Opinion
H036794
10-06-2011
In re M.J., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. E.C., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. JD19971)
Appellant E.C. (the mother) appeals from the juvenile court's order suspending her visitation with her daughter M.J. (the child) during the reunification period. The mother contends that the juvenile court's order cannot be upheld because there was no evidence that the supervised, therapeutic visits were detrimental to the child's physical safety. She concedes that there was evidence that the visits were detrimental to the child's emotional health, but she maintains that such detriment is insufficient to justify suspending visitation during the reunification period. The mother also contends that the juvenile court erroneously failed to satisfy its duty of inquiry regarding the child's Indian ancestry. We conclude that the juvenile court found, and the evidence supports its finding, that continued visitation jeopardized the child's safety. We also reject the mother's contention regarding the juvenile court's duty of inquiry.
I. Background
In January 2010, the Santa Clara County Department of Family and Children's Services (the Department) detained the child, who was then five years old, and filed a petition alleging that she came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b). The petition alleged that the child had suffered a serious injury to her face and had reported that the mother had caused the injury by kicking her in the face with her shoe. The mother did not seek medical attention for the child's injury.
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.
Both the mother and the child were developmentally delayed, and the mother had "anger management issues, which need to be addressed." The mother "can be impulsive, and show poor judgment, and becomes angry quickly." The child had "special needs" arising from her diagnosed "Impulse Disorder" and other behavioral and developmental issues. She engaged in "impulsive and defiant behavior," and was "emotionally needy and defensive." The child had significant language delays and could be difficult to understand.
At the detention hearing, the child was placed in foster care, and the court ordered that the mother have twice weekly two-hour supervised visits with the child. The social worker reported in the February 2010 jurisdictional/dispositional report that the child "is very attached to her mother and it is apparent that they love each other very much." The mother and the child were having "appropriate" visits, and the child was "excited to see her mother and often mentions that she wants to go home with her mother." The mother was visiting the child "fairly consistent[ly]," but she had missed a few visits. When the mother failed to show up for a visit, the child became "very upset and distraught."
At the March 2010 jurisdictional hearing, the mother submitted on the social worker's reports, and the court took jurisdiction. In March 2010, the social worker spoke to C.W., "a maternal second cousin by marriage," who expressed an interest in providing a placement for the child. C.W. resided in San Joaquin County. In late April 2010, after the child's foster mother decided that she could no longer care for the child, the Department decided to place the child with C.W. and her husband. The mother opposed this placement. She did not want the child placed with any of her family members because she "does not trust her family." The mother also did not want the child placed with C.W. and her husband because she did not believe they would give the child adequate attention since they had two other children. The W. family began visiting the child in May 2010, and the visits went well. The Department intended to transition the child to placement with the W. family after the school year ended.
C.W. was elsewhere described as a "maternal first cousin[] twice removed . . . ."
At the May 2010 dispositional hearing, the court removed the child from the mother's custody, placed the child in foster care, and ordered reunification services for the mother. The court continued the prior visitation order. Shortly after the dispositional hearing, the child was removed from the foster home due to the child's "disrespectful, impulsive, and aggressive" behavior. The child was placed in an emergency satellite home. Two weeks later, after the child's school year had ended, the Department sought to place the child with the W. family. The child was placed with the W. family in late June 2010. The mother challenged the placement decision, but the court rejected her challenge. Although C.W. was "very cooperative" in making sure that the child was available for visits with the mother, the mother's visitation became "sporadic," and it was difficult for the social worker to make contact with the mother.
The child's father was in state prison. He waived reunification services, and he is not involved in this appeal.
In August 2010, the social worker reported that the child was doing well in the new placement with the W. family. The child told her therapist in August 2010 that her mother had engaged in sexual behaviors with her when the child was in the mother's custody.
In October 2010, in her report for the six-month review hearing, the social worker noted that the child was continuing to improve in the new placement. She had begun school, her speech and language skills were improving, and her mental status appeared to have improved. The social worker expressed concern about the child's unusual interest in and knowledge of sexual activities.
Beginning in October 2010, the child began refusing to visit with the mother. The child would refuse to leave the foster parents' car after arriving at the visitation location. Changing the visitation location to a park was temporarily successful, but the child soon resumed refusing to leave the car. At the mother's request, the location was changed again to a McDonald's. However, the child continued to refuse to leave the car. The child seemed "tense" and "almost scared" when the mother was present.
