Opinion
C087961
10-02-2019
In re A.M., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STK-JV-DP-2013-0000059, J06261)
A.C. (mother) appeals from the juvenile court's order terminating her parental rights and issuing a restraining order prohibiting her from contacting A.M. (the 13-year-old minor) or his foster parents. (Welf. & Inst. Code, §§ 366.26, 395.) Mother contends the juvenile court denied her procedural due process by refusing to compel the minor to testify at the contested section 366.26 hearing. She further contends there was insufficient evidence to support the court's issuance of the restraining order against her. We will affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Portions of the background summary are taken from our opinion affirming the juvenile court's previous visitation order in In re A.M. (June 12, 2018, C085215) [nonpub. opn.], a copy of which was made a part of the appellate record.
Detention June 2013
"The minor (born Dec. 2005) first came to the attention of the San Joaquin County [Health and] Human Services Agency (Agency) in March 2013 when his half-sibling D.C. reported to police that mother had slapped her several times in the face. The Agency filed a dependency petition on March 27, 2013, alleging the minor and his siblings, D.C. and M.C., came within [section 300, subdivisions (b), (g), and (j)], for a number of reasons, including the reported current physical assault on D.C. and past assaults by mother . . . . The juvenile court sustained the allegations in the petition. The minor [then age seven and a half] was detained on June 4, 2013, after mother refused to submit to a drug test. (In re A.M., supra, C085215.) Visitations and Mother's Difficult Behavior —2014
"Neither D.C. nor M.C. are parties to this appeal and will be discussed only where necessary to provide context and information pertinent to the issues on appeal. The minor and his siblings are sometimes collectively referred to as 'the minors.' "
Supervised visitation between mother and the minor was problematic from the beginning due to mother's difficult behavior, which included smoking, being argumentative, not following directions, allowing the minors to run all over the parking lot, and bringing other people to visits. A January 2, 2014 status review report stated that "mother continued to have a difficult time complying with visitation rules, like not discussing the case with the minor and telling him he would be home soon. While mother's visits with the minor were consistent, they were 'not without chaos and drama,' which resulted in termination of two visits due to mother's 'erratic behavior,' " including screaming at staff and not calming down, resulting in termination of the visit." (In re A.M., supra, C085215.) "Another visit was terminated after mother became outraged when her boyfriend, who did not have any identification, was not allowed to participate in the visit. Mother told the social worker, ' "Fuck you," ' and her behavior continued to escalate, requiring staff to summon law enforcement and terminate the visit. The report further noted the difficulty in engaging with mother due to mother's conduct, her uncontrollable bouts of anger, and her refusal to accept responsibility for her past and present behavior." (In re A.M., supra, C085215.)
"On March 6, 2014, at the request of minors' counsel, the court admonished mother not to call minors' counsel's office, not to coax the minors to write letters, and not to speak to the minors about the case." (In re A.M., supra, C085215.)
The status review report filed on May 14, 2014, stated mother's behavior continued to be a problem. Mother violated court orders by having unauthorized and unsupervised contact with the minors, after which the minor " 'had tearful episodes' " requiring his foster mom " 'to spend time de-escalating him.' " (In re A.M., supra, C085215.) "[A]fter being arrested for failure to appear for a charge of petty theft and burglary, mother contacted the minor and told him she was in jail and would not attend their weekly visit, causing the minor to become very upset, cry, and act aggressively with other children in the foster home. Mother again contacted the minor two days later after her release from jail and instructed him to ask his foster parents to bring him for an unauthorized visit. This upset the minor, who cried and became frustrated and argumentative, demanding to see mother." (Ibid.)
At the July 1, 2014 contested dependent review hearing, the court terminated mother's reunification services and continued the minors as dependent children of the court in out-of-home placement.
According to the November 20, 2014 status review report, the minor and his siblings were living with the maternal grandmother in Idaho, where he was adjusting to his environment and appeared to be " 'comfortable and relaxed.' " (In re A.M., supra, C085215.) "Mother, who had arrived in Idaho on August 19, 2014, was visiting regularly with the minors. At the November 20, 2014 review hearing, the juvenile court found by clear and convincing evidence that return of the minors to mother would create a substantial risk of detriment, and continued the minors as dependents of the juvenile court. All prior orders, including the visitation order, remained in full force and effect." (Ibid.) Placement and Visitations —2015
"At the February 13, 2015 placement review hearing, the Agency informed the court that Idaho social services was no longer willing to supervise the minors due to a physical altercation between D.C. and the maternal grandmother, during which the grandmother allegedly hit D.C. The court was also advised that, during the course of investigating the altercation, it was discovered that mother was in fact living with the maternal grandmother and the minors, contrary to court order and mother's previous representation. The juvenile court authorized the Agency to retrieve the minors from Idaho and return them to California.
"At the March 3, 2015 hearing on placement and visitation, mother's counsel denied mother was living with the maternal grandmother in Idaho and requested visitation with the minors. The Agency and minors' counsel objected to visitation as not in the minors' best interests. The court temporarily denied visitation without prejudice and set the matter for review.
"At the March 12, 2015 placement and visitation review hearing, the Agency informed the court that, since her return from Idaho in February, mother had been arrested. She had also been visiting the minor and his siblings, which resulted in the minor becoming 'aggressive.' The Agency and minors' counsel objected to further visitation until the minor could be 'stabilized' and obtain counseling. Mother's counsel requested visitation, arguing visitation in Idaho had gone well and denying that any visitation between mother and the minors had occurred since mother's return from Idaho. The court temporarily suspended visitation until the next hearing date of May 14, 2015. Mother became argumentative, telling the court, 'You are so wrong to do this. You are hurting my kids.' 'I am coming back. Filing an appeal. I am a good mom. Everything is a lie.'
"Mother appealed the court's March 12, 2015 order temporarily suspending visitation with the minors (A.M. and D.C.). This court requested supplemental briefing discussing why the appeal should not be dismissed as moot in light of the fact that the challenged temporary period of suspension had already passed." (In re A.M., supra, C085215.)
In the meantime, the Agency filed a May 14, 2015 status review report stating the minor was adjusting to his current home environment and his new school, while mother seemed unaware of her role in the disrupted placement with the maternal grandmother in Idaho and continued to blame the social worker for taking away her visits. "The report noted no visitation had taken place since the minors' return to California on February 18, 2015, and indicated the minor and his siblings were requesting visits with each other and mother.
"Mother attended the August 6, 2015 visitation review hearing and requested that the court withdraw the order suspending visitation with the minor and his sibling. The Agency informed the court it was concerned about possible improper communications between mother and D.C. and the risks of 'destabilizing the placement,' but stated it would not object to once-a-month supervised visitation with the minor, increasing in frequency so long as 'it is not destabilizing' and 'mother doesn't say anything inappropriate.' Mother's counsel informed the court that mother wanted visitation with both the minor and his sibling and requested more frequent visits with the minor. The court concluded, over mother's objections and interruptions, that visitation with the minor would 'start off once a month' to 'see how it goes,' and indicated it had no opposition to increasing the frequency of visits at a later time or conducting those visits at mother's home. Mother was eventually removed from the courtroom for disruptive behavior. The court ordered monthly supervised visitation between mother and the minor.
"Mother appealed the court's August 6, 2015 order.
"At the September 17, 2015 placement review hearing, mother requested increased visitation with the minor, as well as visitation between the minor and 'his father' (mother's boyfriend). Mother also expressed concern that the minor had not been given an opportunity to address the court, and claimed she was not provided with a copy of the most recent report. The court indicated it was not prepared to change the visitation orders and ordered visitation to remain as previously ordered. The court further stated it would allow the social worker to talk to the minor to determine if visits with the father were possible, but indicated the matter would require the approval of the court. Mother also complained she had not had any telephone calls with the minor. The court noted that right had previously been restricted. Mother informed the court, 'I want to appeal everything. I am appealing every single court date I have. You have, so wrong, so wrong, so wrong, I didn't do nothing.' 'You can't take my visits like that. You can't take, detriment to my child. Conflict of interest, too.' The hearing was concluded.
