In re K.A. CA4/1 ( 2021 )

Filed 12/29/21 In re K.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.A. et al., a Person Coming
Under the Juvenile Court Law.
D079269
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J516600B,C)
Plaintiff and Respondent,
v.
J.G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
This is the second appeal by J.G. (Mother) in juvenile dependency
proceedings involving her two daughters (K.A. and S.G.). In the prior appeal,
we affirmed the juvenile court’s orders declining to return K.A. and S.G. to
Mother’s care following the six-month review hearing. Thereafter, Mother’s
threatening behavior caused emotional harm to the girls, leading the court to
grant a petition filed pursuant to Welfare and Institutions Code section 3881
to terminate all visits between Mother and the children pending a selection
and implementation hearing. Mother contends the juvenile court erred in
granting this petition both as a matter of law and by abusing its discretion in
finding the continued visits to be detrimental to the children. We conclude
the juvenile court did not err in granting the petition and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As discussed in our prior opinion, “[i]n October 2019, the San Diego
County Health and Human Services Agency (the Agency) petitioned the
juvenile court under section 300, subdivisions (b) and (d) on behalf of five-
year-old K.A. and under section 300, subdivision (b) on behalf of one-year-old
S.G. The Agency alleged that Mother was unable to protect the children from
physical harm and that K.A. had been sexually abused.” (See In re K.A.
(Apr. 2, 2021, D078028) [nonpub.opn.].) At a jurisdiction and disposition
hearing in February 2020, the juvenile court sustained the allegations of the
petitions.
Our prior opinion discussed the history of these proceedings up to the
six-month review hearing, held on September 29, 2020. At that hearing, the
juvenile court found that returning the children to Mother’s care would create
a substantial risk of detriment. On appeal, we affirmed that order.
1 All further statutory references are to the Welfare and Institutions
Code.
2
The juvenile court ordered supervised phone and video visits with
Mother and gave the Agency discretion to expand to supervised in-person
visits. Thereafter, the Agency explained that due to the need for the case to
be assigned to a new social worker after the previous social worker obtained a
restraining order against Mother, it would need time to assess whether in-
person visits were appropriate. In the meantime, the Agency continued to
facilitate video visits. From October to December 2020, Mother participated
in six video visits and one in-person visit with her daughters. The in-person
visit went well, but Mother had to be repeatedly reminded not to talk about
the case with her daughters. Due to Mother’s refusal to refrain from
discussing the case, the Agency decided that further in-person visits would
not be appropriate. The Agency also attempted to obtain a visitation coach
for Mother, but no provider would accept Mother as a client given the
multiple restraining orders against her arising from these proceedings.
In March 2021, Mother requested a special hearing to obtain a court
order to reinstate in-person visits. In a responsive report, the Agency noted
that Mother had been incarcerated in February 2021 following an arrest for
carrying a concealed 11 and a half-inch knife with a six-inch blade while
casing vehicles. The Agency also reported that Mother was sending
increasingly hostile emails, refusing to allow social workers inside her home,
and accusing the Agency of kidnapping the children to sell them for adoption.
In the social worker’s assessment, she opined that the Agency was concerned
Mother’s anger toward the Agency could lead to harm to both the children
and Agency staff. Accordingly, the social worker recommended that the visits
remain “virtual and supervised.”
At the hearing on Mother’s petitions, minors’ counsel agreed with the
Agency and opposed Mother’s request for in-person visits. However, the court
3
sought to balance the Agency’s concerns with Mother’s need for visits by
ordering the Agency to provide one in-person visit on the condition that
Mother agree to not “utter a single hostile word or an angry word or
aggressive word.”
The in-person visit occurred in late March 2021.2 At the visit, Mother
read aloud a letter she wrote to K.A. that mentioned the case, but otherwise
the social worker noted that the visit “went well.” Due to concerns about
Mother’s comments, the Agency continued to recommend that there be no
additional in-person visits.
