Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Super. Ct. Nos. 510478, 510479, 510480, Nancy B. Williamsen, Commissioner.
Tim Bazar, Public Defender and Sophia Ahmad, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel and Alice E. Mimms, Deputy County Counsel, for Real Party In Interest.
OPINION
Before Ardaiz, P.J., Wiseman, J., and Gomes, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her children S.J., Au.J. and Al.J. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In October 2007, the social services agency (agency) received a referral that petitioner was using methamphetamine and became psychotic when she used drugs. During these episodes, petitioner reportedly “rampages” and destroys the home in the presence of the children. Petitioner’s then-13-year-old son from another relationship, T.N., told the social worker petitioner beat the children’s “butts,” pulled their hair, slapped them in the face, punched them on their arms and sometimes hit them with a belt. He also said petitioner and her husband, M.J., engaged in domestic violence, hitting each other and breaking things in front of the children. Petitioner and M.J.’s then 10-year-old daughter, S.J., and 8-year-old son, Au.J., confirmed T.N.’s report of domestic violence and stated they were afraid of petitioner. In addition, the social worker learned that petitioner has a history of violent and erratic behavior. She reportedly punched her hand through a window in the presence of the children and injured herself requiring 20 stitches in her wrist. The children also recounted an incident in which petitioner was stabbed by her neighbor. Petitioner’s “crazy” behavior was such that her own parents had a restraining order against her.
The agency placed T.N. with his father and placed S.J., Au.J., and petitioner, and M.J.’s then seven-year-old daughter, Al.J., with their paternal aunt and uncle. The agency also filed a dependency petition on behalf of S.J., Au.J., and Al.J. alleging petitioner’s drug use, domestic violence, and untreated mental illness placed the children at risk of harm. (§ 300, subd. (b).) The juvenile court detained the children pursuant to the petition and set the jurisdictional hearing for December 2007.
In its jurisdictional/dispositional report, the agency described the children’s first visit with petitioner after their removal. At the beginning of the visit, Au.J. ran across the room to be as far away from petitioner as possible and none of the children wanted to hug or kiss her. Petitioner cried and told the children she was unable to visit before because their grandmother had her put in jail. She also told the children things had gotten worse since they left and the neighbors wanted to kick her out. Petitioner also kept trying to touch the children. By the end of the visit, Al.J. and S.J. let her hug them twice. Petitioner pointed at Au.J. and said “you have a bad mouth” and put her finger on his throat. The social worker, concerned about petitioner’s behavior and the children’s discomfort, recommended future visitation be supervised by a mental health therapist.
In December 2007, the juvenile court suspended visitation and granted the social worker discretion to allow supervised visits if petitioner tested “clean” prior to the visit. In January 2008, the court conducted a combined jurisdictional/dispositional hearing at which it sustained the petition and ordered petitioner and M.J. to participate in reunification services. Petitioner’s reunification plan required her to complete parenting education, domestic violence counseling, mental health and substance abuse evaluations, and submit to random drug testing. The court also ordered that visitation between petitioner and the children remain suspended and set an interim review hearing in March 2008 and a six-month review hearing in June 2008.
In the months before the interim hearing, petitioner refused mental health services and was discharged from two substance abuse treatment programs, one for assaultive and threatening behavior. Given petitioner’s failure to change her behavior, the agency recommended the court continue to suspend visitation. The court did so at the interim review hearing in March 2008.
In May 2008, petitioner’s attorney filed a petition pursuant to section 388 asking the court to order weekly supervised visitation. The social worker opposed the petition and, in an addendum report, stated petitioner continued to minimize why the children were removed and when confronted with her actions, became emotional and defensive. Petitioner was adamant the children were not afraid of her and wanted to visit her. However, according to the children’s relative caretakers, S.J. was “having very scary nightmares” about petitioner. In addition, the children were assigned a new therapist who did not yet have enough time in therapy with them to make a recommendation about visitation. Consequently, the social worker recommended the court require petitioner to demonstrate her ability to be redirected when she becomes angry, manipulative or emotional before allowing visitation.
Minors’ counsel also opposed resumption of visits based on interviews she had with each of the children. Au.J. remained adamant he did not want to visit petitioner and revealed to his relative caretaker petitioner told him he is the “bad one” and that it was all his fault. S.J. stated she might want to see petitioner depending on how petitioner was doing but also remained fearful and distrusting of her. She stated she did not want to see petitioner without another adult present at all times in the room. After an unauthorized telephone contact with petitioner, S.J. had a nightmare about seeing petitioner. Al.J. said she was willing to see petitioner if the social worker was in the room.
In May 2008, the juvenile court denied the section 388 petition and confirmed the six-month review hearing for June 2008. In its report for the hearing, the agency stated petitioner was participating in inpatient substance abuse treatment and her behavior had improved with medication. However, the agency recommended visitation remain suspended until petitioner demonstrated the ability to regulate her emotions and be redirected when appropriate. The staff at the substance abuse treatment facility continued to report incidents where petitioner was hostile and unpredictable.
In July 2008, at the six-month review hearing, the juvenile court found the agency provided reasonable services and continued reunification services for both parents to the 12-month review hearing, which it set for December 2008. The court also authorized monthly visits with petitioner in a therapeutic setting and ordered petitioner to undergo a psychological evaluation, which she completed in early August 2008.
The first therapeutic visit occurred at the end of July 2008. The established procedure was that, prior to the visit, the therapist met with the children to determine whether they wanted to visit petitioner. Initially, Al.J. stated she did not want to visit. However, she changed her mind after she saw the visitation room and the toys. Petitioner and the children hugged and she told them how proud she was of them for doing so well in school. She participated in games with the children and told them she was getting better and looking for a job. The only suggestion the therapist had for petitioner at the end of the visit was that she might pay more attention to Au.J.