"Mother appealed the court's September 17, 2015 order.
"On October 27, 2015, mother filed a request pursuant to section 388 to change the court's order terminating her reunification services. The court subsequently denied mother's request.
"According to the status review report filed November 12, 2015 (and refiled on Nov. 23, 2015), the minor stated he was 'doing okay for now,' but hoped to resume visits with his mother and siblings. Mother did not show up for a scheduled visit on September 10, 2015, but resumed supervised visits with the minor on October 14, 2015. The minor was reportedly 'carefree and overjoyed by his family living experience' while in Idaho. He felt safe and his basic needs were being met. He informed the social worker he was happy living with his grandmother and mother, and he was upset that he had to leave his family." (In re A.M., supra, C085215.) Visitations and Mother's Unauthorized Contacts with the Minor —2016
"At the January 6, 2016 status review hearing, the court held an in camera Marsden hearing in chambers in response to the minor's request for a new attorney. After a discussion with the minor and minor's counsel, the court determined the minor was comfortable with current counsel. Minor's counsel informed the court that the minor 'wants to go home,' and '[v]isitation, he wants to see his mom.' The minor also requested visits with his dad (mother's long-time boyfriend), whom the minor had known since he was one and a half years old. Following the Marsden hearing, the court continued the minor's out-of-home placement and ordered twice-monthly supervised visits between the minor, mother, and, upon proper clearance, mother's boyfriend. The court also admonished mother to follow visitation guidelines and not speak with the minor about returning home.
"People v. Marsden (1970) 2 Cal.3d 118."
"At the January 20, 2016 visitation hearing, counsel for Child Protective Services (CPS) reported that mother attended a visit with the minor on January 13, 2016, which 'did not go well.' The supervising agency, Child Abuse Prevention Council (CAPC) stated it was no longer willing to supervise visits due to mother's attempt to have inappropriate communication with the minor, as well as her aggressive behaviors, including becoming belligerent, cussing, and screaming at the visitation monitor and getting in the visitation monitor's face such that the monitor feared for her safety. The minor, who had earphones on, reportedly 'put his face down.' The monitor terminated the visit and asked mother to leave. CPS counsel and the Agency requested that the court suspend visitation between mother and the minor. Mother's counsel objected to reduction or suspension of visits, disagreed with the description of events, and requested a contested hearing. Mother's counsel further expressed a concern about mother's competence and requested a referral to determine whether appointment of a guardian ad litem would be appropriate for mother. The court suspended visitation and ordered a psychological evaluation of mother.
"At the February 11, 2016 placement review hearing, all parties stipulated, in lieu of testimony, that the minor wanted visits with mother. Joan Jacobs, the CAPC program manager for supervised visits, testified she supervised the January 13, 2016 visit between mother and the minor. Jacobs testified the visit went well at first, but she became concerned when she saw mother take a piece of paper with writing on it and give it to the minor [without Jacobs seeing it first as required]. When Jacobs asked to see what was on the piece of paper, mother raised her voice and said Jacobs had no right to ask to see the paper and mother could parent the minor any way she wanted to parent him and give the minor anything she wanted to give him. Jacobs again asked to see the piece of paper and mother told her it was a picture of mother and the minor's father and refused to give it to Jacobs. Mother continued telling Jacobs she 'had no right to do that,' and Jacobs explained that it was part of the posted rules. Mother asked for a copy of the rules in writing and Jacobs referred her to the social worker. Mother was '[v]ery angry,' her voice was raised, and she was looking at Jacobs 'with an angry look on her face' and her arms moving about, all while the minor 'was sitting right there.' When Jacobs told mother her behavior was inappropriate and the visit would need to be terminated, mother continued confronting Jacobs and using profanity, and accusing Jacobs of abusing her own children, all in front of the minor. Mother's tone caused Jacobs to be concerned for her own safety. Mother continued to berate Jacobs and shout profanities at the rest of the staff, accusing them of abusing their own children and being bad parents. At one point, mother moved very close to Jacobs, who tried to remain calm so as not to escalate the situation. The minor sat down in the lobby, 'shrunk down into his chair, and . . . covered his face with his tablet and . . . put earphones in.' When Jacobs tried to check in with the minor to see if he was okay, the minor did not respond. Mother eventually left the building and Jacobs remained inside with the minor.
"Jacobs testified she had previously met with mother for parent coaching during a visit in December 2015. When Jacobs tried to explain the purpose of parent coaching, mother's face turned red and, with a raised voice and a hostile tone, she said she was not going to do parent coaching and did not need it and was not going to have anybody tell her how to parent her son. The visit continued without parent coaching and mother interacted appropriately with the minor.
"Jacobs requested that the court suspend visitation at CAPC because she was concerned for the safety of her staff and the exposure of the other clients and children due to mother's profanity, anger, and verbal abuse.
"Mother testified and denied cursing at Jacobs at the January 13, 2016 visit, claiming Jacobs 'lies.' Mother stated she told Jacobs, '[Y]ou are not the mom and you are not his foster mom, and I can give him the picture when I want. When I step out of this building, I will give it to him.' When asked whether she would follow a rule prohibiting her from passing anything to the minor, mother responded, 'I don't think it is right. I will give it to him outside. I will follow them inside. I don't think it is right.' Regarding the visit, mother added, 'She [(Jacobs)] lied about the whole thing. I don't think it is right she can sit here and lie and get my visits suspended. It is wrong.'
"On cross-examination, mother was asked how she knew what the minor would testify to. Mother responded, '[The minor] tells me.' When asked when she spoke with the minor, mother said, 'I don't. When he calls, whenever he calls. Whenever he is allowed to call me.' However, she could not remember the last time she spoke with the minor, and became angry and combative when asked whether she was having unauthorized contact with the minor and whether she was under the influence of any substance. Mother denied being under the influence and testified she was angry because counsel was 'lying and bothering' her. Mother claimed she did nothing to cause the minor's removal and testified her children were removed '[b]ecause my daughter lied. Because I slapped my kids it said in the report. There are no marks on her. I am not here because of me.' She also claimed the minor's counsel lied in the reports and about 'everything from day one.'
"Mother also testified that she became upset during the December 2015 visit because her boyfriend was not allowed to participate. She admitted she yelled at people, and that the minor and his siblings 'get upset' because they 'don't want the visits cut short.' Mother added, '[The minor] don't get to testify. That is wrong. He was there. It will—it is a violation of his rights. And I am telling him.'
"Alisha Long, the CAPC program assistant, testified she was covering the front desk at CAPC during the January 13, 2016 visit and observed mother in the front lobby being 'very hostile and cussing and very mad because she wanted the rules of the visit.' Long also observed that Jacobs, who was monitoring the visit, remained calm and told mother she should ask the social worker for the visitation rules. However, mother continued 'cussing' and then eventually left the building.
"The Agency requested that the court suspend mother's visitation with the minor due to mother's lack of self-control and her inability to control her angry outbursts regardless of whether the minor was present. The court was reminded of its previous admonition to mother that she abide by the CAPC visitation rules and mother's subsequent disregard for that admonishment, which resulted in Jacobs's fear for her own safety and the safety of others and her request that visits no longer take place at CAPC. Counsel expressed concern regarding mother's unauthorized contact with the minor and her admitted intention to do so in the future. It was also requested that mother obtain mental health counseling or substance abuse treatment. Minors' counsel agreed, adding that mother's actions were detrimental to the minor and his sibling.
