In re E.E. CA4/1 ( 2013 )

Filed 6/28/13 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
D063080
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J517898A-B)
Plaintiff and Respondent,
v.
RUBEN E. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of San Diego County, David B.
Oberholtzer, Judge. Affirmed.
Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant
and Appellant Ruben E.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant Edwin V.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Ruben E. appeals a juvenile court order that requires his visits with his daughter,
E.E., occur only during conjoint therapy sessions at his expense. Edwin V. appeals an
order made at the same hearing requiring his visitation with his daughter, E.E.'s half-
sister, A.P., remain supervised.1 We hold the court did not abuse its discretion in making
these visitation orders and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2010, the San Diego County Health and Human Services Agency
(the Agency) petitioned under Welfare and Institutions Code section 300, subdivision
(b)2 on behalf of seven-year-old E.E., five-year-old A.P., and their younger half-sister,
M.B., alleging (1) the girls' mother, Lorena P., had left them unattended and inadequately
supervised on a busy street and when Lorena was located two hours later, she was
intoxicated; (2) the children were exposed to violent confrontations in the family home
1 Edwin also objects that dependency court minute orders designate him as A.P.'s
biological father, rather than her presumed father. He asserts these incorrect designations
of his paternal status threaten his statutory rights and he asks this court to correct the
record. Edwin is correct that at the hearing on October 7, 2010, the court found him to be
A.P.'s presumed father and entered a judgment of paternity to that effect. However, the
error in the minute orders appears to be merely clerical. Edwin has not shown that he
suffered any prejudice from the error and his concern that he may suffer prejudice in the
future is only speculation.
2 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
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between M.B.'s father, Dale B., and Lorena, and Dale and Lorena were in violation of an
active restraining order; and (3) Lorena drank alcoholic beverages to excess, rendering
her unable to provide adequate care for her children.
The social worker reported the children were taken into custody after Lorena left
them on a street when she was walking to a liquor store. She was intoxicated and told
them she wanted them to die.
Ruben and Edwin both disclosed criminal histories. Ruben said he had frequently
spent time with E.E. during the first year of her life and he had seen her two times in the
past year. He wanted to take care of her, but was not financially able to do so at that
time. Edwin said he had spent time with A.P. during times when he was not incarcerated,
and she had lived with him and the paternal grandmother for several months in 2007
while Lorena was using methamphetamine. He said he was willing to participate in
services. Both Ruben's and Edwin's case plans required them to participate in parenting
education, a 12-step program, and drug testing.
In October 2010, the court found the allegations of the petitions to be true. The
court found E.E. and A.P. to be dependent children of the juvenile court and ordered
them placed in relative care.
Ruben was released from jail in January 2011 after being incarcerated because of a
domestic dispute with his girlfriend. The social worker issued him a bus pass for March,
but he did not visit E.E. He telephoned her twice that month. He tested negative for
drugs in January and February. Edwin was paroled into an in-patient drug program, but
he violated his parole conditions when he used methamphetamine.
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At the six-month review hearing in April 2011, the court found neither Ruben nor
Edwin had made substantive progress with the provisions of his case plan. However, the
court continued each man's services for an additional six months.
The social worker said the Agency had lost contact with Ruben in February 2011
and it was reported that he had left California. Edwin was released from custody and
began substance abuse out-patient treatment. He said he had been trying to visit A.P.
every weekend.
At the 12-month review hearing in November 2011, the court continued the
children's placements, ordered six more months of services for Edwin, but found Ruben
had not made substantive progress and terminated his services.
Subsequently, Edwin stopped attending substance abuse treatment. The social
worker reported he had been having clean drug tests, but he did not test in January 2012.
At the 18-month review hearing in March 2012, the court found Lorena had made
substantive progress with the provisions of her case plan and ordered E.E. and A.P.
placed with her. It found Edwin had not made progress and terminated his services.
In August 2012, the social worker reported that Edwin, his girlfriend and their
newborn child were living with Edwin's parents. Edwin had visits with A.P. twice each
week supervised by his parents. He had been denied his request for unsupervised visits
because he had not drug tested when requested and A.P. had reported he was sometimes
not at the grandparents' home when she was visiting. In November, however, the family
court mediator recommended Edwin have regular unsupervised visitation with A.P. at the
grandparents' home.
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Ruben had no contact with the Agency from February 2011 until he returned to
San Diego in May 2012. In May and June, the social worker supervised three visits. The
visits went well, but Ruben said he had accepted a job in northern California and would
soon be leaving San Diego. Then, in August, he reported he was back in San Diego and
wanted to visit E.E. Lorena said E.E. was hurt that Ruben had been in and out of her life
and had not been a reliable source of support. However, he telephoned E.E. regularly and
by mid-October she was ready to visit him.
