Opinion
A160508
02-09-2021
In re E. J., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. E. P., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. DJ18-3109)
E. P. (Mother) appeals an order of the juvenile court allowing the foster parents of her daughter, E.J. (Minor) to move with Minor to another state in the time between the termination of reunification services and the hearing pursuant to Welfare and Institutions Code section 366.26. Mother contends the juvenile court improperly precluded her from participating personally and testifying at the hearing and that it unduly limited the scope of the evidence. We shall affirm the order.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The history of this dependency is described in the opinion we issued in response to Mother's petition for extraordinary relief from the order setting a hearing for a permanent plan (E.J. v. Superior Court (Oct. 22, 2019, A157965) [nonpub. opn.]; § 366.26; Cal. Rules of Court, rule 8.452), and we quote from it at length:
Empty brackets [ ] indicate deletions from our earlier opinion; brackets with material enclosed indicate matter added by this court, except where those brackets were found in internal quotations in our earlier opinion.
I. Jurisdiction
The San Francisco Human Services Agency (the Agency) filed a petition pursuant to section 300 on behalf of E.J. (Minor), then four years old, on April 30, 2018. The petition alleged Mother had physically and verbally assaulted people in Minor's presence, that her ability to care for Minor was impaired by anger management and mental health issues, that she inserted her finger into Minor's vagina on public transportation to check for signs of sexual abuse, and that she left Minor with no provision for support after she was arrested.
According to the detention report, Mother physically attacked the property manager of her housing complex in Minor's presence. Minor was "in the middle" of the altercation and was "screaming and yelling and telling [Mother] to stop." There were reports that Mother had assaulted multiple other people at the housing complex in the past in Minor's presence, and she was facing eviction. There were also reports that Mother had a history of accusing people of sexually abusing Minor, which led to Minor being interviewed and examined for unfounded sexual abuse allegations. The previous year, the Agency had received two reports that Mother inserted her finger into Minor's vagina on public transportation to check for signs of sexual abuse after Minor had been at daycare. Mother had been arrested for violating a protective order, and the person with whom she had left Minor was unable to provide long-term care for her. Minor was detained and supervised visitation was ordered for Mother on May 1, 2018.
The Agency made an application to suspend visitation between Minor and Mother on June 11, 2018. A social worker provided a declaration stating that Mother had accused Minor's foster parent of "touching" Minor, that Mother became "dysregulated" and called 911 when Minor arrived at a visit, and that she disrupted the visit. At a meeting to discuss the Agency's concerns about her behavior, Mother violently bumped into a psychologist, screamed obscenities, cried, and slammed her fist on the table. Mother later threatened to have the social worker followed and threatened to " 'smack' " him and shoot him. On June 12, 2018, the court issued a temporary restraining order protecting the social worker and suspended visits pending a medication and psychological evaluation; it later issued a restraining order.
The Agency's report for the June 18, 2018 jurisdiction and disposition hearing set forth the efforts it had made: referrals for housing assistance, substance abuse assessment, mental health services, supervised and therapeutic visitation, and contacts with the social workers.
On June 18, 2018, the juvenile court found true allegations that Mother had anger management issues and Minor had witnessed verbal and physical altercations and had tried to intervene; that Mother had mental health issues that required assessment and treatment; and that Minor was at risk because Mother had a history of making unsubstantiated allegations of sexual abuse. It declared Minor a dependent and removed her from Mother.
II. Disposition
The dispositional hearing took place on August 31, 2018. In the meantime, the Agency reported on the progress of the case. Mother was working with a different social worker on her assessment and case plan, she was respectful, and she expressed remorse about her behavior toward the first social worker. Mother had experienced neglect, physical abuse, and sexual abuse in her life, and she showed insight into her own history of trauma. She had been evicted from her housing because of violent behavior toward staff, and she was now homeless.
By August 2, 2018, Mother had received psychological and medication evaluations and was taking medications. She had been referred to a variety of services: she had an appointment scheduled for individual therapy; she was on a waiting list for mental health residential treatment; and she had been linked to a female batterer program to address anger management and poor impulse control.
Mother was homeless, and either stayed at shelters or slept on the streets. The Agency held a meeting with Mother and a CalWorks "Linkages" worker regarding her entitlement to financial support, and she was given information about resources for housing assistance. The Agency had tried to hold a team meeting to address Mother's housing needs, but Mother did not show up for the meeting.
