In re E.E. CA4/1 ( 2016 )

Filed 2/17/16 In re E.E. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re E.E., et al., Persons Coming Under the
Juvenile Court Law.
D068547
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J519168 A, C)
Plaintiff and Respondent,
v.
LUZ J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Sharon
Kalemkiarian, Judge. Affirmed.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Senior Deputy County Counsel, for Plaintiff and
Respondent.
Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and
Beth Ploesch for Minor.
Luz J. (Mother) appeals from a juvenile court visitation order issued after the court
assumed dependency jurisdiction over her children. Mother contends the court
improperly delegated its authority to determine the nature and frequency of her visits
with her 12-year-old son (E). We reject Mother's contentions and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Mother has three children; each has a different father. Mother challenges the trial
court's visitation ruling only as to the oldest child (E). We therefore omit facts relating to
the other children.1
In March 2015, the San Diego County Health and Human Services Agency
(Agency) filed dependency petitions alleging 12-year-old E and his two younger sisters
were at substantial risk of physical harm if they remained with Mother. E's petition
alleged that Mother and her current spouse (E's stepfather) had engaged in mutual acts of
domestic violence while E was present. The supporting documents also contained
information showing Mother abused drugs and alcohol and had attempted to jump out of
a vehicle while she was driving and while E was in the car.
1 Mother also filed a notice of appeal as to her youngest daughter, but she asserts no
error pertaining to this daughter. We thus dismiss Mother's appeal as to her daughter.
2
After a detention hearing, the court found a prima facie showing Mother was
unable or unwilling to properly care for E, and continued care in the home was contrary
to E's welfare. The court stated these findings were based "primarily on the evidence in
the report showing issues of domestic violence and substance and alcohol abuse,
endangering the health, safety, and welfare of the children." The court placed E with his
paternal aunt and uncle. E's father (Father) had been in prison for a manslaughter
conviction since E was an infant. The court ordered that Mother be provided supervised
visitation with E.
At a hearing held the next month, the court found by clear and convincing
evidence the jurisdictional allegations to be true. (Welf. & Inst. Code, § 300, subd. (b).)
At the hearing, the Agency indicated its intent to continue E's placement in the paternal
relatives' home where E was doing well. Mother challenged this placement, requesting E
be placed with E's stepfather's father. The court set a contested disposition hearing for
May 28.
At the May 28 hearing, Mother's counsel was present but Mother did not appear
(although she had received notice). E was present with his counsel. Father was present
with his counsel. The court stated it had read and reviewed the detention,
jurisdiction/disposition, and updated reports. These reports summarized the violence that
had occurred in E's presence while he was living with Mother; the fact that E had been a
victim of some of the violence by his stepfather; Mother's alcohol and substance abuse;
and Mother's inappropriate behaviors towards her children.
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In her most recent report, the Agency social worker recommended that Mother's
visitations with E occur only in therapeutic settings because the recent visits have had a
negative effect on E and his emotional stability. According to the social worker, Mother
had missed numerous visits causing emotional stress for E, and when Mother did visit,
she acted inappropriately and had no insight into the harm she has been causing E.
Mother's inappropriate actions included discussing adult topics with him, telling him he
needs to lose weight, and suggesting E was to blame for breaking up the family. After
these visitations, E became depressed, felt negative about himself, and acted out.
According to the social worker, Mother is not stable, and "has not taken any
responsibility for her actions or any statements that she has made towards E . . . ."
At the hearing, the social worker testified (by a stipulated offer of proof) that
Mother had missed four recent scheduled visits. The social worker said E is in therapy
and is reluctant to continue in-person visits with Mother, but he is willing "to do
supervised phone calls and supervised Skype visitation . . . ." The social worker also
suggested Mother send letters and drawings to E.
Based on this record, the Agency's counsel requested the court to "order
supervised visitation with discretions," noting the record showed "supervised visitation
for now is the phone calls and the letter writing and Skype . . . and we are working on the
[in]-person component . . . supervised visitation."
Mother did not present any affirmative evidence. But Mother's counsel disagreed
with the Agency's plan to begin with Skype visits and urged the court to immediately
order "supervised in-person visitation between her and [E]." Counsel argued:
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"It is very important to [Mother] that [she] see her son face-to-face
. . . and that they have an opportunity to begin repairing their
relationship. [¶] She is in agreement with conjoint therapy, given
the facts of this case; that makes a lot of sense, but it would be
detrimental to this family's ability to reunify, to the minor, and
would be unfair to my client to at this point, simply stop face-to-face
visitation. . . . [¶] And unless there's some legal detriment that
should prevent face-to-face contact it is always a good idea. In this
case, it certainly is. Skype contact and letters and phone calls are
great. But we believe that this mother and this son should see each
other frequently to begin the process of healing at this stage."
Mother's counsel also said she "understand[s] where [E is] coming from [in not wanting
in-person visitations], but children aren't really the ones who get to make decisions in this
court about the extent of contact with their parents."