At the November 2010 six-month review hearing, the court continued reunification services to the mother. No change was made to the frequency or length of the mother's visits, but the visits were ordered to transition to "therapeutic visitations," which meant that a therapist would be present for the visits. However, despite subsequent repeated attempts, the social worker and the therapist were never able to persuade the child to leave the car for these therapeutic visits. The social worker had never known a child to so adamantly refuse to visit a parent.
In late January 2011, the child's attorney filed a section 388 petition seeking a termination of visitation with the mother "as it is detrimental to the minor." The court ordered a hearing on the petition for February 8, 2011. On February 8, the court continued the hearing on the section 388 petition and suspended visitation for one week pending the continued hearing. The court twice more continued the hearing and continued the temporary suspension of visitation. The hearing did not occur until April 11, 2011.
In her report for the section 388 hearing, the social worker stated that the child had continued to refuse to visit with the mother since November 2010. The child remained in the car, and would not speak to the mother or even make eye contact with her despite the encouragement of both the social worker and a therapist. The child would "cringe" and try to pull away if her mother tried to hug her. The mother attempted to visit with the child in the car for 10 to 15 minutes on several occasions. After three of these "car-visit" attempts to have therapist-assisted visits, the fourth visit was cancelled after the mother was 30 minutes late and did not call.
Nevertheless, the Department did not initially support the child's section 388 petition. It recommended a temporary four-week suspension of visits to allow the issues to be dealt with in therapy. The Department conceded that the visits were "emotionally detrimental" to the child, but did not think the visits "are negatively impacting her overall daily functioning." The child said she did not want to visit her mother because she "didn't like her." "There were no obvious signs of distress at school or in the home prior to and after her visits with [the mother], but on the days she knew she was going to visit with [the mother], she would tell foster mother that she didn't want to visit, she just wanted to go home and that she was not going to get out of the car." Several locations had been tried for visits, but it made no difference.
The child's therapist testified at the section 388 petition hearing that he had been working with the child for two and a half years. Between August 2010 and February 2011, the child repeatedly told him that she had observed sexual acts and that the mother had kissed her private parts. Since October 2010, the child had been telling him that she did not like to visit her mother, that she is "afraid" that her mother will yell at her or hit her, and that "she gets very upset" when visits are attempted. The child was "more oppositional when she knows that she's going to visitation."
C.W. testified that the child asked her to kiss her private parts and told C.W. that her mother and her mother's boyfriend had done so. C.W. told the child that this type of behavior was wrong. C.W. thought that it was after the child realized that this behavior was wrong that she "started not wanting to see her mother." The child had also told C.W. that she had seen her mother having sex. The child gave graphic descriptions of the sexual activities that she had seen and acted out the events. C.W. testified that the child told her that she "hates her mom."
The social worker initially testified at the hearing that she did not believe the visits were detrimental to the child because the child was "completely fine" before and after the visit. The child was only upset during the visit. However, the social worker subsequently testified that she believed it was detrimental to the child to "reintroduce her to that person over and over again" who the child believed had sexually abused her.
An expert testified for the child that he had conducted an "assessment" of the visitation between the child and the mother, which included observing a "car-visit" in February 2011 and interviewing the child and others. He believed that requiring the child to visit the mother "creates a lot of confusion . . . and prevents her from moving forward in her healing path" because "she's being forced to see the person she accuses" of sexual abuse. He believed that forcing the child to confront the mother created the risk that the child would use other coping mechanisms besides "shutting down," such as trying to hurt herself.
The minor's trial counsel argued that the visits put the child "at serious risk of emotional and physical harm . . . ." At the end of the hearing, the Department altered its position and supported the child's petition. The juvenile court found that the visits "are detrimental to this child." "[A]t this time . . . her coping mechanism is to shutdown [sic], but there is the exposure to the risk that they could e[s]calate into a more self harming behavior." The court "suspended" the mother's visits with the child. The mother timely filed a notice of appeal from the court's order suspending visitation.
II. Discussion
A. Suspension of Visitation
"[A]ny order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶] (1)(A) Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. [¶] (B) No visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a).)
The mother relies on In re C.C. (2009) 172 Cal.App.4th 1481 (C.C.)and contends that the juvenile court was not permitted to suspend visitation in the absence of a threat to the child's physical safety. The Department argues that the C.C. court incorrectly interpreted the statute, and the juvenile court was permitted to suspend visitation if there was a threat to the child's emotional well-being. We recognize that C.C. has been criticized (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357), but we need not take a position on this issue because the juvenile court's ruling here was proper even under the C.C. court's analysis.