Mother had sent text messages to her social worker saying she had hired a private investigator and had the FBI watching the social worker and the foster parents.
Mother began to receive three hours of therapeutic visitation with Minor per week in August 2018, after the Agency met with her to set expectations, including that the visits were only for Mother and Minor. Nevertheless, Mother brought her 16-year-old sister to the first therapeutic visitation session, which was delayed while the social worker persuaded them that the sister could not attend.
Minor's foster parents reported that she had nightmares, was aggressive to animals, and had been violent toward the foster parents, who were not sure they could continue caring for her. Minor was having a difficult time after the visits.
At the disposition hearing on August 31, 2018, the juvenile court continued Minor in foster care, ordered reunification services for Mother, and continued the matter for a six-month review on February 28, 2019.
III. Request to Suspend Visitation and First Incarceration
The Agency filed a request to suspend visitation on October 1, 2018. The request followed a September 26, 2018, incident in which Mother punched a social worker in the face, apparently thinking she was Minor's foster mother; followed Minor's therapist and an associate down the street and yelled that they had kidnapped her child; apparently vandalized the therapist's car; and shoved another Agency employee. The court issued a restraining order protecting the social worker from Mother. The court suspended visitation pending a hearing on the Agency's request.
On November 2, 2018, Mother physically and verbally assaulted another social worker, apparently believing her to be a social worker who had worked on the case earlier in the year. The trial court issued a restraining order protecting both social workers from Mother.
Mother was arrested twice during the six-month review period, and was incarcerated in San Francisco, San Mateo, and Alameda County for a total of approximately four weeks. On December 12, 2018, the juvenile court denied the Agency's request to suspend Mother's visitation and allowed her to have supervised visitation once a week while incarcerated in a county jail if she was in a program that allowed contact visits with Minor. The order provided she would have supervised visitation once a week upon her release from custody, which occurred December 21, 2018.
IV. Six-Month and Twelve-Month Hearing
Before the six-month hearing scheduled for February 28, 2019, the Agency recommended that the court terminate reunification services. The matter was set for a contested hearing. It was eventually continued again and took place concurrently with the 12-month hearing on July 24, 2019. At the hearing, the Agency recommended that reunification services be terminated and the matter set for a [section 366.26] hearing.
A. Services Before Mother's Second Incarceration
In February 2019, the Agency reported that Mother lacked housing. The Agency had referred her to another organization for housing support, completed an application for Section 8 housing, given Mother information on an open housing list in San Francisco, and given her shelter locations. Mother had not followed up on any of the referrals or information.
Mother had received referrals for individual therapy and medication evaluation in May, June, September, and December 2018. Mother did not believe she needed mental health services, and said the reason she " 'act[ed] out' " was because the Agency had taken Minor from her. She appeared paranoid and anxious, but refused therapy and medication. Her use of narcotics was increasing.
Mother had received a referral for anger management. [ ] Because of Mother's history of trauma with men, the psychologist who had evaluated Mother had recommended she receive treatment from female providers. [ ] [The Agency] gave Mother a referral to the female-only program, but she did not attend. [ ] Mother visited [a mental health] clinic once, but she did not go to her next appointment. [ ]
Mother was visiting with Minor. The visits generally went well, although Mother sometimes had to be "redirected" when she blamed other people for the fact that she and Minor could not live together, asked Minor if anyone was hurting her, or said negative things about men.
The Agency described Mother's parenting skills as "marginal at best." She did not set boundaries for Minor, she had difficulty understanding Minor's developmental stages, and her fear for Minor's safety caused Minor anxiety. Minor was frightened when Mother constantly asked if she was being hurt or touched inappropriately or when Mother spoke negatively about men and cried. The Agency reported that Mother and Minor were "very bonded and connected," but concluded Mother did not understand how her aggressive and violent behavior affected Minor.
B. Services During Mother's Second Incarceration
Mother was arrested on March 15, 2019 in San Francisco County, and by April 8, 2019 was being held in San Mateo County on charges unrelated to the dependency. She was still incarcerated at the time of the July 24, 2019 hearing.