At the 12-month review hearing, the juvenile court found that
returning the children to Mother’s care would create a substantial risk of
detriment and terminated Mother’s reunification services. The court set the
matter for a selection and implementation hearing pursuant to section 366.26
and ordered that Mother was to have “liberal supervised visitation.” 3
However, three days later, the Agency filed a request to change the
court’s order to allow for only supervised video visits and to obtain a
temporary restraining order to protect the social worker assigned to the case
from Mother. In a report, the Agency explained that the day after the
12-month review hearing, Mother threatened to kill the social worker and
then commit suicide. The police took Mother to a hospital, where she tested
positive for methamphetamine, amphetamine, and alcohol and was
thereafter placed on an involuntary psychiatric hold. The Agency also
2 Mother mistakenly claims on appeal that the last in-person visit
occurred in November 2020 and does not discuss this visit.
3 Mother filed a notice of intent to file a writ petition in this court to
challenge the juvenile court’s orders at the 12-month hearing, but no petition
was filed after counsel was unable to find any viable issues for writ review.
4
received reports that Mother had threatened a neighbor with a gun and
another individual had obtained a restraining order against Mother in March
2021.
The juvenile court found the Agency had made a prima facie showing
and suspended in-person visits. The court also issued a temporary
restraining order as requested for the social worker.
Thereafter, Mother posted on social media to suggest that she had been
“ ‘[r]obbed’ ” of her daughters and that they were being sold into sex
trafficking. At an evidentiary hearing, the social worker testified that
although the girls enjoyed their in-person visits with Mother, she needed to
be redirected to avoid discussing inappropriate matters with her daughters.
The social worker opined that in-person visits were not safe for the children
or supervisors given Mother’s threats and the inability to obtain supervising
staff due to the restraining orders against Mother. In her own testimony,
Mother explained that she was participating in therapy and had no desire to
either kill herself or harm the social worker.
At the conclusion of the hearing, the juvenile court granted a
permanent restraining order on behalf of the social worker, but denied the
Agency’s request to preclude in-person visits. The court found that Mother
was not a threat to her daughters and the Agency would have to make efforts
to facilitate visits every other week. However, the court admonished Mother
that she was being given “one chance” to prove she could have appropriate
interactions and refrain from threatening the social workers. As the court
explained, any additional threats could lead the court to conclude Mother
may “do something physical in the presence of the kids” that would require
the court to restrict future visits.
5
Approximately two weeks later, the Agency filed a new request to
change the court’s order pursuant to section 388 to again request that in-
person visits be suspended until Mother’s “mental health stabilizes and a
secure guarded facility can be located.” The agency explained it was seeking
a change in the court’s order because of Mother’s continued threatening social
media posts, which accused the court and the Agency of child sex trafficking.
A new social worker filed a report detailing the threats by Mother. Mother
had called and sent text messages to K.A.’s former teacher and her school
principal making various threats and accusations. Throughout the month of
May 2021, Mother’s social media posts focused on her belief that the Agency
is an “International Human Sex Trafficking ring” that had stolen her
daughters. Mother had an outstanding arrest warrant for possession of
methamphetamine. The Agency also noted that Agency offices did not have
adequate security to accommodate a high-risk visitor like Mother.
The juvenile court found the Agency had made a prima facie showing,
temporarily suspended in-person visits, and set the matter for an evidentiary
hearing.
Thereafter, Mother sent text messages regarding the juvenile court’s
participation in sex trafficking and referred to a summer camp that K.A.
attended as an “ ‘illegal’ ” camp where children were molested. During a
video visit, Mother told K.A. that she was stolen and referred to “that child
abduction court.”