E's counsel responded that he agreed "the case law is really clear . . . that a minor
doesn't get to delegate or choose the visits." But he asserted the proposed plan is not
based on E's preferences and instead reflects an attempt to meet E's current mental health
needs. E's counsel urged the court to adopt the Agency's plan, noting it contains
flexibility to meet changing circumstances of the mother-son relationship:
"The Court would be offering supervised visits with some modality
of those visits. And at this juncture, we also have to pay attention to
the emotional needs of the minor [referring the court to the social
worker's supplemental report].
"And . . . I certainly would hope that with conjoint therapy and . . .
Skype or phone visits, that that relationship gets rebuilt. The Court is
not creating a barrier to the mother's ability to visit the minor by
allowing those visits and somehow saying, okay, let's work with
baby steps at this time and work that relationship up to a point where
the face-to-face visitation can be beneficial to all."
After considering the evidence and arguments, the court agreed with the Agency
that visits should begin on a limited electronic basis and that in-person visits could then
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resume once the relationship improves or stabilizes. In explaining its reasoning, the court
stated it agreed that E could not be in charge of the visitation decision, stating: "It is
never a good idea to let kids be in control of what happens because you're a kid." But the
court made an express finding that "it would be abusive at this point to force [E] to see
his mother in a direct face-to-face supervised visit because I do believe, based upon the
evidence that I have, that her behavior vis-à-vis [E], has been very harmful and
disturbing." (Italics added.) The court said, "I also believe [Mother] loves him and she
wants to see him and she wants to have interaction, but the plan as laid out makes sense,
and that's what I'm going to order." The court concluded: "So the visitation between [E]
and his mom will be supervised. At this time it will be phone calls, Skyping, letters and
photos that will be sent to the social worker. And then upon the recommendation of . . .
E's therapist, we can go to some family therapy." The court also stated it would add a
drug testing component to Mother's reunification plan.
At the end of the hearing, the court found that clear and convincing evidence
supported E's removal from Mother's custody under applicable statutes. (See Welf. &
Inst. Code, § 361, subd. (c)(1).) The court ordered that Mother's visits with E be
supervised, and that the Agency social worker would have discretion to permit
unsupervised and/or overnighkt visits with 60-day advance notice to E's counsel. The
court also stated: "[W]e want to be sure it is clear that the visitation will be [initially]
supervised with his mother as for the terms we have already laid out. Only in-person
visits upon a recommendation by the therapist to the social worker to move to that next
level. And I give the social worker discretion to do so." (Italics added.)
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After the court made these rulings, the court asked whether counsel had any
questions. Mother's counsel responded: "Your Honor, does the Agency have discretion
to begin providing in person visitation between [E] and my client should the Agency and
[E] agree to it?" The Court replied: "Yes absolutely. And the standard discretions to lift
supervision and allow overnight visits with notice, 60-day trial visit with concurrence.
But as to mom's supervised visits, yes, the Agency has discretion when it feels it is
appropriate to do so." (Italics added.)
Regarding visitation, the written minute order stated: "Mother may have
supervised phone contact, and may send the minor letters and pictures through the social
worker. Mother may have supervised in-person visits only when it is recommended by
the therapist to move it to that level. The Agency has discretion to allow Mother
unsupervised and overnight visits with notice to minor's counsel, and a 60-day trial visit
with concurrence of minor's counsel." (Capitalization omitted, italics added.)
DISCUSSION
We begin by stating what is not at issue in this appeal. Mother does not challenge
the court's findings that: (1) clear and convincing evidence supported that E should be
removed from her custody because there was a substantial risk of danger to his physical
health and/or that he was suffering severe emotional damage in her care, and there are no
other reasonable means to protect E; (2) it would be "abusive" to E to require in-person
visits between E and Mother (at the time of the hearing); and (3) Mother's visitations with
E must be supervised until the Agency social worker determines unsupervised visits are
appropriate.
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Mother's primary appellate contention instead is that the court erred because it
delegated to the therapist the decision as to when to elevate Skype visitations to
supervised in-person visitation. (See In re Donnovan J. (1997) 58 Cal.App.4th 1474,
1476 [impermissible to delegate visitation decisions to therapist].) The Agency counters
that the juvenile court made "clear" that it was providing the social worker—and not the
therapist—the discretion to "enhance and elevate the mother's visits."
We recognize the court made certain conflicting statements regarding who had the
authority to move the Skype visits to supervised in-person visits. At several points, the
court suggested that in-person visits were permitted only upon the therapist's
recommendation or approval. But at the conclusion of the hearing, after Mother's counsel
asked for clarification, the court specifically identified the Agency as the entity that had
the authority to make this decision. Viewing the record as a whole and reading the
court's statements in context, we conclude the court provided the Agency social worker
(and not the therapist or E) the discretion to elevate the Skype visits to in-person visits,
and that this discretion was to be exercised after consulting E and E's therapist. To the
extent the written order did not capture this clarification, the court's oral pronouncements
control. (See In re A.C. (2011) 197 Cal.App.4th 796, 800; In re Aryanna C. (2005) 132
Cal.App.4th 1234, 1241 & fn. 5.)