[ ] [M]ental health services were unavailable at the jail. Mother was switched from one "pod" at the San Mateo County jail to another after about three weeks, apparently as a result of an incident with another person. [ ]
On May 24, 2019, a social worker sent the jail a request for services that would assist Mother and followed up with a phone call. However, Mother was placed in administrative segregation at the end of May, and she was not able to participate in any services. Although the jail would not reveal its reasons for placing a particular inmate in administrative segregation, it said some typical causes could be behavior issues, mental health issues, fighting, or other disruptive behavior.
C. The 12-Month Review Hearing and Ruling
The program manager and a social worker who also worked on the case testified at the 12-month review hearing. At several points during the hearing, Mother disrupted with profanity, crying, or vulgar gestures.
The juvenile court found Mother had received reasonable services and had made minimal efforts to alleviate the causes of the dependency, terminated reunification services, and set the matter for a [section 366.26] hearing. [We end our quotation from our prior opinion here.]
Mother petitioned for extraordinary relief from the order, and on October 22, 2019 we denied her petition on the merits.
V. Events After Termination of Reunification Services
A report prepared for the section 366.26 hearing, initially scheduled for November 20, 2019, recommended that parental rights be terminated and Minor placed for adoption. Mother was still incarcerated; she had recently been transferred from county jail, where she had been in administrative segregation most of the time, to a state prison to serve a 16-month sentence. Since March 2019, Minor had been placed with new foster parents, who wished to adopt her. Her behavior had improved greatly and she was happy and emotionally stable in the foster home. Minor said she wished to be adopted, she called the foster parents her moms, and she wanted to change her last name to theirs. She loved and showed affection for Mother and she enjoyed visits with her, but the foster parents reported that after visits with Mother, Minor "comes back worried that her mother will come for her and hurt her as she did in the past."
The section 366.26 hearing was continued to January 8, 2020. Mother did not appear, and the matter was continued to April 13, 2020. On that date the hearing was again continued to August 14, 2020.
The parties inform us the section 366.26 hearing took place in December 2020. Mother's appeal from the resulting order terminating her parental rights is currently pending and has not yet been briefed. (San Francisco Human Services Agency v. E.P. (A161744, app. pending).)
VI. Request to Allow Foster Parents to Move with Minor
Meanwhile, the Agency filed a request on May 12, 2020 asking the court to change its prior order allowing in-person visits once a month. (§ 388.) The request explained that the foster parents needed to move to a different state on June 1, 2020 because the job of one of the foster parents had been relocated. It also noted that visits between Minor and Mother were not currently taking place in person because of the COVID-19 shelter-in-place order and that Mother had failed to show up on March 18, 2020 for the last scheduled in-person visit. The social worker was arranging virtual visits. The Agency asked for visitation to be remote until there was no health risk to Minor traveling.
Mother appeared by telephone, personally and represented by counsel, at a May 12, 2020 ex parte hearing on the Agency's request for an order shortening time. During the hearing, Mother repeatedly interrupted the proceedings, and she said she was recording them. The court told her she was not allowed to record and admonished her not to do so. The court set a hearing on the Agency's section 388 motion for May 21, 2020.
A different judge presided over the May 21, 2020 hearing. The court began by stating, "For the record, we did have the mother on the phone, and we were going to merge her into the phone call, but then she informed the court clerk she was recording everything and was insistent about that. This isn't the first time she has tried to record the proceedings that are confidential in this courtroom so I instructed my clerk to inform her she would not be part of this phone call today. ¶ We are in a worldwide pandemic, and there's no way I can ensure that she's not recording this proceeding; so she shall not be allowed to participate today on this phone call."
Mother's counsel objected to Mother being excluded, saying, "And I would ask the Court to give me an opportunity to explain to my client that she's not allowed, under any circumstances, to record these proceedings. That they are confidential and that participation over the telephone does not change the nature of the confidentiality of these proceedings. ¶ It's really unique in the sense that we are for the first time ever participating in hearings—and especially, contested hearings—over the telephone. Parents may not understand that the same limitations in regards to confidentiality apply. And I do believe if I was given the opportunity to explain this to her that she would understand and comply." The court asked how many times Mother had previously tried to record proceedings, and the Agency's counsel told the court Mother had said she was recording the May 12 hearing and that the judge presided over that hearing had admonished her not to do so. Mother's counsel indicated she remembered that, and the court continued, "And you did not have a conversation with her about that, [counsel]?" Mother's counsel replied, "I actually did have a conversation with her." The court said, "So that's my ruling. And I'm happy for you to take a writ if you want to take a writ. She is not to record—there was another time, in my presence, where she tried to record. ¶ I have no way to ensure that she's not recording; so let's just proceed."
