervised visits, twice a month if possible, in a therapeutic setting. The court granted Agency's request for no contact, other than supervised telephone calls, between Linda and S.S. but gave the social worker discretion to resume visits in a therapeutic setting.

In an unpublished opinion, we affirmed the juvenile court's orders granting Agency's section 388 petition suspending Linda's visitation with S.S. (In re M.S. Oct. 14, 2011, D059115 [nonpub. opn.].)

Following that hearing, Linda and M.S. continued their supervised visits and telephone calls. There were some visits M.S. refused to attend, and some visits Linda did not attend. S.S. was having weekly supervised telephone conversations with Linda, who was generally appropriate. Since telephone contact resumed, S.S. was more defiant, anxious, and had other negative behaviors in her foster home. After some telephone calls, S.S. would pack her belongings as if she were going to move.

At a contested postpermanency planning review hearing, the court received in evidence Agency's reports. Social worker John Freistedt, who was assigned to S.S.'s case, testified S.S. had suffered no detriment as a result of not seeing Linda for eight months. S.S.'s negative behaviors did not increase when contact with Linda was cut off. In fact, S.S. was much more compliant and willing to follow a routine when she had no personal contact with Linda for three months. Once telephone calls resumed, S.S. was reluctant to obey the foster mother or finish tasks.

Freistedt's assessment that Linda posed a risk of physical harm to S.S. was based on the history of the case, Linda's aggressive and erratic behavior in a supervised setting, the recent change in court orders, and an incident when Linda grabbed M.S. Freistedt was even more concerned about S.S.'s emotional well-being. S.S. and Linda were very bonded, making S.S. vulnerable because of her limited ability to protect herself and her desire to please Linda. Freistedt viewed the current limitation on visitation between Linda and S.S. as temporary. However, before he could recommend face-to-face visits, Freistedt needed to know about Linda's progress in therapy, and whether she had developed coping skills. Additionally, he would like to see Linda control her disappointment in front of S.S., see how Linda handled telephone contact with S.S., and see how S.S. reacted to those calls. Although Freistedt would consider the quality of Linda's visits with M.S. in order to gauge the appropriateness of visits with S.S., his recommendation for face-to-face visits between Linda and S.S. would not depend entirely on that information.

Social worker Joelle Grove, who had recently been assigned to M.S.'s case, testified she scheduled visits between M.S. and Linda twice a month and encouraged M.S. to attend visits. However, M.S. wanted visits only once a month. She consistently went to monthly visits. Linda did not always attend scheduled visits with M.S., one time refusing to attend because Agency would not allow her to bring someone with her. In the past few months, Linda and M.S. mutually agreed to cancel a visit. On one occasion, M.S. did not want to attend the visit that day, despite Grove's encouragement to do so. When Linda was informed about the cancellation, she insisted, in a loud voice, that M.S. attend the visit, stating Grove should have forced M.S. to come because she was a 14-year-old child who was not entitled to get her way.

Grove further testified M.S. was working with a therapist on issues related to visitation, as well as building self-confidence and "finding her voice." M.S.'s statement that she did not want to attend a visit was her way of expressing herself. Based on M.S.'s therapy goals and her need to develop other personal skills, Grove believed it was important to respect M.S.'s wishes about a particular visit, and it would not be in M.S.'s best interests to force her to attend. Grove recommended visits remain supervised in a therapeutic setting until Linda made some progress. This allowed the visitation supervisor to help M.S. interact with Linda and intervene for M.S.'s safety if necessary.

According to Grove, Linda's visits would improve if her behavior was less volatile and she spoke in a calm manner on the telephone. Linda also needed to stop asking M.S. sensitive questions, and not refuse to leave a visit that had to be terminated. Grove would like to see Linda refrain from talking or thinking about suicide, and continue positive interactions with M.S. without giving her ultimatums. Grove hoped the relationship between M.S. and Linda would improve so that M.S. wanted to visit Linda and looked forward to those visits.

After considering the evidence and arguments of counsel, the court continued the minors as dependents with permanent plans of APPLA, and found the existing visitation orders were appropriate and in the minors' best interests. The court gave the social worker discretion to expand visitation outside a therapeutic setting, and to further expand visits, with the concurrence of minors' counsel.