"Mother's counsel argued the minors wanted to continue visits with mother and it would be detrimental to suspend visits that were otherwise beneficial to the minors. Counsel argued mother had an appointment with a psychiatrist and was willing to participate, and wanted 'desperately' to continue visits with the minors.
"The court found that, with regard to the January 2016 visit, mother had 'turned something very small into a major issue with [the minor] seated right there to listen to the whole thing.' The court was 'extremely concerned' about unauthorized contact between mother and the minor, noting a finding of such unauthorized contact would be 'substantial evidence to suspend the visits permanently.' Commenting that mother's conduct in court was 'atrocious' and 'another further demonstration of your inability to conduct yourself in an appropriate fashion,' the court suspended mother's visitation with the minors pending feedback from psychiatrist Gary Cavanaugh, M.D. Mother accused the court of lying and believing lies and was temporarily removed from the courtroom. Upon her return, the court admonished her and she apologized.
"Mother appealed the juvenile court's January 6, 2016, January 20, 2016, and February 11, 2016 orders regarding visitation. This court subsequently dismissed her appeal.
"At the March 24, 2016 review hearing, the court noted it had considered Dr. Cavanaugh's report, including his recommendation that a guardian ad litem be appointed on mother's behalf. Mother objected, telling the court she was not incompetent and could make her own decisions. She complained that people were lying about her and stated the way she acted in court is not how she acted every day. Mother also complained that the minor's rights were being violated because he was not allowed to testify. The court found, based on the evidence and Dr. Cavanaugh's evaluation, that mother was not able to adequately assist her counsel and appointed a guardian ad litem on her behalf. Mother again became disruptive, slammed the door on her way out of the courtroom, and said, 'I don't give a shit.' The court found mother in contempt and temporarily remanded her due to her disruptive behavior. Upon mother's return to the courtroom, the court again admonished her. Mother apologized and the court released her.
"The status review report filed May 9, 2016, stated the minor had been in his current placement for one year and was doing well. He had a good relationship with his foster family. While the minor was reportedly 'challenging at times,' his foster parents understood his challenging behaviors had increased since suspension of visits with mother and were working with the minor on his behaviors. The minor struggled seeing his foster siblings have visits with their parents while he was not allowed to see his mother and was at times rude and belligerent with his foster siblings and foster parents. He told his foster parents he wanted to see his mother.
"Mother's visits with the minor had reportedly been appropriate. Any issues regarding visitation stemmed from mother's negative interactions with the supervising staff. However, as of February 3, 2016, mother had reportedly been respectful toward the social worker, stating she was aware of her anger issues and was working on them. Mother had also been appropriate with the minor.
"The minor was present at the May 12, 2016 periodic review hearing. Minor's counsel expressed support for reinstatement of visitation, but informed the court regarding issues concerning mother's inappropriate interactions with visitation supervisory staff, passing notes to the minor, and coaching the minor during unauthorized telephone contact. Mother's counsel informed the court that mother was participating in counseling, attending AA meetings, testing at her sober living environment, and seeking assistance for sober living. The court remarked that mother had, for the first time, actively participated in the proceedings in a positive fashion and admonished mother to continue to do so. The court asked the minor whether he wanted to visit with mother and the minor said, 'Yeah.' The minor's court-appointed special advocate (CASA) confirmed that the minor 'wants very much to see his mother.' The court ordered supervised visitation.
"On June 14, 2016, this court affirmed all three visitation orders (Mar. 12, 2015, Aug. 6, 2015, and Sept. 17, 2015) as to the minor.
"At the August 17, 2016 visitation hearing, the Agency informed the court that mother had been allowing unauthorized telephone contact between the minor and other relatives during visits, and that mother would take the minor to a play area and whisper to him and give him a cell phone. The Agency noted that, following visits, the minor was struggling in placement and confused, and wanted to go home. The Agency also noted mother was 'doing better' and was 'more cooperative with the Agency.' Minor's counsel expressed concern that the minor's behavioral issues following visits with mother could jeopardize his current placement, noting mother 'escalates in front of the minor' and the minor 'escalates and acts out.' The court recognized mother's improvements, admonished her to adhere to the visitation guidelines and rules during visits, not to bring other people to the visits or provide the minor with a cell phone, and not to discuss the proceedings with the minor. The court ordered continued supervised visitation.
"At the September 15, 2016 visitation hearing, the Agency informed the court that visits between mother and the minor were going well but for mother's difficulty controlling her emotions when separating from the minor at the end of the visits. The matter was set for a contested visitation hearing pursuant to mother's request for a set visitation schedule and no further supervision. Mother requested that the minor be present for the hearing. The court ordered the minor present at the hearing and further ordered the visitation schedule to remain the same pending the hearing.
"According to the status review report filed November 1, 2016, the social worker received a call from mother in May 2016. Mother claimed the minor was being abused in his foster home. Mother stated that, during a telephone conversation between the minor and mother, the minor reported the foster parent hit him and slammed the door on his leg, and the neighborhood boys were beating him up. Mother claimed to have pictures of the minor's injuries sent from the minor. When the social worker asked mother how she had spoken to the minor on the telephone when telephone contact was prohibited by court order, mother 'immediately escalated,' ignored the question, and demanded that the minor be removed from the foster home, threatening to 'kidnap her son' if nothing was going to be done. The social worker promised to look into the issue and call her back. The following day, the social worker was informed that the police had been called to the foster home due to allegations of abuse. The minor told police he had not been hit but that he did not want to stay in the foster home. That night, the minor was moved into a respite home.
"An Agency investigation revealed that, prior to the minor's removal, the minor got into a fight with another child in the neighborhood. He returned home angry and was argumentative, profane, and unruly with the foster parents. He locked himself in the bathroom and refused to come out. The foster parents could hear him talking to an unknown person. When the foster father tried to get the minor out of the bathroom, the bathroom door hit the minor's leg. The Agency concluded no abuse had occurred. Mother admitted having given the minor a cell phone with which the two had been communicating for some time. Mother also admitted calling the police after the minor told her to. The minor continued to claim he was abused in the foster home and did not want to live there anymore, and that he was happy in his new placement.
"The minor moved to a new placement on May 24, 2016, where he was adjusting and having minimal issues. He had difficulty adjusting to the house rules and 'milieu post visits with his mother,' at times refusing to go to football practice. The minor was moved to yet another placement on September 14, 2016, for reasons having nothing to do with the minor's conduct. He reportedly had some issues regarding communication with others in the home, but the foster parents were working with him on his manners.
"Mother reported she was attending weekly outpatient drug treatment counseling and testing randomly. Mother's counselor confirmed mother had been attending counseling and was doing well, but had recently ' 'dropped off" ' and was on the verge of being dropped from the program altogether. Mother refused to provide the social worker with her current address.
"The minor stated he wanted to see his mother and live with her. Mother stated she was able to parent her children and wanted them back. Mother's interactions with the minor during visits were reportedly appropriate and 'the two share[d] affection and kind words.' Mother continued to allow people to call into visits despite being instructed not to, and was not always receptive to the guidelines, requiring the court to enforce the Agency's position. The social worker had several discussions with mother about being overly emotional in order to avoid upsetting the minor, who was reportedly difficult to manage after visits. Mother was at first resistant but had recently shown greater self-control and was able to end the visits in a more appropriate manner. Mother's boyfriend, B.W., participated in visits. The social worker reported she was thankful for B.W.'s presence, noting he was 'a strong stabilizing factor for [mother] and often encourage[d] her to follow the rules and remain calm.'
"At the November 17, 2016 periodic review hearing, the court ordered family counseling for mother and the minor and granted the Agency discretion to arrange holiday and birthday visits with the minor.