C.C. had been detained due to physical abuse by his mother. (C.C., supra, 172 Cal.App.4th at pp. 1483-1484.) At the detention hearing, she was granted monitored visitation. (C.C. at p. 1484.) During a subsequent monitored visit, C.C. "refused to engage with his mother" and "became extremely upset." (Ibid.)C.C.'s therapist reported that C.C. had told him that he did not want to visit his mother and "threatened to harm himself and [his mother] if forced to visit her." The Department sought and obtained a temporary suspension of visitation pending an evidentiary hearing. At the hearing, evidence was introduced that C.C. had tried to leave a visit, and, after being forced to remain, had banged his head against a wall and cried. (C.C. at pp. 1484-1485.) The court found that continued visitation would be detrimental to C.C. and suspended visitation. (C.C., at p. 1485.) But, after obtaining an evaluation from a psychologist, the court ordered monitored therapeutic visitation. (C.C., at pp. 1485-1486.) One "experimental" monitored visit occurred, but it was "a disaster." (C.C., at p. 1486.) C.C., who had participated in six "conjoint therapy sessions" with his mother, refused to participate in any further visits with his mother. (Ibid.) The court suspended conjoint therapy. (C.C., at p. 1487.) The Department and C.C. asked the court to make a detriment finding and suspend all visitation. (Ibid.) The court found that further visits would be detrimental because they would "not contribute to his well-being" and suspended visitation pending the next review hearing. (C.C., at pp. 1487, 1490.)
C.C.'s mother challenged the juvenile court's order suspending visitation. (C.C., supra, 172 Cal.App.4th at p. 1488.) The Court of Appeal found merit in her challenge. "[W]hen reunification services have been ordered and are still being provided, as they were in this case, some visitation is mandatory unless the court specifically finds any visitation with the parent would pose a threat to the child's safety." (C.C., at p. 1491.) "This strict legislative limitation on suspending or denying all parental visitation during the reunification period is no accident: Without visitation of some sort, it is virtually impossible for a parent to achieve reunification." (Ibid.) "Were section 362.1, subdivision (a)(1)(B), to permit a suspension of visitation based on a finding of detriment to the child's overall well-being, we would certainly conclude the court's order was supported by substantial evidence. [¶] It does not, however; and, notwithstanding the court's effort, we cannot tell from the record whether the court's reasoning was properly tethered to the statutory directive mandating parental visitation unless there exists substantial evidence of a threat to the child's safety. There is a reference in the record to [the father's] concern C.C. might harm himself, but this isolated reference does not appear to have been central to the court's reasoning." (C.C., at p. 1492.) Because the juvenile court did not appear to have based its order on a threat to C.C.'s safety, the Court of Appeal concluded that the juvenile court had applied "an incorrect standard," and its suspension of visitation could not be upheld. (C.C. at pp. 1492-1493.)
In the case before us, the mother repeatedly asserts that the juvenile court's order must be reversed because there was no evidence that "[the] mother posed a threat to [the child's] physical safety during supervised visits." (Italics added.) She gravely misstates the standard. As the Court of Appeal explicitly acknowledged in C.C., visitation may be found to "jeopardize the safety of the child" under section 362.1 if there is evidence that continuing the visits will create a risk that the child will harm himself or herself. (C.C., supra, 172 Cal.App.4th at p. 1491.) The question is not merely whether the child's safety is jeopardized during the visits but whether the child's safety is jeopardized by the visits. Ordinarily, we review the juvenile court's ruling on this issue for substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
The mother contends that there is no evidence here that the child "might harm herself" if visits continued. She argues that the child's "emotional discomfort" did not "jeopardize the safety of the child." We disagree. The record contains substantial evidence that continued visits will jeopardize the child's safety. The child's expert testified that continuing to force the child to visit the mother created the risk that the child, who was clearly unable to cope with the visits, "can move into other ways to cope with it. It could be negative in hurting others or damaging things or internalizing when they want to hurt themselves, cut their body or continue or make it wors[e]." The expert's testimony that continued visitation created a risk that the child would "hurt" herself or "cut [her] body" was ample evidence that her safety would be jeopardized.
The mother claims that the juvenile court based its order solely on the child's "best interest" rather than on a finding of jeopardy to the child's safety. Not so. The child's attorney asked the court to find that continued visits would put the child "at serious risk of emotional and physical harm . . . ." (Italics added.) The juvenile court explicitly found: "At this time . . . her coping mechanism is to shutdown [sic], but there is the exposure to the risk that they could e[s]calate into a more self harming behavior." (Italics added.) In other words, the court found that continued visits created a risk that the child would harm herself. Obviously a risk that the child will harm herself "jeopardize[s] the safety of the child." The juvenile court did not fail to comply with section 362.1.