Based on this conclusion, there was no improper delegation. The juvenile court
has the sole authority to decide whether a parent should have visitation rights with a
dependent minor. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373 (Moriah).) But
the court "may delegate to the . . . [county] social worker the responsibility to manage the
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details of visitation, including time, place and manner thereof. . . . Only when a visitation
order delegates to the . . . county welfare department the absolute discretion to determine
whether any visitation occurs does the order violate the statutory scheme and separation
of powers doctrine." (Id. at p. 1374; accord Christopher D. v. Superior Court (2012) 210
Cal.App.4th 60, 72-73 (Christopher).) In making these time/manner/place visitation
decisions, the child protective agency is obligated to "act[ ] as an arm of the court in the
best interests of the minor" (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1234), and is
fully "accountable to the court" (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1166).
After the court has found visitation appropriate, for judicial economy and practical
reasons a child protective agency is best suited to implementing the order and making
necessary modifications in the face of often rapidly changing circumstances. (See In re
Brittany C. (2011) 191 Cal.App.4th 1343, 1356 (Brittany); Moriah, supra, 23
Cal.App.4th at p. 1376.)
Under these principles, the court properly delegated to the Agency the authority to
decide when it was appropriate to elevate the electronic visits to in-person visits.
Because this delegation concerned the manner of the visits (in-person or electronic), the
court could properly defer this decision to the social worker based on the parties' progress
and the changing needs and interests of both Mother and E. Additionally, the court had a
reasonable basis to require the Agency to consider the wishes of E and the opinions of his
therapist in making its determination. The court and all parties understood the court's
visitation order was made with the stated goal of reestablishing a positive relationship
between Mother and E, while protecting E from further abusive conduct. Input from this
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older child and his therapist would only promote better decisionmaking to reach these
objectives. (See Brittany, supra, 191 Cal.App.4th at p. 1358.)
To the extent Mother argues the trial court did not have the discretion to initially
order Skype visitation rather than in-person visitation, the argument is without merit.
A juvenile court's visitation orders "must be viewed in the context of the family
dynamics in play." (Brittany, supra, 191 Cal.App.4th at p. 1356.) In this case, the minor
was a preteen who did not want to spend time with Mother because she had been
emotionally abusive to him. The social worker and therapist concurred that it would be
detrimental to this child to continue the in-person visitations until Mother gained some
insight into her behavior that was damaging her son. The record makes clear that all
parties were attempting to repair the relationship by taking "baby steps" to promote
healthy, structured contact between mother and son. The court acted well within its
discretion in concluding that this would best be achieved by starting with electronic
communications.
Mother devotes large portions of her appellate briefing to discussing the
qualitative differences between in-person visits and electronic visits. She notes that
electronic forms of communication often "lack the intimacy that only personal, one-on-
one contact can convey." She asserts: "Personal contact allows the full range of human
sensory power, including touch, smell, and even taste to come into play, whereas
electronic communication can, at best, include only sounds, and sometimes, sight."
Although accurate, these observations do not demonstrate error in this case. The
court found that at the time of the hearing allowing in-person visitation—even if
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supervised—would negatively impact E's mental health. Based on this finding, the court
could have ordered no visitations until Mother was able to terminate her inappropriate
behaviors when in E's presence. (See In re Mark L. (2001) 94 Cal.App.4th 573, 580-581;
see also Brittany, supra, 191 Cal.App.4th at p. 1357.) But the court wanted to provide
some form of contact to promote the long-term relationship. The court's decision to do so
by permitting electronic communications was not an abuse of discretion. Although we
agree electronic visits (whether on a computer/phone screen or by telephone) are not the
same as personal visits, we reject Mother's argument that a court has no discretion to
order the more limited electronic visits under any circumstances. A court may order this
form of communication if the evidence shows the visits are in the child's best interests
and would promote reunification goals.
We also reject Mother's contention that because electronic forms of visits are
different from in-person visits, a court cannot delegate the decision when to elevate those
visits to an Agency social worker. Mother does not challenge the social worker's
authority to decide when in-person supervised visits should change to unsupervised
overnight visits. There is no logical distinction between this decision and the decision to
move from electronic visits to supervised in-person visits.
Mother also contends the court erred because the visitation order was improperly
vague as it did not identify the frequency and duration of the Skype visits. This argument
is not supported by applicable law. A juvenile court has the discretion to order
reasonable visits and to permit the social services agency to decide the frequency and
duration of the visits in conjunction with the parent, child, and the child's caretakers.
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(See Christopher, supra, 210 Cal.App.4th at p. 72; Moriah, supra, 23 Cal.App.4th at p.
1376.) The evidence showed that E played on a soccer team and was a 12-year-old who
presumably had a busy school schedule. The evidence further showed that Mother had
missed numerous scheduled visits and was difficult to reach. Although Mother's counsel
argued that Mother wanted frequent visitation, there was no evidence to support this
assertion. She did not attend the disposition hearing to personally assert an interest in
visitation or state a preferred visitation schedule. Given these facts, the court could
reasonably decide that the Agency should work out the details of the visitation order to
respond to the particular family members' schedules, availabilities, needs, and desires. If
Mother or her counsel believes the Agency is not responding to her needs pertaining to
the visitation schedule, Mother has the option of bringing this issue before the court.
DISPOSITION
Order affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
AARON, J.
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