At the August 2008 visit, Au.J. stated he did not want to visit petitioner because after the last visit he began having “nightmares.” However, S.J. and Al.J. stated that they did. Petitioner, S.J., and Al.J. played together and demonstrated affection for each other. However, in a letter to the social worker, the therapist recommended visitation continue to occur monthly and increase slowly if petitioner could show she had her children’s best interest in mind and could be appropriate. The therapist stated the children appeared distrustful of petitioner and that she would have to work to reestablish that trust.
In late August 2008, petitioner’s evaluating psychologist reported that petitioner did not suffer from any mental disorders. Rather, she concluded petitioner has limited intellectual capabilities that interfere with her ability to comprehend and apply new information. As a result, she responds to any criticism by becoming defensive. Further, the psychologist concluded, petitioner’s aggressive behavior and “denial/blame paradigm” are more consistent with a personality disorder. Her continuing defensiveness and denial indicated to the psychologist that petitioner had made little to no progress in improving her relationship with her children. The psychologist later clarified that she believed petitioner could benefit from services at a literacy center but also stated petitioner’s limited capabilities were deeply rooted and that any major improvement would be a long and hard process for her.
In its report for the 12-month review hearing, the agency recommended the juvenile court terminate reunification services and set a section 366.26 hearing to establish a permanent plan of adoption. The agency reported all three children had stabilized in their relative’s home. They were not exhibiting any concerning behaviors and no longer required mental health therapy. However, they began to regress after the therapeutic visits began. After the initial visit in July, all three children began to have nightmares and Al.J. began to wet the bed again. Au.J. expressed a strong fear of petitioner and refused to visit her after the initial July visit. S.J. declined only one visit, the September visit. Al.J. attended all monthly visits. Because of the children’s adverse reaction to visitation, the social worker referred them for mental health counseling and, in November 2008, they were approved for individual therapy.
The agency also reported M.J. made no progress in his reunification plan. Petitioner, on the other hand, made some progress. She maintained sobriety for 12 months even though she had not completed substance abuse treatment. Further, she appeared to be integrating information learned in her parenting and domestic violence classes as she was responding with more insight. However, of concern was the fact that she and M.J. were living together even though he was still abusing alcohol. Instead of focusing on her progress and reunifying with the children, petitioner’s focus had shifted to M.J. and his participation in his court-ordered services.
In December 2008, the juvenile court conducted the contested 12-month review hearing. Petitioner testified at length. Following her testimony and argument, the juvenile court found the agency provided reasonable services, ordered them terminated and set the section 366.26 hearing. In deciding to terminate petitioner’s reunification services, the juvenile court acknowledged she regularly visited the children. However, the court concluded petitioner made progress but not significant progress in her services and had not demonstrated the ability to complete her reunification plan and ensure her children’s safety and well-being. This petition ensued.
DISCUSSION
Petitioner contends she was not provided reasonable visitation because the children and, to some extent, the therapist decided whether visitation would occur. That, she claims in essence, was an impermissible delegation of the juvenile court’s authority over visitation to the children and the therapist. Therefore, she argues, the juvenile court’s finding she was provided reasonable visitation was error and requires remand for an order continuing reunification services.
Preliminarily, we note that petitioner never appealed from the juvenile court’s visitation order nor was it the subject of objection or an appropriate motion in the juvenile court. Consequently, it is waived and petitioner may not raise it for the first time on appeal. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812; In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Notwithstanding waiver, however, we find no merit to petitioner’s claim of error.
“Visitation is a necessary and integral component of any reunification plan” and “the power to decide whether any visitation occurs belongs to the court alone.” (In re S.H. (2003) 111 Cal.App.4th 310, 317 (In re S.H.).) “When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine. [Citation.]” (Id. at pp. 371-318, fn. omitted.)
Further, “while the juvenile court may allow the child to refuse to attend a particular visit, to prevent the child from exercising a de facto veto power, there must be some assurance that, should that occur, another visit will be scheduled and actually take place. The simplest-but, by no means, the only-way to accomplish this would be for the juvenile court to order a minimum number of visits per month and to impose any essential conditions (for example, whether the visits are to be monitored or occur in a neutral setting), while allowing the Department to organize other details of the visitation. In no event, however, may the child’s wishes be the sole factor in determining whether any visitation takes place, either as a formal matter or, … by effectively giving the children the power to veto all visits. [Citation.]” (In re S.H., supra, 111 Cal.App.4th at pp. 319-320, fn. omitted.)
The visitation order in this case does not represent an improper delegation of judicial power. The visitation order called for monthly visitation in a therapeutic setting. There is nothing in the order that preconditioned the occurrence of visitation on the approval of the therapist or the consent of the children. Further, there is nothing in the order that granted the children the power to veto all visits and that did not happen. Prior to each visit, the children and the therapist discussed whether the children wanted to visit petitioner. While their decision each time was honored, all future visitation was not terminated just because a child did not want to visit. For example, Au.J. refused to visit after the initial visit, however, he was not given the power to determine whether future visits would occur. Rather, the social worker continued to schedule monthly visits pursuant to the court order. In addition, the social worker referred the children for mental health assessments because of their adverse reaction to visitation. As a result, they resumed counseling. Consequently, contrary to petitioner’s claim in the petition that the social worker did nothing to address this barrier, the appellate record reflects that she did. Unfortunately, for petitioner, it did not alleviate Au.J.’s fear of visiting her. Instead, it reflects that his refusal was not the sole criterion upon which the determination of whether he and petitioner visited was made. In light of the foregoing, we find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.