Minor's counsel explained to the court that Minor was doing well in the placement and that one of the foster parents was required to move to the East Coast for her job. She believed the move was in Minor's best interest.
Mother's counsel expressed concern that Mother and Minor would not be able to maintain their bond if Minor moved to the East Coast. She asked the court to order in-person visits once the shelter-in-place order was lifted.
The Agency's counsel indicated the Agency intended to continue Mother's monthly visits, but asked for discretion in whether they should take place in person, noting that in-person visits would take a lot of planning if Minor moved to the East Coast and that Mother had not been consistent in visiting with Minor. The Agency's counsel also told the court that Mother was currently on parole and that there was a warrant out for her arrest. She stated, and the social worker confirmed, that the foster parent had received a promotion, and that her position was moving out of state.
The court noted that Mother had missed visits, including the last virtual visit, and Mother's counsel said she had planned to have Mother testify about the visits. The court responded, "Well, that's not going to happen. Your client's not going to testify."
The social worker testified that she had spoken with someone in the foster parent's human resources department, who confirmed that the company was being expanded on the East Coast and needed the person in the foster parent's position to go there and oversee the expansion and growth. The foster parent had to do so in order to keep her job. The foster parents could not afford to have one of them move to the East Coast and the other remain in California with Minor.
The court granted the Agency's request, finding it was in Minor's best interest to move with the foster parents. The court ordered that visits between Mother and Minor, "when they can happen in person, that they be in person, if at all possible." The court's written order provided that placement was changed from foster care placement to foster care placement under ICPC (Interstate Compact on the Placement of Children) supervision, and that "[i]n person visits with the mother should be arranged when the shelter in place is lifted." Mother has appealed from this order.
DISCUSSION
I. Preclusion from Participating in Hearing
Mother contends the juvenile court denied her due process and abused its discretion when it refused to allow her to participate in the May 21, 2020 hearing on the section 388 motion.
Section 388 authorizes a party to petition the juvenile court for a hearing to change, modify, or set aside a prior order based on a change in circumstance. (§ 388, subd. (a).) If it appears the child's best interests may be promoted by the proposed change, the court must order a hearing and give notice of the hearing. (Id., subd. (d); Cal. Rules of Court, rule 5.570(g).)
" 'Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him [or her] adequate notice and an opportunity to be heard.' " (Adoption of B.C. (2011) 195 Cal.App.4th 913, 924-925.) This due process right includes "a meaningful hearing with the opportunity to present evidence" (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146) and to examine evidence and cross-examine witnesses (In re Crystal J. (1993) 12 Cal.App.4th 407, 413), and it may extend to section 388 hearings (see In re Lesly G. (2008) 162 Cal.App.4th 904, 914-915). However, "juvenile proceedings need not be 'conducted with all the strict formality of a criminal proceeding.' [Citations.] . . . '[D]ue process is a flexible concept which depends upon the circumstances and a balancing of various factors.' " (Id. at p. 914.)
Under both the state and federal Constitutions, "we balance similar factors . . . to decide what process is due. [Citation.] This flexible balancing standard considers ' "(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal or administrative burdens that the additional or substitute procedural requirement would entail." ' " (In re Malinda S. (1990) 51 Cal.3d 368, 383; accord, In re James Q. (2000) 81 Cal.App.4th 255, 267.)
To determine what process is due to a party, we consider the nature of the hearing and the interests at stake. (In re James Q., supra, 81 Cal.App.4th at p. 267 [parent's interest at review hearing are "substantial ones," so essential for parent to be able to make case]; In re Thomas R. (2006) 145 Cal.App.4th 726, 733 [due process right to present evidence " 'limited to relevant evidence of significant probative value to the issue before the court' "].) The level of process that is due differs at different stages of dependency proceedings. (Thomas R., at p. 733.) In particular, "[a]fter reunification services are terminated and a section 366.26 hearing is set the focus shifts from the parent's interest in reunification to the child's need for permanency and stability.' " (Ibid.)