Mother’s aggressive behavior began to affect her daughters. After the
call ended, K.A. was crying and said she never wanted to talk to Mother
again. S.G. and K.A. were crying when they returned to their caregiver’s
home and had trouble sleeping for a few nights after the visit. At the next
visit, Mother again became angry and yelled at K.A. and said she had been
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“ ‘stolen,’ ” “ ‘abducted,’ ” and “ ‘brainwashed.’ ” After the visit, K.A. was very
upset. At another visit, Mother again told K.A. that she had been taken for
money and was abducted. Mother began to talk to K.A. about sex trafficking,
leading the social worker to terminate the visit. Throughout June 2021,
Mother continued to post on social media, including photographs of guns.
She also sent text messages referencing her gang affiliation and stated she
was “reach[ing] out” to convicted “lifers in [P]elican [B]ay” to assist her. A
sheriff’s deputy searched her home and reported that although he did not
locate the guns, he found methamphetamine and drug paraphernalia and two
known gang members were visiting with Mother.
During the last video visit before the hearing, the social worker
reported that Mother appeared “paranoid and aggressive.” Mother yelled at
the social worker and continued to make remarks about her daughters being
sexualized and trafficked. After the visit, K.A. stated that she did not want
to see or talk to Mother again. K.A. told her caregiver that she was scared
that Mother would come take them away and hurt the caregiver.
In July 2021, the Agency filed a new request for a restraining order for
the newest social worker after Mother sent a series of text messages
threatening to kill the social worker.
In two orders—one for K.A. and one for S.G.—the juvenile court
granted the section 388 petitions and suspended all visits between Mother
and her daughters. The court explained that it could understand Mother’s
frustration and viewed her earlier behavior as “harassment that was brought
on by the angst of the circumstances.” The court further noted that it
attempted to place the parties in a position where the Agency was required to
facilitate visits, but where Mother had a corresponding duty to act in a
positive way and show good faith. Although the court believed the Agency
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could have done better in facilitating visits, it concluded that Mother’s
escalating threats “creates a situation where . . . there has to be a line drawn
in the sand as to what can be acceptable or what can be explained away or
justified.”
Regarding the section 388 petitions, the court summarized the evidence
as establishing “a bad situation across the board because it is a terrible loop
of unfulfilled promises and expectations that feed on each other. The Agency
is afraid and Mother is frustrated. The caregivers are expressing concerns
because the contact with Mother manifests itself in regressive behavior with
the two girls where the girls have actually for their young age articulated a
great deal of angst and frustration and fear. And, yes, they love their
mother. That is clear. Mother loves her children, but the circumstances have
become unmanageable and the court has to protect not only the girls but has
to protect the Agency workers that are continuously under threat by
[Mother].”
Accordingly, the court found by clear and convincing evidence that the
visits were detrimental to the children and that it would be in their best
interest to suspend all visits.
Mother appealed.
DISCUSSION
Mother contends the juvenile court committed a “mistake of law” by
granting the section 388 petitions because the orders denied Mother her right
to visits with her daughters. She appears to assert she has a fundamental
right, as a matter of law, to continued visits with her daughters, regardless of
her own actions. She contends this court should review the juvenile court’s
decision under the de novo standard of review.
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Mother fails to establish that she has an absolute right to visits with
her daughters at this stage in the proceedings. After a minor has been
adjudged a dependent of the juvenile court, as in this case, the court may
limit a parent’s control over a child, including restrictions on the presumptive
right to visitation if the child has been removed from the parent’s physical
custody. (§§ 361, subd. (a)(1), 362, subd. (a).) Although visits should
generally be as frequent as possible, all orders for visitation must be
“consistent with the well-being of the child” and may not “jeopardize the
safety of the child.” (§ 362.1, subd. (a)(1)(A)-(B).)
These statutes vest the juvenile court with discretion to terminate all
visits if necessary to protect a child. (See, e.g., In re Daniel C.H. (1990)
220 Cal.App.3d 814, 838-839.) After a court has terminated reunification
services and ordered a hearing pursuant to section 366.26 be held, it may
suspend visitation between a parent and child if it finds, based upon a
preponderance of the evidence, that visitation would be detrimental to the
child. (§ 366.21, subd. (h); In re Manolito L. (2001) 90 Cal.App.4th 753,
760-762.)