The mother further contends that the juvenile court abused its discretion in failing to come up with "a more thoughtful, creative solution to the visitation problem" other than suspending visitation. The child started refusing to visit the mother in October 2010. The court promptly responded in November 2010 by directing that the visitation transition to therapeutic visits. The Department made numerous attempts to encourage the child to visit with the mother during the three-month period that followed including changing the location of the visits and involving a therapist. These changes made no difference. There is no indication in the record that any other change had the slightest prospect for success in overcoming the child's intransigent refusal to visit with the mother. Given that the 12-month review hearing was scheduled to occur less than a month after the hearing on the child's section 388 petition, the juvenile court could have reasonably concluded that a suspension of visitation, at least in the interim, would allow the Department to explore any other options without the risk to the child's safety that continued visitation posed. The juvenile court's conclusion was not an abuse of its discretion.
The mother also argues that the juvenile court was required to deny the petition because the petition failed to make a showing of a change of circumstances. This contention has no merit. When the court originally ordered visitation, the child was not refusing to visit the mother. After the child began refusing to visit the mother, the court ordered that the previously ordered visitation should transition to therapeutic visits. The attempts at therapeutic visitation were unsuccessful. The child's refusal to visit with the mother coupled with the failure of the attempts at therapeutic visitation were a change of circumstances.
B. Inquiry Regarding Indian Ancestry
The mother contends that the juvenile court erred in failing to make an adequate inquiry into the child's Indian ancestry.
1. Background
Shortly after the child was detained in January 2010, the social worker inquired of the mother about the child's Indian ancestry. The mother told the social worker that she "believed that there was Native American heritage on the maternal grandfather's side of the family, but did not know the name of the tribe." She identified the maternal grandfather as W.C. and "stated that she did not have further information at this time." The paternal grandmother reported that "she believed there was Choctaw heritage in her family." The social worker asked both the maternal grandfather and the paternal grandmother to provide further information to her about the child's Indian ancestry, and they both said they would do so.
At the detention hearing, the court found that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) may apply. The social worker promptly made numerous attempts to obtain further information about the child's Indian ancestry from the mother, the father, and the paternal grandmother. The mother refused to assist her and would not provide contact information for the maternal grandfather. The paternal grandmother provided information about the father's ancestry, but, "[d]espite attempts, no further information was able to be garnered from the maternal side of the family." Instead, the social worker obtained "information regarding maternal family members . . . from prior case files." The mother had herself been a dependent child, and she had been involved in a prior dependency matter involving another of her children.
The father professed no knowledge of whether he had any Indian ancestry.
In February 2010, the Department sent notices to 11 Apache and Choctaw tribes. These notices provided information about the mother's parents and grandparents and about the father's ancestors. All but one of the tribes responded that the child was not eligible for enrollment. No response was received from the remaining tribe despite the social worker's attempts to follow up with that tribe.
2. Analysis
"The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child . . . if the child is at risk of entering foster care or is in foster care." (§ 224.3, subd. (a).) "The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe . . . ." (§ 224.3, subd. (b).)
The mother, noting that the definition of " 'extended family' " includes a "first or second cousin" (25 U.S.C. § 1903, subd. (2)), complains that the record does not reflect that any inquiry was made of C.W. to determine if she had any information about the child's Indian ancestry. She claims that "the law" requires that "first and second cousins must be asked about the child's potential Native American ancestry." We disagree.
The only case she cites in support of this proposition, In re S.M. (2004) 118 Cal.App.4th 1108 (S.M.),concerned the failure of the Department to include readily available information about the mother and the paternal great-grandmother in the notices. (S.M., at p. 1116.) The closest S.M. comes to the claim made by the mother is the court's statement that "[t]he social worker was required to investigate whether this information was available [citation], or report no family member knew the information required by 25 Code of Federal Regulations part 23.11 [required content of notice]." (S.M., at p. 1117.)
While the statutory framework imposes a continuing duty of inquiry, it does not specify that the discharge of this duty requires that every "extended family" member must be asked for information about the child's Indian ancestry. Here, the Department reasonably sought information from the parents and grandparents and repeatedly attempted to obtain more information from these sources. There is nothing in the record to indicate that C.W., at best a maternal first or second cousin of the child, had additional information about the child's Indian ancestry that had not been provided by the mother or the maternal grandfather and that was not available in the Department's files. On this record, the mother has not established that the juvenile court failed to discharge its duty of inquiry.
III. Disposition
The juvenile court's order is affirmed.
Mihara, Acting P. J. WE CONCUR: Duffy, J. Walsh, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.