In re S.T. CA1/3 ( 2013 )

Filed 12/19/13 In re S.T. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re S.T., a Person Coming Under the
Juvenile Court Law.
SAN MATEO COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v. A138447
V.F., (San Mateo County
Defendant and Appellant. Super. Ct. No. JV81064)
Appellant V.F., mother of S.T., appeals from an order, dated February 25, 2013,
and filed on March 1, 2013, in which the juvenile court terminated its jurisdiction, and
awarded sole legal and physical custody of the child to father and granted mother
supervised visitation.1 Mother challenges those portions of the order’s visitation
directives requiring supervision of visits and limiting visits to twice monthly. We
conclude mother’s contentions do not require reversal, and accordingly, we affirm.
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Mother’s April 15, 2013, notice of appeal also seeks review of findings and orders
of June 11, 2012, August 6, 2012, September 26, 2012, September 27, 2012,
November 28, 2012, December 27, 2012, January 11, 2013, and February 20, 2013.
Even assuming those findings and orders are properly before us, mother seeks no
affirmative relief regarding them. Accordingly, we dismiss the appeals from those
findings and orders as abandoned.
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FACTUAL AND PROCEDURAL BACKGROUND2
In February 2011, the San Mateo County Human Services Agency (the agency)
filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (j)
(abuse of sibling), seeking to have then three-year-old S.T. be declared a dependent of the
juvenile court. At that time S.T. was living with mother and four half-siblings. The
petition alleged the child was at risk of physical harm and serious emotional damage
based on mother’s physical and emotional abuse of one half-sibling and the physical
abuse of another half-sibling. The juvenile court declared the child a dependent of the
court and the agency was directed to provide reunification services to mother. The child
and half-siblings were placed in the home of the maternal grandparents and mother was
granted weekly supervised visits with the children.
By May 2011, the agency had located the child’s biological father, who filed a
family court request for visits and started to pay child support and provide medical
coverage for the child. In an interview with the agency social worker, father reported he
had had a previous relationship with mother that lasted two or three years, and he had
regularly visited the child from the age of four months old until March 2010 when mother
no longer allowed visitation. Father wanted custody of the child if the child was not
returned to mother and he asked for reunification services. In October 2011, the juvenile
court elevated father’s status to that of presumed father, and granted him reunification
services and supervised visits of a minimum of two hours with the agency having
discretion to allow unsupervised visits.
By the time of the 12-month review hearing, which was conducted over the course
of several days, mother had completed her court-ordered mandated services. The child
was participating in therapy with both parents. Father had unsupervised visits with the
child, and the agency social worker recommended extended overnight visits at the home
of father and his girlfriend. Mother had weekly supervised visits, and the agency social
worker recommended a change to unsupervised visits.
2
We recite only those facts as are necessary to give context to the issue raised on
this appeal.
2
In April, 2012, the juvenile court placed the child with father with family
maintenance services but the child was allowed to stay with the maternal grandparents
and half-siblings during weekdays. Mother was granted unsupervised weekly visits in
the community. By the time of the June 2012, status review hearing, although mother
had participated in all of her court-ordered services, including anger management and
parent education, both mother’s therapist and the child’s therapist agreed that additional
time was needed before reunification could be recommended as mother had not met her
individual therapeutic goals and mother and the child needed continued work in dyad
therapy. The juvenile court allowed the child one weekly overnight unsupervised visit
with mother.
However, at the August 6, 2012, status review hearing, counsel for the agency and
the child’s counsel requested that visits between the child and mother be limited to
supervised visits based on concerns about mother’s behavior during an unsupervised visit
and concerns about the child’s change in behavior toward her father, which prompted the
child’s court appointed special advocate (CASA) to recommend that the child resume
therapy. The juvenile court directed that mother’s visits were to be limited to supervised
visits based on the reasons expressed by counsel. The court acknowledged that mother
was working very hard at addressing her anger issues, but the child’s best interest
required a return to supervised visits.
On August 12, 2012, the child moved to father’s home on a full time basis.
Shortly thereafter, mother started to complain about father’s care of the child, alleging
that the child smelled dirty and had body odor during supervised visits. The agency
social worker investigated the allegations and determined all of the other persons that
came into contact with the child (CASA, agency social worker, child’s teacher,
community workers who supervised visits), reported that the child was well dressed and
did not have a bad smell. At a September 27, 2012, hearing, mother stipulated to
termination of her reunification services as to the child. Mother also did not contest an
order continuing weekly supervised visits with the child. The court scheduled a hearing
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for the possible termination of its jurisdiction and the issuance of exit orders of custody
and visitation.