"At the review hearing on December 15, 2016, the court found mother had shown progress in counseling and visits, ordered a Christmas visit with the minor, and granted the Agency discretion to arrange telephone visits." (In re A.M., supra, C085215.) Visitations Suspended with a No Contact Order —2017
"At the January 18, 2017 hearing, the Agency requested formal suspension of family counseling and no telephonic contact between mother and the minor. The Agency explained that mother spent the time allotted for family counseling to discuss the case with the minor and advise the minor that he did not need to listen to the foster mother, resulting in the minor's disobedient and destructive behavior upon returning to the foster home. Thereafter, the Agency terminated counseling due to the minor's statement that he no longer wanted to attend. At a January 11, 2017 visit, mother had inappropriate discussions with the minor about the case and told the minor the court had ordered telephone contact. The minor appeared to ignore mother's comments and, when informed the visit was going to be two hours, asked, '[W]hen can we go back to one hour?' Minor's counsel noted that every increase in visitation resulted in mother's bad behavior, which transferred to the minor.
"The court again admonished mother not to discuss the case with the minor, suspended joint counseling, and ordered twice monthly visitation for one hour. The court further ordered mother to either participate in individual counseling or sign a release to allow the Agency to contact her previous therapist and obtain her previous records.
"At the February 2, 2017 hearing, the Agency informed the court that the foster mother found the minor had been using a tablet to contact mother since October 2015, and that mother had told the minor she was going to get a car from the maternal grandmother in Idaho and come take him away. The foster mother also found messages from mother stating she was going to 'sneak him a phone' and instructing him to delete the messages in case the foster mother was checking. The tablet also contained messages from the minor's sibling, D.C., regarding a plan for the minor to run away from the foster home with his foster brother, be picked up by mother, and go to mother's home. Minor's counsel informed the court that the minor and his foster brother were encouraged to pack knives in their backpacks. The foster mother was reportedly concerned for her safety because mother knew where she lived.
"Minor's counsel also informed the court that mother confronted the visitation supervisor in a loud and menacing manner and accused the supervisor of lying after mother became agitated about a visitation note stating the minor was ready to go during one of the visits. Mother's counsel denied the allegations of inappropriate contact with the minor and inappropriate behavior toward the visitation supervisor and argued mother's conduct with the minor during visitation was appropriate.
"The court noted mother continued to frustrate attempts to reunify with the minor by encouraging negative behavior, having unauthorized contact with the minor, and discussing the case with the minor, all in contravention of its previous orders and admonishments. The court suspended visitation and ordered no contact with the minor and encouraged mother to engage in counseling. The court also authorized the Agency to contact the police if mother continued to encourage any action that would place the minor in danger.
"At the March 16, 2017 review hearing, the Agency informed the court that, since suspension of visitation, the minor had adjusted very well to his foster home placement and was bonded to his foster parent. The minor had indicated he did not wish to continue counseling and had not requested visits with mother, and was finally stabilized. Mother requested that visitation be reinstated, stating her belief that the minor wanted to visit her. Mother also requested the minor's presence at the next hearing. The court declined to order the minor present at the next hearing, stating the minor needed time to settle into his placement without feeling pressure from the parties. The court continued its previous order suspending visitation.
"The status review report filed April 27, 2017, stated the minor had been in his current placement since September 14, 2016. His foster family reported that he was doing well in the home and learning manners. He had made a positive adjustment, was very connected to the foster family, . . . was thriving[,] . . . [and] doing well in school. The minor's behavioral problems that surfaced during family counseling with mother had not resurfaced since family therapy ended. Thereafter, the minor's individual counseling was ended when the minor stated he did not want to go to therapy anymore and was doing fine in placement and school and did not need to continue counseling.
"Since suspension of visitation in [February] 2017, the minor had not asked the social worker about visitation with mother, nor had he mentioned it to the foster mother. It was reported that the appropriate permanent plan for the minor was guardianship or adoption; however, the minor's caretakers were unwilling to do either.
"At the May 4, 2017 review hearing, mother requested that the minor be present at a contested visitation hearing to 'chime in on what's going on.' Minor's counsel stated the minor had already been 'here several times' and reiterated that the minor had not inquired about visitation and seemed to be stable for 'once in a very, very long time.' When the court indicated it would 'leave that up to [the minor's] counsel' to determine whether or not to produce the minor, mother's counsel stated she would subpoena the minor to confirm whether he 'does want to visit with his mother.' The court said, 'Well, I won't bring him to court . . . unless I need him,' adding 'we've had his testimony on a number of occasions. I'll have the social worker speak with him. I'll have the attorney speak with him. [¶] I'm not going to have him brought to court unless there's good cause to bring him here. Let me go back over this. He's stable in his placement, and this is critical at this late date.' The court also reiterated its previous no-contact order, including social media, after learning mother posted something on the minor's social media page in violation of the no-contact order.
"The contested visitation hearing commenced on June 15, 2017. However, mother arrived late and the court continued the hearing, ordering the foster mother to return for the continued hearing. Mother requested that the minor be present 'if the Court wants foster mom present.' The court stated it would not order the minor to be present and reiterated its statements made at the previous hearing, stating it would not benefit the minor because both minor's counsel and the social worker were capable of communicating the minor's opinion. Mother again threatened to subpoena the minor.
"At the continued contested visitation hearing on July 11, 2017, mother objected to the minor's absence, informing the court she had properly subpoenaed the minor and served the Agency. Mother argued the status review report said the minor was not asked if he wanted to see her and the minor had not brought it up. Mother wanted the minor present to inquire if he wanted to see mother. The court reiterated its previous comments regarding the benefit and detriment of having the minor testify about visitation and noted minor's counsel and the Agency had previously stated it would be detrimental to the minor. The court stated it had 'taken information, testimony from the minor' and 'had information from the social worker regarding [the minor's] concerns regarding visits.' The court concluded it was not in the minor's best interest to appear and testify regarding visitation, explaining it was the minor's right to do so, something he could express himself or through his counsel or the social worker. Mother's counsel stated she would be 'forced to subpoena the minor.'
"Thereafter, the court heard testimony from the social worker and mother. The social worker testified she supervised twice-monthly visits between mother and the minor from October 2016 through January 23, 2017. She testified that, for the most part, visits went well. The interactions between mother and the minor were appropriate and they both seemed happy to see each other. However, the social worker was concerned about statements made by mother to the minor during visits regarding the foster parents or the court system in general. For example, mother talked about the no-contact order and encouraged the minor to call his attorney and ask for phone contact, and mother told the minor he did not have to listen to his foster mother. The minor responded by shutting down or simply ignoring mother's comments, and reportedly exhibited aggressive and defiant behavior toward the foster family following the visits.
"The social worker testified that the minor was doing extremely well in his third placement and, since visitation was suspended in [February] 2017, his behavior had been 'impeccable.' He was getting along well with his foster family and had been referring to his foster parents as 'mom and dad' since February 2017. He had not asked about mother or when visits with her might resume. The social worker testified she explained to the minor in late January 2017 that visitation was 'on hold' and that it 'was not his mother's choice and it was nothing to do with him.' The social worker also testified the minor never brought up the issue of adoption or guardianship with her, and the foster family was now open to guardianship or adoption of the minor, 'if that is where the case was heading.'
"Mother testified she wanted visitation reinstated. She denied having done anything to cause visits to be suspended and stated she would follow court orders and not encourage the minor to be defiant. Mother stated she was participating in counseling, but was not participating in drug court or any drug treatment. She claimed the social worker lied 'about some things' and stated the social worker 'can't state how . . . [the minor] feels' because '[t]hey did visits all of the time.' She testified that even though the minor had not asked to see her, she was certain he would ask.