At the family maintenance review hearing in December 2012, the social worker
testified that Edwin had participated in a substance abuse program for a time, but then
stopped attending, saying it was a waste of time. She said he claimed he had been
attending 12-step meetings and had been sober for ten months. The social worker did not
agree with the family court services mediator's recommendation that Edwin have
unsupervised visits with A.P. She said he had not completed any part of his case plan, his
sobriety was short lived and he had been in drug abuse treatment for only a short time.
Edwin testified he visited A.P. three times each week. He claimed he had not used
heroin since February 2012 and denied using methamphetamine or alcohol. He said he
had not drug tested in June when asked to do so because he did not have proof of his
identity with him that day. He said he was in a drug abuse treatment program and a 12-
step program.
After considering the evidence and argument by counsel, the court ordered E.E.
and A.P. placed with Lorena and terminated jurisdiction. It ordered Ruben's visitation
with E.E. be only during conjoint therapy sessions at Ruben's expense. It ordered
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Edwin's visits with A.P. continue to be supervised and ordered him to drug test every
week for six months, and noted six months of clean tests would be sufficient to allow him
to bring a motion in family court seeking unsupervised visitation.
DISCUSSION
I. Ruben's Appeal
Ruben contends the court abused its discretion by requiring his visitation with E.E.
be only during conjoint therapy at his expense. He argues since he cannot afford to pay
for therapy, he will in effect be denied visits. He argues it is in E.E.'s best interests for
them to have contact.
When the juvenile court terminates its jurisdiction over a child, the court may
issue an order determining the custody of, and visitation with, the child. (§ 362.4.)
When fashioning orders under section 362.4, the court is guided by the child's best
interests. (In re John W. (1996) 41 Cal.App.4th 961, 973; In re Jennifer R. (1993)
14 Cal.App.4th 704, 712.) The court considers "the totality of the child's circumstances
when making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196,
201.) Orders regarding visitation may be reversed only upon a clear showing of an abuse
of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) " 'The appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of reason.' "
(In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Ruben has not shown the court abused its discretion by requiring his visits with
E.E. be only during conjoint therapy. He had visited her only two times in 2010 and
three times in 2011, and had not been in contact with her during most of the dependency
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period. At first, he was incarcerated because of a domestic dispute with his girlfriend.
He was released in February 2011, but then the Agency could not locate him and it was
reported that he had moved out of San Diego County. He spoke to E.E. in April 2011
and promised to visit, but he did not keep his promise. He did not appear again until May
2012. He and E.E. had three supervised visits in May and June, but then he said he had
accepted a job in northern California and would be leaving San Diego. E.E. did not want
him to go, and Lorena said E.E. was so hurt by his lack of support she refused to see him
for a time. The court reasonably concluded that because E.E. had been emotionally upset
by Ruben's pattern of absenting himself from her life and not being a source of support
for her, it was in her best interests to require their visitation be in a therapeutic setting.
Ruben has not shown an abuse of the court's discretion.
II. Edwin's Appeal
Edwin contends the court abused its discretion by ordering his visitation with A.P.
remain supervised. He argues the family court mediator recommended lifting the
supervision requirement since he was compliant with an ongoing substance abuse
treatment program, had nine months of sobriety and had completed parole.
Edwin has not shown the court abused its discretion by requiring his visits
continue to be supervised. In August 2010, at the time the children became dependents
of the court, Edwin was in prison for a parole violation. His contact with A.P. had been
sporadic because he had been periodically incarcerated for criminal activity, and he
acknowledged a history of abusing heroin. He was released from custody in early 2011
and started out-patient treatment, but by February 2012, he had stopped attending, saying
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it was a waste of time. He did not drug test in September and admitted he would have
tested positive for marijuana if he had tested at that time.
Although Edwin was in an out-patient program drug treatment program at the time
of the hearing in December, his history of remaining in a program for a time and then
relapsing supports the juvenile court's decision to require supervision during visits to
continue until Edwin can demonstrate a longer period of sobriety. The fact that the
family court mediator recommended supervision no longer be required is not controlling.
There are significant differences between the family court and the juvenile court. Both
the family court and the juvenile court focus on the best interests of the child, but " '[t]he
presumption of parental fitness that underlies the custody law in the family court just
does not apply to dependency cases.' " (In re Chantal S., supra, 13 Cal.4th at p. 206.)
The juvenile court has been closely involved with protecting the child and has discretion
to make orders concerning custody without preferences or presumptions that are
considered in family court proceedings. (Ibid.) The court reasonably left the supervision
requirement in place, required Edwin to drug test once each week and ruled that six
months of clean tests would constitute changed circumstances sufficient to allow him to
file a motion seeking to lift the supervision requirement. The court's order was
appropriate. Edwin has not shown an abuse of discretion.
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DISPOSITION
The orders are affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
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