Mother correctly notes that visitation is an important aspect of
maintaining the parent-child relationship and suspending visitation will
likely make it difficult for a parent to establish the existence of the beneficial
parent-child relationship exception to adoption at a selection and
implementation hearing. (See, e.g., In re Hunter S. (2006) 142 Cal.App.4th
1497, 1504 [“Courts have long recognized that, in the context of dependency
proceedings, a lack of visitation may ‘virtually assure[] the erosion (and
termination) of any meaningful relationship’ between mother and child.”].)
Mother relies on our Supreme Court’s recent decision in In re Caden C. (2021)
11 Cal.5th 614 (Caden C.), to support her claim regarding the importance of
9
visitation in this context. (See, e.g., id. at p. 625 [parental-benefit exception
applies “where the parent has maintained regular visitation and contact with
the child”].) Although we agree with the importance of visitation and the
Agency does not dispute that a parent’s regular visitation with a minor is a
relevant factor at a selection and implementation hearing, nothing in
Caden C. supports Mother’s claim to a fundamental, absolute right to
visitation here.
Similarly, Mother relies on this court’s decision in In re Valerie A.
(2007) 152 Cal.App.4th 987 (Valerie A.) to suggest she has a due process right
to visitation to preserve her ability to establish an exception to adoption, but
that decision does not support her claim. In Valerie A., we recognized the
importance of visitation, but also noted that a parent’s due process rights are
“ ‘compromised’ ” only when visitation is suspended “ ‘through no fault’ ” of
the parent. (Id. at p. 1006.) Here, the court did not arbitrarily suspend
visits, but rather acted in response to Mother’s own actions that were
detrimental to her daughters. Mother fails to cite any authority establishing
that she must be provided visits with her daughters following termination of
reunification services even if her own actions led the juvenile court to
conclude those visits would be detrimental to her daughters.
Thus, both the statutes applicable to juvenile dependency proceedings
and existing case authority support a juvenile court’s ability to limit or
terminate visitation upon a proper showing that doing so is in the child’s best
interest. Mother fails to demonstrate that the juvenile court lacked such
discretion and we see no basis to reverse the court’s orders on this ground.
Mother also argues the juvenile court could not “cover up” the Agency’s
violation of court orders to provide visits by subsequently terminating all
visitation. She asserts that “[t]he Agency’s blatant refusal to follow the
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court’s repeat visitation orders during the majority of the dependency case”
infringed on her fundamental rights.
The record, however, does not support Mother’s assertion that the
Agency violated the court’s visitation orders. At the six-month review
hearing, the juvenile court ordered only virtual visits but gave the Agency
discretion to allow in-person visits. The Agency complied with this order and
voluntarily facilitated an in-person visit.
Thereafter, in March 2021, Mother requested an order requiring
additional in-person visits, which the court granted by ordering the Agency to
provide one in-person visit. The Agency complied by facilitating an in-person
visit that same month. Mother implies on appeal that this visit never
occurred and that her last in-person visit was held in November 2020, but
she provides no evidence to undermine the direct evidence in the record
regarding the March 2021 in-person visit. Absent evidence to the contrary,
we accept that the visit occurred and that the Agency complied with the
juvenile court’s order.
The juvenile court made subsequent orders requiring in-person visits,
but each was closely followed by temporary orders suspending visits after the
Agency filed section 388 petitions seeking such a suspension based on
Mother’s escalating threats and actions. Although there were short periods
of time in which the juvenile court’s orders requiring in-person visits were in
effect before the Agency obtained temporary orders suspending visits, the
record suggests that any absence of visits in these interim periods was not
the result of the Agency’s intentional violation of court orders. Instead, the
juvenile court could reasonably conclude that the absence of visits in these
intervals was caused by the Agency’s need to assign a new social worker
following the issuance of restraining orders prohibiting contact between
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Mother and assigned social workers based on Mother’s threats. Then, in May
2021, when a new social worker attempted to contact Mother regarding
visitation, Mother did not answer her telephone and her voicemail box was
full. Mother then resumed her threatening behavior, leading the Agency to
seek a new court order to suspend visits. Thus, the record before the juvenile
court establishes that any failure to provide visits was not the result of the
Agency’s “blatant refusal” to follow court orders, but rather due to Mother’s
own actions. We therefore reject Mother’s claim that the Agency acted in bad
faith and violated the court’s visitation orders.