The juvenile court held hearings regarding the possible termination of its
jurisdiction and the issuance of exit orders of custody and visitation on November 28,
2012, December 27, 2012, January 11, 2013, February 20, 2013, and February 25, 2013.
The five-year-old child had then been living with father and his girlfriend and their two
children (child’s half-siblings) for several months, and mother was participating in
weekly supervised visits with the child. The agency social worker recommended that
father have sole legal and physical custody of the child if the court was inclined to
terminate jurisdiction. As to mother’s visitation, at the initial hearing on November 28,
2012, the agency social worker recommended a continuation of weekly supervised visits
because mother’s unfounded complaints about father’s care of the child had escalated.
The agency social worker was concerned that mother’s allegations “will not stop” and put
the child “totally in the middle” of “a battle of the mother against the father.” At the last
hearing on February 25, 2013, the agency social worker recommended that mother’s
supervised visits be reduced from weekly to twice monthly. By that time mother’s
complaints about father’s care of the child had escalated to being made on an almost
weekly basis “always com[ing] after the visits,” resulting in investigations of each
allegation by the agency social worker and CPS. The allegations were not confirmed by
either the persons who came in contact with the child or an examination of the child and
age-appropriate questioning of the child about father’s care. The agency social worker
opined that by decreasing supervised visits, the child would be exposed to fewer
investigations (including examinations and questioning about father’s care) because the
child “constantly must have the feeling that something is wrong with the father.”
At the conclusion of the hearings, the juvenile court awarded father sole legal and
physical custody of the child after terminating its jurisdiction and family maintenance
services for father as no longer necessary. In so ruling, the court found: “[The agency
social worker’s] testimony throughout has been credible. The Court, as it related to the
testimony of Mother however, finds that her testimony was not credible. I did not believe
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the mother’s explanation for a number of issues that came up, and I do not find her
testimony to be credible.” “The [agency] has consistently praised the father’s care of [the
child], noting that [the child] has become more and more comfortable with him and in his
home; his supervision is appropriate, and he cares well for [the child]; and he has
consistently put [the child’s] best interest first. [¶] He has allowed [the child] to remain at
[the] grandparents’ home when he could have had full custody. And he has continued
visits even as family members were criticizing his care. Since transitioning to [the]
father’s care, [the child] has done well in school. [The child] appears happy, well cared
for, according to social workers, [the child’s] teachers at school, and [the child’s] CASA.
[¶] . . . [T]he CASA report . . . clearly indicates that [the child] is very happy to see [the]
father, and CASA also recommends that Father have sole legal and sole physical custody.
[¶] As it relates to Mother’s credibility, the Court is very concerned about the most recent
incident wherein [the child] was in a bathroom for 16 minutes with the mother, and the
. . . parties connected to that visit . . . are knocking on the door. Mother’s explanation
concerning why she didn’t answer the door was just not credible. [¶] Mother’s complaints
have not been corroborated. She has consistently complained on various different points
that [the child’s] hygiene is not good; that has not been corroborated; that [the child]
smells bad; that has not been corroborated; that [the child] is dirty; that has not been
corroborated. . . . Mother is taking these things that children experience and is creating
them into big issues such that CPS has to conduct an investigation, and [the child] has to
be subjected to examination. And that is a clear indication of Mother’s lack of judgment;
or put differently, her focus on ensuring [the child] is not placed in the custody, sole
custody, of [the] father. [¶] Concerns about how [the child] puts . . . clothes on. [The
child] is not even six years old . . . . [I]t’s not something that should be criticized. And
Mother has done that with [the child.] . . . . [¶] Mother has also contended that [the child]
hasn’t been showering. Father indicates [the child] showers every day. This most recent
allegation about scratches caused the social worker to go [to the child’s] home to find
[the child]. She had to lift [the child’s] chin up and see these two tiny scratches. Once
again, another investigation that had to be conducted because of Mother’s allegations
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concerning [the child] being, quote, abused. [¶] It’s very unfortunate that [the child] has
been subjected to these continued inspections based on Mother’s allegations. And, as
noted, Mother makes these allegations later. [¶] . . . If Mother sees something, she can
step aside and tell somebody right there so that there’s corroboration of her observations.
[¶] Now, while it’s true as it relates to the scratches, they did exist. They were very tiny.
And Father explains in the report that [the child] was playing with [a] baby [half-sibling].
Mother’s credibility is definitely questioned by this Court. Her judgment is questioned.