"Mother further testified she did not know where the minor lived, nor did she or the minor's sibling, D.C., have a telephone number for the minor. She denied directing D.C. to threaten the foster family. Mother testified it was in the minor's best interest to return him to her custody. She stated the minor was only removed after she refused to drug test, stating the court and the parties already knew she smoked marijuana and never said anything to her about it for the first three months of the dependency proceedings.
"The court explained that its sole focus was whether visitation would be in the minor's best interest, not whether visits would benefit mother. The court noted that while mother and the minor generally got along, there had been issues. In particular, the court expressed concern regarding the minor's negative conduct toward the foster family after the visits, including aggressiveness and defiance and repeating things mother said during visits, such as, 'I don't have to talk to you' and 'I don't have to do what you say.' The court stated the minor was doing exceptionally well in placement and had not asked to visit mother. Acknowledging mother's love for the minor and the fact that mother was doing better, the court noted there had been numerous violations of the court's orders and mother still had anger issues and concluded it was not in the minor's best interest to allow visitation with mother. The court ordered that the previous order suspending visitation continue, and that mother stay away from the minor and not contact the foster family." (In re A.M., supra, C085215.)
Mother timely appealed the court's July 11, 2017 order regarding visitation and placement claiming (1) the court denied her procedural due process by suspending visitation with the minor without allowing her to fully participate in the contested proceedings, and (2) the court's order was not supported by substantial evidence.
The November 2, 2017 status review report stated the minor had been in his current foster home for one year with no issues or concerns. The minor was very connected to his foster family, and was excelling academically, socially, emotionally, and mentally. The foster family stated its desire to adopt the minor, who indicated he wanted to be adopted, he understood what that meant, and he was excited about the prospect. During an October 10, 2017 child and family team (CFT) meeting, the minor stated he wanted to stay where he was and " 'be adopted.' " The report noted the minor had not had contact with mother and had not mentioned his mother during the reporting period, and all visits had been suspended in February 2017. The report recommended adoption as the permanent plan for the minor, noting the minor's caretakers were willing to adopt and the minor was adoptable.
At the November 2, 2017 review hearing, mother was overheard telling the caregivers, "Bitch, I got you" as she exited the courtroom. The court admonished mother to stay at least 100 yards away from, and not annoy, threaten, or harass the foster parents. In response, mother stated, "Okay. It won't happen here."
On November 6, 2017, the Agency formally requested a temporary restraining order (TRO) to protect the foster parents from mother, citing the prior events on November 2, 2017, and arguing mother's statement implied she intended to carry out her threats in a different setting. The court granted the request at the hearing on November 7, 2017, at which time mother was served with the TRO.
On November 9, 2017, the Agency requested another TRO against mother. The court issued the second TRO, extending the order until the next hearing. Mother was present and was served with the TRO.
At the December 5, 2017 review hearing, the court adopted the findings and orders recommended in the November 2, 2017 status review report, continued the minor's out-of-home placement, set the matter for a section 366.26 hearing, and continued the hearing on the TRO. The court ordered mother not to have any contact with the minor and not to post anything about the minor on social media, and ordered that the TRO remain in full force and effect until the hearing. Sections 366.26 , 388 Petition and Restraining Order Hearings—2018
The section 366.26 report filed March 22, 2018, stated the minor had been residing with his foster parents for the past year and a half and had done "amazingly well." Contact between mother and the minor over the years had been "off and on." Visits were always supervised and, while some visits had gone well, others "came with increasing issues" causing visits to be suspended in February 2017. Mother reportedly undermined the minor's caregivers by telling the minor things that were contrary to the rules set by the caretakers. Mother provided the minor with a cell phone so that the minor could communicate with mother without the caretakers' knowledge and in direct contravention of the court's no-contact order. Mother discussed inappropriate subjects with the minor during visits, and allowed other family members to call during visits, both of which were prohibited. Mother also posted things about the minor on social media and attempted to make contact with the minor, all in direct contravention of the court's order. Mother's behavior toward the supervising agency, CAPC—being argumentative, belligerent, and confrontational—became so disruptive that CAPC refused to supervise visits or allow mother into the building. Mother displayed similar bad behavior when the foster family agency supervised visits, such that the agency was on the verge of discontinuing supervision of visits until the court stepped in and suspended all visits.
The minor was reportedly thriving academically, socially, emotionally, and physically with his foster family. He was aware of the adoption and was looking forward to having a permanent family. The minor had not had contact with his mother for over a year. While he reportedly seemed to enjoy contact with mother, mother's behavior "often negatively overshadowed the visits," which were eventually suspended. It was noted that the minor's placement became "much more stable" after visits with mother were suspended. The minor regularly referred to the adoption process by asking, "[I]s it over yet?"
The Agency recommended termination of mother's parental rights and placement of the minor for adoption.
On April 4, 2018, the court continued the section 366.26 hearing. The court was informed that mother continued to violate the no-contact order by making social media posts regarding the minor. The court reminded mother not to post about either the minor or the foster parents.
The status review report filed April 19, 2018, showed little change from the section 366.26 report filed a month earlier. The minor was still thriving in his foster home and had not had any contact with mother since suspension of visits in February 2017. The minor had not asked about visitation with mother, nor had he mentioned it to his foster parents or the social worker. When asked why he was not interested in seeing his mother, the minor said, " 'She will encourage me to do things I should not do.' " The minor was aware mother was attempting to contact him through social media and he was quick to report to his foster mother that he had not been responding to mother. While the minor was reportedly free to contact his maternal grandmother, his brothers, and his sister, he had not requested to do so.
On May 2, 2018, mother filed a petition pursuant to section 388 to change the court's May 22, 2014 order terminating her reunification services. Mother argued she was employed, attending counseling and AA/NA support groups, and she had a "strong bond" with the minor. She argued further that the TRO against her demonstrated there was animosity between mother and the foster family and the minor would therefore have no connection to his siblings, his aunts and uncles, his grandmother, or mother. She stated she had changed and apologized to the court for her past "disruptive and disrespectful" behavior. She also argued that the requested change would be in the minor's best interest "because he deserves to be raised by his mother and to come back home to his large loving family."
The Agency opposed mother's section 388 petition arguing the minor had not requested visitation with mother since February 2017, and that the minor was doing well and wanted to be adopted by his current caretakers. The court denied mother's petition for lack of new evidence or changed circumstances.
In an unpublished opinion filed June 12, 2018, this court affirmed the juvenile court's July 11, 2017 findings and orders, concluding the court properly exercised its discretion by denying mother's request for the minor to appear and testify in the contested proceedings, and there was substantial evidence to support the court's findings and orders regarding suspension of visitation. The remittitur issued on August 14, 2018.
On June 20, 2018, at the initial section 366.26 hearing, mother requested a continuance and that the minor be present. Noting the minor had previously expressed to the court his desire to be adopted by the foster parents, minor's counsel opposed the request, stating his concern about mother's "inability to control herself and continue to try to talk to [the minor] or make threats to foster parents who bring him." Counsel stated he would talk with the minor but was inclined to think the minor would likely not want to appear, noting the minor's appearance was not necessary for purposes of the section 366.26 hearing. The court stated the minor "has a right to be here" but could express his thoughts and wishes through his attorney and the social worker. The court added, "We have found in the past having him in court for other hearings was detrimental to the minor based on the conduct of the mother during hearings and stress he has had and numerous placements that have been ruptured before because of ongoing contact with the mother. I don't believe it will be beneficial, unless minor wants to come." The court asked minor's counsel to talk with the minor and the minor could appear if he wished. "Otherwise, his thoughts on issues can be expressed by counsel."