We review procedural due process claims de novo. (In re Jonathan V. (2018) 19 Cal.App.5th 236, 241.) If a parent has been deprived of a due process right, we reverse unless the error was harmless beyond a reasonable doubt. (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1181-1182.)
In evaluating a claim that a court abused its discretion, we bear in mind that a juvenile court is "accorded broad general authority to control its proceedings" (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 758) and " 'enforce order in [its] presence' " (In re Josiah S. (2002) 102 Cal.App.4th 403, 412), and that an abuse of discretion occurs if the court " 'has exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination' " (In re A.G. (2020) 58 Cal.App.5th 973, 1003).
With these principles in mind, we consider the juvenile court's ruling excluding Mother from participating in the hearing except through counsel, as a result of which she was unable to testify. We first note that the hearing took place after reunification services had been terminated and a section 366.26 hearing set. At this point, the level of process due to Mother must be evaluated in light of the primary focus on Minor's need for permanency and stability, rather than Mother's interest in reunifying with her. (In re Thomas R., supra, 145 Cal.App.4th at p. 733.)
In the circumstances before us, Mother was not improperly deprived of a meaningful hearing with an opportunity to be heard. There is a strong public policy in maintaining the confidentiality of juvenile dependency proceedings. (Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 828, fn. 6.) Mother had previously been informed at least twice—once by the court at the May 12, 2020 hearing, and once by her counsel afterward—that she could not record the proceedings. In defiance of these admonishments, she expressed her intention barely a week later to record the May 21, 2020 hearing. In the face of her obstinacy, we do not fault the juvenile court for its concern that Mother could not be relied upon to refrain from recording the telephonic hearing.
Crucially, Mother was not deprived of the opportunity to participate meaningfully in the hearing, albeit only through counsel. Mother suggests she should have received a warning that continued disobedience would lead to her exclusion from the hearing. (See People v. Sully (1991) 53 Cal.3d 1195, 1239-1240 ["defendant expressly waived his constitutional right to remain in the courtroom by his own actions, taken with full knowledge and appreciation of the consequences"]; People v. Hayes (1991) 229 Cal.App.3d 1226, 1233-1234 [trial court has power to exclude disruptive defendant from court proceedings after warning that behavior would cause removal]; Pen. Code, § 1043, subd. (b)(1).) But the cases upon which Mother relies involve criminal defendants, and " '[i]n dependency cases, as in other civil cases, personal appearance by a party is not essential; appearance by an attorney is sufficient and equally effective.' " (In re Jesusa V. (2004) 32 Cal.4th 588, 602 [no deprivation of constitutional rights where court determined presumed father status of incarcerated parent while his attorney was present but father was absent]; accord, In re Dolly D. (1995) 41 Cal.App.4th 440, 445.) Here, Mother's counsel participated in the hearing in Mother's absence, cross-examined the social worker, and argued Mother's interests. Whether or not it would have been preferable for the court to warn her on the record of the consequences of her actions, Mother's interests were adequately represented.
Mother argues, however, that less drastic means were available to protect the confidentiality of the hearing, such as allowing her to testify in the courtroom in person or before someone authorized to administer oaths, procedures that she contends might have entailed only a brief delay. Mother also suggests the trial court might have allowed her counsel to consult with her in an effort to persuade her to comply with the restriction on recording hearings. (See Geders v. United States (1975) 425 U.S. 80, 89-90 [court improperly prohibited defendant from consulting with counsel during overnight recess].) While it might have been appropriate for the juvenile court to have attempted such measures, we are not persuaded Mother was deprived of a meaningful opportunity to be heard through counsel, or that in the circumstances—including the stage of the proceedings and her failure to heed the court's prior admonishment—she was denied due process when the court proceeded with the hearing as scheduled. (Cf. In re Hunter W. (2011) 200 Cal.App.4th 1454, 1463-1464 [proceeding with section 388 hearing in parents' absence prevented them from being able to present positions in meaningful manner].)
Nor has Mother persuaded us the court abused its discretion in not delaying the proceedings to allow her counsel to advise her or to give her the opportunity to testify in some other way. Mother had been admonished at least twice not to record the hearings, she expressed her intention to do so in defiance of those instructions, and her counsel remained to represent her interests in court. The court's decision to proceed without her personal participation was not beyond the bounds of reason. (In re A.G., supra, 58 Cal.App.5th at p. 1003.)