DISCUSSION


I

Linda contends the court abused its discretion by continuing its prior order denying her face-to-face contact with S.S. She asserts the court failed to consider her progress in therapy and her appropriate contact with S.S. during supervised telephone calls. Thus, Linda argues, the court did not fashion a visitation order that was in S.S.'s best interests.

A

When the juvenile court selects APPLA as a minor's permanent plan, it must order visitation for the parent unless it finds, by a preponderance of the evidence, visitation would be detrimental to the physical or emotional well-being of the minor. (§ 366.26, subd. (c)(4)(C); In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313.) The juvenile court defines a parent's visitation rights by balancing the parent's interests in visitation with the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may impose restrictions on parental visitation, consistent with the child's best interests under the circumstances of the case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009; In re Clara B. (1993) 20 Cal.App.4th 988, 999.) Visitation orders must provide flexibility in response to the changing needs of the child and to dynamic family circumstances. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374, 1376.) The state's obligation to provide for the best interests of the child justifies any limited intrusion on a parent's right to visitation. (In re Melissa H. (1974) 38 Cal.App.3d 173, 175.)

The court has broad discretion in making visitation orders. (In re Neil D. (2007) 155 Cal.App.4th 219, 224-225.) We review a visitation order for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352.) In this regard, we will not disturb the juvenile court's order unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re K.D. (2004) 124 Cal.App.4th 1013, 1018.) When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1127.)

B

Here, the evidence showed Linda had a history of aggressive and inappropriate behavior at visits with S.S. At one visit, Linda became angry and accusatory when she saw a red mark on S.S.'s neck. She roughly grabbed S.S. by the shirt collar, turned her around, and pulled her shirt down. S.S. was surprised and shocked by Linda's loud yelling, and the social worker was concerned for S.S.'s safety. At another visit, Linda expressed her disappointment about M.S. not attending by grabbing S.S. and refusing to let her go until law enforcement intervened an hour later. Linda's protracted outburst caused S.S. to become confused, fearful and upset, and she said Linda had hurt her arm. Following these incidents, Agency could not guarantee S.S.'s physical safety and well- being in a structured visitation setting. The court suspended face-to-face visitation after reasonably finding Linda's escalating behaviors were detrimental to S.S.

In continuing its previous order limiting Linda's visits with S.S. to weekly supervised telephone conversations, the court was required to consider S.S.'s best interests under the circumstances of the case. S.S., who functioned at the level of a seven- or eight-year-old child, felt responsible for the break-up of the family, and consequently exhibited signs of anxiety. Contact with Linda disrupted S.S.'s foster placement and diminished the overall quality of her life. During a three-month period of no contact with Linda, S.S.'s behavior consistently improved. Once S.S. resumed contact with Linda by telephone, she regressed, even though conversations were generally appropriate. S.S. became more defiant, anxious, and had other negative behaviors in her foster home, including packing her belongings in anticipation of moving.

The record does not support Linda's assertion the court failed to consider all the circumstances in making its visitation order. The court expressly stated it had read and considered each of the reports in evidence, and had "listened very carefully to the testimony presented." In essence, Linda claims the court should have given more weight to the evidence favorable to her. However, issues of fact were for the juvenile court to weigh and decide, and we have no power to reweigh them. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)

Further, the court was entitled to consider social worker Freistedt's professional opinion that face-to-face visits would not be appropriate until Linda had learned to better manage her own behavior, including her reaction to surprise and disappointment. The court considered evidence that Linda was participating in therapy to increase her self-control and consequently, telephone conversations with S.S. had improved. However, at the time of the postpermanency planning review hearing, Linda had only attended four therapy sessions. Her therapist reported she had significant difficulty regulating her behavior. He also noted Linda was anxious and paranoid that her behavior during visits could be viewed negatively, and thus, it did not take much to trigger a reaction in her. The therapist said he could not make a recommendation regarding Linda's visitation, and he was not willing to supervise her visits with the minors.

Given how significantly S.S.'s behavior was affected by telephone contact with Linda, and how recently Linda had begun addressing issues of self-control in therapy, the court could properly decide to continue its order for no face-to-face contact pending the next review hearing in six months. Thus, the court's visitation order as to S.S. was a reasonable exercise of its discretion.