The Agency renewed its request for a TRO protecting the minor from mother, stating mother had contacted the minor several times online, once as recently as June 8, 2018. The Agency stated the minor first replied, "STOP!!" and then responded again with "STOP MESSAGING ME!!!!" The Agency submitted a letter written by the minor expressing his displeasure with mother trying to contact him online, arguing mother's attempts to contact the minor online were becoming emotionally detrimental to the minor. In response, mother's counsel claimed mother's online contact with the minor was coincidental, as both mother and the minor happened to be online playing video games, and mother would not contact the minor again. The Agency also argued the minor had recently been provided with a cellular telephone which was connected to his e-mail, and alleged that mother somehow hacked into the account, gathered e-mails and other information including the foster parents' financial information and home address, deleted information, and shut off the phone, making it impossible to access the phone. Mother's counsel argued mother could not have been involved as she was not sophisticated enough to be able to "highjack a phone or change an e-mail."
Acknowledging this court's recent order affirming the juvenile court's prior order that the minor was not required to appear at the hearing, and noting the "long, torturous history . . . regarding the contact between mother and minor, and the negative effect it has had on the minor, and it continues, apparently, to this day," the juvenile court ordered mother to refrain from contacting the minor by any means, stated it would sign a TRO protecting both the minor and the foster parents to that effect, and encouraged the Agency to turn over any evidence of the alleged cell phone tampering to the authorities to investigate.
On June 27, 2018, the Agency filed a court-issued TRO against mother on behalf of the minor and the foster parents. The order was set to expire "at the end of the hearing scheduled for" August 7, 2018, unless otherwise ordered.
On July 6, 2018, mother filed a motion requesting the minor's presence to testify at the section 366.26 hearing. The motion stated mother had been advised by minor's counsel that the minor did not wish to be present at the hearing; mother argued she should have the opportunity to cross-examine the minor and explore the 13-year-old minor's bond, or lack thereof, with mother.
At the August 27, 2018 section 366.26 hearing, the social worker testified that visits between mother and the minor had been suspended in February 2017 because mother's actions began to undermine and sabotage the minor's placement. She testified the Agency staff refused to supervise visits any longer after mother became increasingly verbally aggressive toward staff. Visits were suspended "[d]ue to mom's behaviors," putting the minor in the middle of mother and the foster mother.
The social worker testified the minor wanted to be adopted, understood the section 366.26 proceedings, and understood his foster parents did not plan on maintaining any contact between the minor and his biological family after adoption. She stated that, once adoption was presented as the permanent plan, the minor chose to relinquish all contact with mother, stating, "it's too much drama." The minor was upset by mother's repeated attempts to contact him through social media in violation of restraining orders prohibiting her from doing so. The social worker testified that, despite her best efforts to address issues and resume visitation, mother continued to cause new issues by constantly "not sharing, over-sharing, being inappropriate, undermining placement."
Mother testified she believed visitation was suspended in February 2017 not because of her interactions with the minor but rather due to a single incident when she refused to show the supervising social worker a picture she gave to the minor during visitation in February 2017. Mother admitted providing the minor with a cell phone so he could communicate with her without the caretakers' knowledge. She claimed the prior foster parent had given the minor the phone over three years ago and then later accused mother of giving it to him.
Mother stated that, from the onset of the dependency case, she had a close relationship with the minor, who wanted to reunify with her and did not want to be adopted. She could not explain why the minor now wanted to be adopted by his foster family.
Mother's counsel argued it was necessary for the minor to be present and testify at the section 366.26 hearing because it was unclear why the minor initially wanted to be with mother and wanted to reunify and then "all of a sudden it changed." The Agency argued the minor was not required to be present when his attorney could adequately represent his wishes pursuant to section 349, subdivision (c), and it would not be in the minor's best interest to be present. Minor's counsel agreed with the Agency, noting it would not be in the minor's best interest to be present "given mother's past behavior" and the minor's indication that he did not want to be present, noting the minor "became physically ill" when the subject of him having to testify was raised. Minor's counsel confirmed that, since March 2017, the minor had not changed his position or indicated a desire to be present.
Section 349, subdivision (c), provides that, if the minor is present at the section 366.26 hearing, "the court shall inform the minor that he or she has the right to address the court and participate in the hearing and the court shall allow the minor, if the minor so desires, to address the court and participate in the hearing."
The court acknowledged mother's right to due process but denied her request finding she did not have an absolute right to cross-examine the minor, the minor's attorney and the social worker could provide the court with the necessary information, the minor had the right to be present but did not have to exercise that right, and it was not in the minor's best interest to be present.
After hearing argument from counsel, the court terminated mother's parental rights and identified adoption as the permanent plan. The court granted the minor's request to continue the TRO against mother until August 27, 2021 (three years), ordered mother not to contact the minor by any means, and denied mother's request for a "good-bye" visit.
Mother filed a timely notice of appeal.
DISCUSSION
1.0 Order Denying Request to Compel Minor to Testify
Mother contends the trial court violated her right to due process by denying her motion to compel the minor's testimony at the section 366.26 hearing. In particular, mother claims she had a right to cross-examine the minor before her parental rights were terminated, and the court's denial of her motion precluded her from proving the applicability of one or more exceptions to adoption.
The Agency argues there was sufficient evidence to support the juvenile court's findings and orders, and the court acted within its discretion in denying mother's request for the minor to testify.
As we explain, there was substantial evidence to support the court's denial of mother's request for the minor to testify.
"Parents have a fundamental liberty interest in the care, custody, and management of their children. [Citation.] The state and federal Constitutions guarantee no state shall deprive parents of this interest in their children without due process of law, which includes the right to confront and cross-examine witnesses in dependency proceedings." (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 777.)
While mother has no express constitutional right to confrontation and examination of witnesses, a right which is confined to criminal proceedings (In re Mary S. (1986) 186 Cal.App.3d 414, 419), she has a statutory due process right in a dependency proceeding to cross-examine and confront witnesses (§ 341; Mary S., at p. 419; In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1085 (Jennifer J.); In re Amy M. (1991) 232 Cal.App.3d 849, 864). We review a claim asserting denial of a parent's due process right to call a witness to testify for harmless error. (Amy M., at pp. 867-868.)
Mother claims section 366.26, subdivision (h)(2) and (3), contemplate that a minor "shall be present in court" at the hearing and his testimony "may be taken" during that hearing. She notes this language eliminated the presumption that the child "shall not be present unless the minor so requests or the court so orders" found in earlier versions of the statute. (See former § 366.26, subd. (f)(1), italics added.) She also claims subdivision (h)(1) of that section requires the court to consider the wishes of the child at all section 366.26 proceedings, arguing the "best, most reliable way to consider the child's wishes is through the child's direct statements in testimony." We are not persuaded.
Mother's rather self-serving recitation of the current version of the statute omits key language which provides that the mandate requiring the child be present in court at the section 366.26 hearing is only applicable "if the child or the child's counsel so requests or the court so orders" (§ 366.26, subd. (h)(2), italics added), neither of which occurred here. Neither the minor nor his counsel requested the minor be present at the hearing. Instead, there was clear evidence the minor did not want to be present at the hearing and "became physically ill" when the subject of possibly having to testify was raised. There was also clear evidence the minor did not want to have contact with mother.