We are likewise unpersuaded by Mother's argument that the court clerk's statement that Mother insisted on recording the hearing was inadmissible hearsay. Mother relies on Fewel v. Fewel (1943) 23 Cal.2d 431, 435-436, which held it was improper for a trial court to modify a custody award based exclusively on the recommendation of a court investigator, submitted privately to the judge, that the parties were not able to subject to cross-examination. (See Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 108 [factual findings underpinning order are binding on appellate court unless unsupported by substantial evidence].) There is no similar disputed evidentiary issue here on which cross-examination was unavailable. It was not error for the court to credit the statement of a court staff member whose job it was to assist in the convening of court hearings, especially where Mother's counsel did not question the veracity of the clerk's statement at the hearing, and there is no basis for us to do so now.
In any case, we see no possibility the hearing would have produced a different result if Mother had been able to participate personally. Mother argues she would have been able to testify about the visits the Agency said she missed. She points out that in finding it was in Minor's best interests to move with the foster family, the court commented on the missed visits, stating, "This child has suffered an enormous amount of trauma from her mother and this child continues to suffer every time her mother fails to visit. She has failed to visit recently. This child continues to suffer every time her mother goes to jail, and now I understand that she has a warrant out for her arrest, and she's been incarcerated at least twice during the pendency of this case. [¶] And somehow, the suggestion and innuendo of the questioning is that maybe it's better for this child to suffer yet another trauma of being removed from the placement she's in now where she has a bond—and when I say 'bond,' I mean positive bond—with her foster family and where she is thriving. [¶] So this is in her best interest, and obviously, there's a change of circumstance with her foster family that's necessitating this placement."
Despite the juvenile court's reference to Mother's recent missed visits, we see no possibility it would have reached a different decision had Mother been able to testify as to the circumstances. There is no dispute that visitation during the dependency had been disrupted by Mother's incarcerations or that Minor was thriving in her current placement. Although Mother suggests the Agency might have arranged more frequent contact if Minor remained in the Bay Area, there is no indication the court's order would change the visitation available to Mother. At the time of the hearing, visits were taking place virtually due to the COVID-19 pandemic, and the court's order did not affect those visits. Nor does it appear Mother would lose access to in-person visits when pandemic-related restrictions were eased: When Mother's counsel sought to question the social worker about whether the Agency had developed a plan to pay either Mother's or Minor's airfare for in-person visitation, the juvenile court noted, "I'm going to insist that that plan happen, but that's a side issue. And the answer I just heard from the social worker is yes." The court ordered that, when virtual visits were no longer necessary, visits take place in person if at all possible, which the court explained would require Mother to be out of jail with no pending warrant for her arrest.
At the hearing, Mother's counsel stated that she was not objecting to virtual visits while the shelter-in-place order was in effect, but took the position that, "once the shelter in place is lifted, visits should go back to in-person visitation." Consistent with that request, the minute order signed by the judge stated, "In person visits with the mother should be arranged when the shelter in place is lifted." On these facts, there was no prejudice.
Mother draws our attention to the recent case of In re S.S. (2020) 55 Cal.App.5th 355, 377, for the proposition that video visits are an inadequate substitute for in-person visitation. The court in In re S.S. concluded a father had not been provided with adequate reunification services where his child was placed with foster parents far from where he worked and lived and did not provide adequate assistance in arranging visitation. The father had consistently sought to supplement visits with video visitation, and the appellate court said in discussing the adequacy of the agency's efforts, "[w]e can all appreciate now, in the midst of the COVID-19 quarantine, that video meetings are not an adequate substitute for meeting in person, even for adults. That's even more true for children, especially small children, who aren't cognitively developed enough to engage in that setting." (Ibid.) But the termination of parental rights in In re S.S. took place before the COVID-19 pandemic, with its attendant health risks, began, and the court had no cause to consider the adequacy of visits in that context. (Id. at p. 369.) Here, as we have explained, Mother's counsel told the court she did not object to video visits while the shelter-in-place order was in effect. In re S.S. does not persuade us that the trial court's order was improper.