II

Linda challenges the court's visitation order as to M.S., which requires supervised visits "in a therapeutic setting twice per month if possible." She asserts the order was an improper delegation of the court's authority because it is not specific enough to ensure she has contact with M.S. Linda further asserts this order, which allows M.S. to refuse visits, impedes her ability to have face-to-face contact with S.S. because Agency intends to evaluate Linda's visits with M.S. before making a recommendation for visits with S.S.

A

The juvenile court has the sole authority to determine whether visitation will occur and may not delegate that authority to the social worker, therapist or the child. (In re Christopher H., supra, 50 Cal.App.4th at pp. 1008-1009; In re Julie M. (1999) 69 Cal.App.4th 41, 51; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505.) Although the juvenile court may delegate the ministerial tasks of overseeing visitation to the person or entity best able to perform them, it must ensure regular visitation occurs. (In re Jennifer G., supra, 221 Cal.App.3d at p. 757; In re Moriah T., supra, 23 Cal.App.4th at p. 1374; In re S.H. (2003) 111 Cal.App.4th 310, 317.)

A visitation order may properly permit consideration of a child's wishes regarding visits with a parent. "[T]he 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 [court unlawfully delegates its authority when it orders visitation contingent on a child's consent].) The court's duty to focus on the best interests of the minor includes considering "the 'possibility of adverse psychological consequences of an unwanted visit between [parent] and child.' " (In re Julie M., supra, 69 Cal.App.4th at p. 50.) Thus, a child's aversion to visiting a parent may be a dominant factor in administering visitation, as long as it is not the sole factor. (Id. at p. 51.)

B

Here, the court's order did not give M.S. the ability to determine whether visitation would occur. Instead, the court ordered supervised visits in a therapeutic setting up to twice a week, and balanced Linda's right to visitation with M.S.'s emotional well-being by allowing M.S. to refuse a particular visit. (Cf. In re S.H., supra, 111 Cal.App.4th at p. 319, fn. 12 [court's visitation order allowed minors to veto all contact].) While recognizing M.S. was at a difficult and challenging developmental stage, the court emphasized that she would not be able to refuse all contact with Linda, stating "[M.S.] is 14. She cannot control the overall strategy of her visits."

Further, the record shows social worker Grove scheduled visits twice a month and encouraged M.S. to attend those visits. Since the last hearing, face-to-face visits between Linda and M.S. occurred on March 17 and May 2, and telephone visits occurred on April 9 and May 8. When M.S. declined a visit on June 6 so that she could attend a school trip, another visit was scheduled. M.S. was working with a therapist on issues related to visitation, as well as building self-confidence and "finding her voice." Based on M.S.'s therapy goals and her need to develop other personal skills, Grove believed M.S.'s wishes about the visit should be respected, and it would not be in her best interests to force her to attend. Thus, the court acted in M.S.'s best interests by making her input on visits a dominant factor, but not the sole one, in implementing the visitation order. (See In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238.)

Linda claims that if M.S. continues to refuse visits with her, Agency will not be able to assess their visitation progress, and therefore, will not recommend face-to-face contact with S.S. However, as we previously noted, M.S. was having regular visits with Linda, some face-to-face and some by telephone. Two visits did not occur because Linda canceled them. As Grove noted, if Linda's behavior during visits improved, she would be able to develop a relationship with M.S. that encouraged and fostered visitation. Moreover, the quality of Linda's visits with M.S. was only one of many factors to be considered by social worker Freistedt in recommending face-to-face visits between Linda and S.S.

The court's visitation order as to M.S. required a minimum amount of contact, which could increase if Linda regulated her conduct and improved her relationship with M.S. The court did not impermissibly delegate its authority by making visitation contingent on M.S.'s consent. Thus, the order was in M.S.'s best interests and well within the juvenile court's discretion.

DISPOSITION

The orders are affirmed.

____________

McCONNELL, P. J.
WE CONCUR:

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O'ROURKE, J.

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IRION, J.


Summaries of

In re M.S.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 13, 2012
No. D060044 (Cal. Ct. App. Jan. 13, 2012)
Case details for

In re M.S.

Case Details

Full title:In re M.S. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 13, 2012

Citations

No. D060044 (Cal. Ct. App. Jan. 13, 2012)

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