It is clear to the Court that it would not be in [the child’s] best interest [for mother] to
have joint legal and joint physical custody. [¶] I think th[e] evidence is overwhelming on
that issue.”
In addressing the issue of mother’s visits with the child, the juvenile court found,
“the Court is aware that [the child] loves [the] mother . . . [and] that Mother loves her
[child]. However, the Court needs to make orders that are in [the child’s] best interest, at
the same time taking into consideration Mother’s relationship with her [child]. [¶]
However, as noted, the investigations recently have become nearly weekly based on
Mother’s complaints about this or that, which I have delineated on the record and are
clearly noted in the reports. And it is not in [the child’s] best interest, in the Court’ s
view, because of this to have weekly supervised visitation. And, therefore, as a factual
basis, all of the information in the reports, the Mother’s recent incidents and the
testimony, the Court is going to reduce supervised visitation from weekly to twice
monthly with Mother. [¶] The Court is also going to order that those visits be supervised
. . . by . . . someone [who] needs to be there in earshot to ensure that what Mother is
saying to [the child] is appropriate. The reason for this is the Court is concerned about
the most recent incident where Mother was in a restroom for 16 minutes with [the child].
People are knocking on the door, asking her to come out because the [visitation] is
supervised. Mother does not. And then when [the child] comes out, [the child] . . .wants
to go to [the] mother’s home. [¶] I think logic and reason dictates that Mother is trying to
influence [the child]. And it is not in [the child’s] best interest to be torn in this matter.
Mother is thinking of herself and not thinking of her [child]. I think it’s clear based on
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the complaints and the allegations and what [the child] has had to go through. So I hope
the record is clear as to the Court’s basis for this reduction, regrettably, from weekly
supervision to twice monthly. [¶] The Court does not enjoy doing this because the Court
understands the relationship between mother and [the child] here. But it is in [the child’s]
best interest because I’m concerned about Mother’s behavior and her judgment. And so
that is the basis for the Court’s decision.”
DISCUSSION
We review the juvenile court’s visitation directives for an abuse of discretion. (In
re Emmanuel R. (2001) 94 Cal.App.4th 452.) We agree with mother that an abuse of
discretion is not only found when the juvenile court’s decision exceeds all bounds of
reason. Nevertheless, “ ‘[b]road deference must be shown to the [juvenile court] judge.
The reviewing court should interfere only “ ‘if [it] finds that under all the evidence,
viewed most favorably in support of the [juvenile] court’s action, no judge could
reasonably have made the order that he did.’. . .” ’ [Citations.] . . . The juvenile court’s
opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a
high degree of appellate court deference.” (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1351.) Thus, to reverse the visitation directives, we would have to conclude the
juvenile court’s discretion could be exercised in only one way, compelling a finding in
favor of mother as a matter of law. We cannot so conclude in this case for the reasons we
now discuss.
Because the juvenile court “has a special responsibility to the child as parens
patriae,” when issuing a visitation order on termination of its jurisdiction, it “must look at
the totality of the child’s circumstances” (In re Roger S. (1992) 4 Cal.App.4th 25, 30-31),
and “may consider the parent’s past conduct as well as present circumstances” (In re Cole
C. (2009) 174 Cal.App.4th 900, 917). Here, the court’s explanation for its visitation
directives reveals its “clear continuing concerns about [mother’s] effect, even in
supervised visits, on [the child’s] well being.” (In re Chantal S. (1996) 13 Cal.4th 196,
204.) Contrary to mother’s contention, the juvenile court “was entitled to find the social
worker’s opinion[s] credible and give great weight to her assessment.” (In re Cole C.,
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supra, 174 Cal.App.4th at p. 918.) We see no merit to mother’s related argument that
there is other evidence that requires us to reverse the juvenile court’s order. As an
appellate court, “[w]e have no power to judge the effect or value of the evidence, to
weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the
evidence or the reasonable inferences which may be drawn from that evidence.” (In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Instead, “we must accept the evidence most
favorable to the order as true and discard the unfavorable evidence as not having
sufficient verity to be accepted by the trier of fact.” (Id. at p. 53.) Mother’s argument
“effectively asks us to reweigh the evidence. We decline to do so.” (In re Zachary G.
(1999) 77 Cal.App.4th 799, 812.)
DISPOSITION
The appeals from the findings and orders of June 11, 2012, August 6, 2012,
September 26, 2012, September 27, 2012, November 28, 2012, December 27, 2012,
January 11, 2013, and February 20, 2013, are dismissed. The order dated February 25,
2013, and filed on March 1, 2013, is affirmed.
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
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