II. Exclusion of Evidence
Mother contends the juvenile court improperly prevented her counsel from questioning the social worker about her bond with Minor and limited the questions counsel could ask about whether the foster parents' move was necessary. She argues the court's limitations on the scope of the hearing showed confusion about the extent of its discretion and the factors that should inform its decision. We review evidentiary rulings for abuse of discretion (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065), and reverse only if it is reasonably probable there would have been a more favorable result in the absence of the challenged ruling (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125; Cal. Const., art. VI, § 13).
A. Evidence of Bond between Mother and Minor
In May 2019, the juvenile court authorized funding for a study of the bond between Mother and Minor, and ordered that the study would be used for purposes of the section 366.26 hearing only. At the hearing on the request to allow the foster parents to move with Minor, Mother's counsel said the study showed there was a bond that would be beneficial to maintain, and she expressed concern that Mother would not be able to maintain it if Minor moved to the East Coast. She said she wanted to question the social worker about the bonding study. The court said it would not allow questions about the study at that point, explaining that it remembered the case well and that questions about bonding between Mother and Minor would be addressed at the section 366.26 hearing. After Mother's counsel finished questioning the social worker, the juvenile court asked whether there was a bond between Minor and the foster parent, and the social worker replied, "Very much so. Very much so." The court asked how many years expertise the social worker had, and she replied "Nineteen."
Mother contends that the evidence about the bond between her and Minor was relevant to whether it was in Minor's best interest to allow the foster family to move with her to the East Coast and that the trial court improperly excluded it.
We agree with Mother that a parent's bond with a child may be relevant to a section 388 motion. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531.) But in the circumstances before us, there is no reversible abuse of discretion in excluding this evidence while allowing evidence of the bond between Minor and her foster parents. As we have already explained, the monthly visits between Minor and Mother were not taking place in person, there is no indication a move would disrupt them, and, after the parties discussed various possibilities for transportation, the juvenile court ordered visits to take place in person when the shelter-in-place order allowed it. Whatever the bond between Minor and Mother, there is no indication the order Mother challenges would cause additional disruption, and no reasonable probability the court would have ruled differently had Mother been able to question the social worker about the bond she shared with Minor.
B. Questions Regarding Foster Parent's Job
Mother's second evidentiary challenge is to the limits the juvenile court placed on her inquiry into the necessity for the foster parents' move. Mother's counsel elicited testimony from the social worker that she had spoken to the human resources department of one of the foster parents and was told she had worked there for three years and had been promoted the previous year, that the company was expanding on the East Coast, that they needed the person in the foster parent's new position to go to the East Coast to oversee the company's expansion, that the foster parent would have to move in order to keep her position, that the family could not afford to have one parent remain in California with Minor and the other move to the East Coast, that the social worker had not asked whether the foster parent had explored other positions at the company, and that the Agency had not considered looking for a new placement for Minor.
The juvenile court sustained objections to two lines of questioning, rulings Mother now challenges. First, Mother's counsel asked whether the foster parent had looked for a new job outside the company that would allow her to stay in California. The court sustained the objection on the ground it was irrelevant in light of the pandemic-related unemployment levels. And when Mother's counsel asked the social worker what kind of work the foster parent did and whether the job could be done virtually, the Agency objected on the ground that it was irrelevant and that it was not appropriate to discuss the details of the foster parent's job because the placement was confidential. The juvenile court sustained the objection.
Mother contends these rulings show the juvenile court misunderstood the scope of the issues relevant to the hearing, and she asks us to reverse to allow the court to exercise its discretion after receiving the pertinent information. (See E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1084 [discretionary order " 'based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion' "].) We are unpersuaded that the trial court either misunderstood or abused its discretion. Mother provides no authority for the proposition that a finding of changed circumstances justifying the move would hinge on whether a foster parent sought to leave an established job for a new one. As to the inquiry into the nature of the foster parent's job and whether it could be done remotely—even apart from the concern to maintain the confidentiality of the placement—the social worker's testimony that the person in the foster parent's position would have to transfer in order to keep her position indicates the employer's judgment that her physical presence was necessary. Given the testimony that the job required overseeing the company's expansion efforts on the East Coast, the trial court could reasonably have concluded further testimony about the specifics of the foster mother's professional role would unduly consume court time. Moreover, as we have discussed, the trial court expressed its intention to fashion an order that would not interfere with visitation, and it did so. We see neither abuse of discretion nor prejudice.
DISPOSITION
The order is affirmed.
TUCHER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.