Next, mother claims section 341 and California Rules of Court, rules 5.526(d) and 5.534(g)(1) give parents the right to compel the attendance of witnesses by issuance of legal process, something she did via her oral and written motions requesting the minor's appearance and testimony. While mother does have the right to seek the minor's appearance and testimony, that right is tempered by the juvenile court's power to refuse that request in order to protect the best interests of the minor. (Jennifer J., supra, 8 Cal.App.4th at p. 1089; In re Juan H. (1992) 11 Cal.App.4th 169, 172-173.) "[T]he juvenile court judge in a proper case may refuse to require the attendance and testimony of the child who is the subject of the litigation. This power derives . . . from a recognition of the overriding objective of the dependency hearing—to preserve and promote the best interests of the child. It would be a perversion of the procedure to impose upon it a requirement that the child's testimony always be presented, regardless of the trauma resulting to the child therefrom, and regardless of the necessity of such testimony in the resolution of the issues before the court. The refusal of the court to issue process requiring the attendance and testimony of the child should, assuredly, be a decision made only after a careful weighing of the interests involved. . . . '[F]undamental rights are implicated in dependency proceedings, and they cannot be abrogated with impunity.' Where, however, the child's desires and wishes can be directly presented without live testimony, where the issues to be resolved would not be materially affected by the child's testimony, and where it is shown that the child would be psychologically damaged by being required to testify, we hold the juvenile court judge has the power to exclude such testimony." (Jennifer J., at p. 1089, fn. omitted.)
Further rule references are to the California Rules of Court.
Here, the minor's desires and wishes regarding contact with mother changed over time due to mother's unrelenting inappropriate and bad behavior toward the minor, the minor's caretakers, the social workers, and others, and her repeated violation of the court's express orders not to have unauthorized contact with the minor by any means. The minor expressed to his legal counsel and the Agency his displeasure with mother trying to contact him online, his desire not to have contact with mother, his desire to be adopted by his foster parents, and the fact that the prospect of testifying caused him to become "physically ill." That is, the minor's wishes, desires, concerns, and understanding regarding no future contact with mother and anticipated adoption by his caregivers, as well as his desire not to be present at the hearing or to testify, had been and were directly and adequately presented to the court by the minor's counsel and the testimony and reports of the social worker. Thus, the issues to be resolved would not be materially affected by the minor's testimony, particularly in light of the evidence that the minor would be psychologically damaged by being required to testify.
Mother contends the representations and opinions of minor's counsel to the court could be clouded by counsel's own subjective judgment as to what was in the minor's best interests. There was, however, no evidence of that in the record. Instead, the record demonstrates that the representations by minor's counsel were consistent with the social worker's reports and testimony, and counsel made clear he was recounting his direct conversations with the minor, rather than making his own judgments and conclusions.
Mother claims the only report before the court was the April 4, 2018 section 366.26 report which, according to mother, contained very little evidence of the minor's wishes and desires and did not address whether the minor understood adoption would terminate his relationship with mother. Mother mischaracterizes the significant amount of evidence before the court at the section 366.26 hearing. In addition to the section 366.26 report, previously-filed reports were also part of the record, as well as witness testimony. In particular, the social worker testified at the section 366.26 hearing regarding the minor's direct statements to her, namely that the minor wanted to be adopted, he understood the section 366.26 proceedings, and he understood his foster parents did not plan on maintaining any contact between the minor and his biological family after adoption, and that the minor chose to relinquish all contact with mother due to there being "too much drama." The social worker also informed the court of the minor's increasing displeasure with mother's repeated attempts to contact him through social media despite restraining orders prohibiting her from doing so. The record was replete with evidence of mother's bad behavior and the impact that had on visitation with the minor and on the minor's resulting emotional state.
Mother claims the minor's testimony was necessary to flesh out the reasons why the minor made "a 180-degree turn" from not wanting to be adopted to wanting to be adopted and wanting the process to "be over with already," and whether that decision was "influenced" by anyone. As a preliminary matter, mother's suggestion that the minor's change of heart happened overnight is not borne out by the record. As previously discussed, mother's bad behaviors over time undermined not only the visitation process but also her relationship with the minor. She would have been hard pressed to convince the court that the minor's decision to choose adoption was "influenced" by someone else when the evidence suggested his gradual change of heart was influenced by mother's own continuous bad behavior. In any event, the court had before it evidence of the minor's wishes and desires and, under these circumstances, it was neither necessary nor relevant to compel the minor to testify to explain those wishes and desires.
Next, mother claims there was no evidence the minor was likely to suffer psychological injury if forced to testify other than minor's counsel's statement that the minor became "physically ill" at the prospect of testifying, which mother argues was not evidence and lacked context. (Citing In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.) The claim is untenable.
Legal counsel in a dependency proceeding is charged with the representation of the child's interests and, to that end, counsel has the authority to "make recommendations to the court concerning the child's welfare, and participate further in the proceedings to the degree necessary to adequately represent the child." (§ 317, subd. (e)(1).) Where, as here, the minor is older than four years of age, counsel is required to "interview the child to determine the child's wishes and assess the child's well-being" and "advise the court of the child's wishes." (§ 317, subd. (e)(2).) In that regard, the role of an attorney for a child subject to dependency "does not differ significantly from that of the guardian ad litem," who is tasked with " 'obtain[ing] firsthand a clear understanding of the situation and needs of the child' and 'mak[ing] recommendations to the court concerning the best interest of the child.' [Citation.]" (In re M.F. (2008) 161 Cal.App.4th 673, 679.) Here, minor's counsel was doing exactly that when he represented to the court that, based on his discussions with the minor, it was clear the minor did not want to testify and became physically ill at the mere mention of that prospect.
Finally, mother argues the minor's testimony was relevant to prove two possible reasons termination of parental rights would be detrimental to the minor: (1) that mother maintained regular visitation and contact and the minor would benefit from continuing the relationship, and (2) that the minor, who was 12 years or older, objected to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i) and (ii).) The record belies both claims. The minor's testimony would not help mother prove she maintained regular visitation with the minor when visitation was suspended in February 2017 due entirely to her own negative behavior and she had not seen the minor for well over a year prior to the section 366.26 hearing. Similarly, the minor did not want to appear and testify, as evidenced not only by the representations of his attorney but also by the fact that the minor was not present at the hearing. His wishes and desires—that he wanted to be adopted by his foster parents and that he understood the section 366.26 proceedings—were made clear to the court via the representations of minor's counsel and the testimony and reports of the social worker. Thus, mother cannot prove the minor objected to termination of her parental rights.
The juvenile court did not err in denying mother's motion to compel the minor's appearance and testimony at the section 366.26 hearing.
2.0 Issuance of Temporary Restraining Order
Mother contends the three-year restraining order issued by the juvenile court prohibiting her from having contact with the minor or the foster parents was not supported by substantial evidence. The claim lacks merit.
Section 213.5, subdivision (a) permits a juvenile court to issue an order "enjoining any person from . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, . . . or disturbing the peace of the child . . . ." (§ 213.5, subd. (a); see In re N.L. (2015) 236 Cal.App.4th 1460, 1466 (N.L.).) " 'Issuance of a restraining order under section 213.5 does not require "evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child." [Citation.] Nor does it require evidence of a reasonable apprehension of future abuse.' " (N.L., at p. 1466.)
Rule 5.630 provides that, "[a]fter a petition has been filed under section 300, . . . and until the petition is dismissed or dependency or wardship is terminated, . . . the court may issue restraining orders as provided in section 213.5." (Rule 5.630(a).) Rule 5.630(c) provides, "The definition of abuse in Family Code section 6203 applies to restraining orders issued under . . . section 213.5." Family Code section 6203, subdivision (a)(4) defines "abuse," in part, as any behavior that could be enjoined pursuant to Family Code section 6320, including "harassing," "contacting, either directly or indirectly, by mail or otherwise," and "coming within a specified distance of" the protected party, among other things. (Fam. Code, §6320, subd. (a).)
Proof to support a request for a restraining order in a dependency proceeding "may be by the application and any attachments, additional declarations or documentary evidence, the contents of the juvenile court file, testimony, or any combination of these." (Rule 5.630(f)(1).) "If the juvenile case is dismissed, the restraining order remains in effect until it expires or is terminated." (Rule 5.630(i).) The duration of such orders is limited to three years. (§ 213.5, subd. (d)(1).)
"If there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed" on appeal. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211; N.L., supra, 236 Cal.App.4th at p. 1466.)
Substantial evidence supports the juvenile court's issuance of the three-year restraining order following the section 366.26 hearing. The juvenile court first admonished mother in November 2017 after mother was overheard to say, "Bitch, I got you," to the caregivers while exiting the courtroom. When ordered by the court not to threaten the caregivers, mother responded, "Okay, it won't happen here." As a result of that exchange, the court issued a TRO on November 6, 2017, protecting the foster parents from mother. A month later, on December 5, 2017, the court ordered the previous TRO to remain in full force and effect until April 2018 and ordered mother not to contact the minor or post anything about the minor on social media.
In April 2018, the court was informed that mother continued to violate the no-contact order and instructed her not to post about either the minor or the foster parents online. Mother violated that order and, in June 2018, the Agency was forced to renew its request for a TRO to protect the minor from mother's continued attempts—as recently as June 8, 2018—to contact the minor online, which behavior was reportedly becoming emotionally detrimental to the minor. The court again ordered mother to refrain from contacting the minor by any means and, on June 27, 2018, issued another TRO against mother on behalf of both the foster parents and the minor. Thereafter, at the August 2018 section 366.26 hearing, the court was informed that the minor was upset by mother's repeated attempts to contact him and "became physically ill" at the prospect of having to appear in court and testify. The court ordered that the existing TRO remain in effect until August 2021, three years from the date of issuance.
The record amply demonstrates the progression of mother's aggressive behavior towards the foster parents and her continued attempts to contact the minor. When those attempts were revealed at the initial section 366.26 hearing date in June 2018, mother's counsel claimed mother's online contact with the minor was coincidental and would not happen again. However, counsel's characterization of just one of mother's attempts to contact the minor online as pure happenstance, and his tepid assurance that mother "won't contact minor again," was less than reassuring given mother's continuous attempts to contact the minor in total disregard of repeated admonishments from the court to have no contact, and despite the initial issuance of, and extension of, the TRO to protect both the foster parents and the minor from mother, particularly when mother's attempts were disturbing, bothersome, and harassing to the minor.
Mother first argues the TRO issued on June 27, 2018, expired on August 7, 2018, and was not extended. Therefore, there was no existing TRO to maintain at the August 27, 2018 continued hearing, and no additional evidence presented to the court to support issuance of a new TRO. The claim lacks merit.
At the June 20, 2018 hearing, the court granted the request of mother's counsel to continue the section 366.26 hearing to August 7, 2017, to allow counsel time to meet with mother. At that time, the Agency renewed its request for a TRO protecting the minor from mother's continued attempts to contact him. The court-issued TRO against mother on behalf of the minor and the foster parents, filed on June 27, 2018, was set to expire "at the end of the hearing scheduled for" August 7, 2018. (Italics added) However, the August 7, 2018 hearing was continued to August 27, 2018. Thus, the existing TRO remained active until the completion of the section 366.26 hearing originally continued to August 7, 2018, and thereafter continued again to August 27, 2018.
Next, mother claims there was no evidence and no written request under penalty of perjury presented at the August 27, 2018 hearing to show that either the minor's or his foster parents' safety might be in danger from mother. We reject the claim. Minor's counsel informed the court, at the section 366.26 hearing on August 27, 2018, that the minor requested that the existing TRO be continued in full force and effect because the minor wanted to be able to participate in online social media but was "worried about the mom continuing to contact him" as she had done repeatedly in the past. In ruling on the request to continue the TRO, the court was entitled to consider that information, as well as its file, which contained mother's history of attempting to contact the minor and violating the court's numerous admonishments and orders not to do so, and the prior declaration signed by the social worker under penalty of perjury setting forth the bases of the Agency's request for continuance of the TRO. (See rule 5.630(f)(1).) Given that it was not necessary for the juvenile court to find either evidence that mother previously " ' "molested, attacked, struck, sexually assaulted, stalked, or battered the child" ' " or " 'evidence of a reasonable apprehension of future abuse' " (N.L., supra, 236 Cal.App.4th at p. 1466), there was a sufficient basis under the circumstances for the court to conclude continuance of the TRO was necessary to protect the minor and the foster parents.
In any event, mother argues that, in order to prove the need for a TRO under section 213.5, a party must prove the safety of the minor and the foster parents is in jeopardy because "[s]ection 213.5 is analogous 'to Family Code section 6340, which permits the issuance of a protective order under the Domestic Violence Prevention Act [[DVPA] (Fam. Code, § 6200 et seq.)] . . . if "failure to make [the order] may jeopardize the safety of the petitioner . . . ." ' " (N.L., supra, 236 Cal.App.4th at p. 1466, fn. added; see Fam. Code, § 6340, subd. (a)(1).) We are not persuaded.
Family Code section 6340 provides in relevant part that the court "may issue any of the orders described in Article 1 (commencing with Section 6320) after notice and a hearing. When determining whether to make any orders under this subdivision, the court shall consider whether failure to make any of these orders may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought. (Fam. Code, § 6340, subd. (a)(1).) --------
While section 213.5 may be analogous to the DVPA in some fashion, it differs from Family Code section 6340 in that nothing in the language of section 213.5 requires a finding that the protected person's safety may be jeopardized in the absence of an order. In any event, the DVPA authorizes issuance of an order " ' "to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved" upon "reasonable proof of a past act or acts of abuse." ' " (Sabato v. Brooks (2015) 242 Cal.App.4th 715, 723; see id. at p. 725.) For purposes of the DVPA, "abuse" includes "behavior that has been or could be enjoined pursuant to Section 6320" (§ 6203, subd. (a)(4)), such as "contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party . . . ." (§ 6320, subd. (a), italics added; see Sabato, at p. 723; Phillips v. Campbell (2016) 2 Cal.App.5th 844, 852-853.) In that regard, the court in Sabato concluded that, "[e]ven if the allegations of threats and/or violence were not considered [by the trial court], [defendant's] unilateral, unwanted and harassing contacts supported the issuance of the domestic violence restraining order." (Sabato, at p. 725.) The same is true here. Even in the absence of any evidence that the physical safety of the minor might be in jeopardy, there was an abundance of evidence of mother's unilateral, unwanted, and harassing attempts to contact the minor.
Mother argues the only basis for the TRO was the "unsupported allegation" that mother hacked the minor's cell phone "in order to contact the minor and access the foster parents' personal and financial information," as set forth in a statement signed by the social worker under penalty of perjury. She claims she had no ability to hack into the minor's phone and no reason to do so, as to do so would have been contrary to her interest in having future contact with the minor.
As previously discussed, the court considered the minor's request that the TRO be continued based on the minor's fear that mother might continue her repeated attempts to contact him. While that, in and of itself, would have sufficed, the court also had in mind the evidence in the court's file, including the prior declaration signed by the social worker under penalty of perjury setting forth the bases of the request for continuance of the TRO, the reports of the social workers, and the testimony of various witnesses, all of which demonstrated mother's history of "abuse" (i.e., her bad behavior toward the foster parents and staff and her repeated attempts to contact the minor in violation of the court's numerous admonishments and orders not to do so) and its negative impact on the minor. Those facts provided a sufficient basis upon which to continue the TRO against mother. Once mother's parental rights were terminated and the juvenile dependency case dismissed, the TRO remained in effect until its expiration or termination. (Rule 5.630(i).)
The court's issuance of the three-year TRO was supported by substantial evidence.
DISPOSITION
The juvenile court's orders are affirmed.
/S/_________
BUTZ, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MURRAY, J.