Alternatively, Mother contends the juvenile court abused its discretion
in granting the section 388 petitions because the Agency failed to establish
any changed circumstances or that it was in the best interests of her
daughters to suspend visitation. Pursuant to section 388, subdivision (a)(1),
“[a]ny parent or other person having an interest in a child who is a dependent
child,” may petition the court “for a hearing to change, modify, or set aside
any order of court previously made or to terminate the jurisdiction of the
court.” The moving party must establish (1) there has been a change of
circumstance or new evidence; and (2) the modification is in the child’s best
interests. (Ibid.; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A petition
under section 388 “is addressed to the sound discretion of the juvenile court,
and its decision will not be overturned on appeal in the absence of a clear
abuse of discretion.” (In re A.A. (2012) 203 Cal.App.4th 597, 612.) The
appellant has the burden on appeal to affirmatively show that the juvenile
court abused its discretion. (Ibid.)
As applied to orders regarding visitation, this court has held that a
juvenile court’s finding of detriment to support a suspension of visits is
reviewed under the substantial evidence standard of review. (In re Mark L.
12
(2001) 94 Cal.App.4th 573, 581, fn. 5 (Mark L.), disapproved on other grounds
in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) As our Supreme
Court has recently explained in a different context, we review the juvenile
court’s factual determinations to consider whether they are supported by
substantial evidence, but review the juvenile court’s balancing of those
factual determinations to determine whether terminating visits would be in
the child’s best interest under the abuse of discretion standard of review. 4
(Caden C., supra, 11 Cal.5th at pp. 640-641.)
Here, the juvenile court concluded that Mother’s escalating threats and
erratic behavior constituted a changed circumstance. Although Mother had
made many threats and acted erratically before the section 388 petitions
were filed, her behavior further escalated before the last hearing, leading the
court to impose “a line drawn in the sand as to what can be acceptable or
what can be explained away or justified.” More importantly, the juvenile
court focused on the real and substantial effect of Mother’s most recent
actions on her daughters as establishing a change in circumstance. Whereas
Mother’s earlier behavior mostly targeted the social workers, the court found
Mother’s actions during the latest visits “have upset and traumatized the two
girls and that manifests itself . . . in emotional outbursts.” As discussed
above, the social worker’s reports regarding the girls’ adverse reaction to
Mother’s behavior supports these findings.
For the same reason, the record supports the juvenile court’s conclusion
that contact with Mother was detrimental to the girls, such that it was not in
4 The Agency discusses in its respondent’s brief that juvenile courts have
applied a variety of standards in granting orders affecting visitation and
appellate courts similarly offer varying standards for review. The juvenile
court’s rulings here are correct under any of these standards.
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their best interests to continue visitation. (See In re Jacob P. (2007)
157 Cal.App.4th 819, 829 [observing in a different context that “ ‘The two
standards [best interest and detriment] “are basically two sides of the same
coin. What is in the best interests of the child is essentially the same as that
which is not detrimental to the child.’ ”].) The social worker reported the
children were frightened during their calls with Mother and had significant
periods of time after visits during which they cried and were unable to sleep.
The girls reported they were afraid of Mother and relieved when they did not
have to visit with her. Moreover, K.A. expressed concern that Mother would
harm her current caregiver and take her away from her current placement.
This evidence supports the court’s finding of detriment.
Mother suggests that instead of ordering a full suspension of all visits
between Mother and her daughters, the court should have permitted visits to
continue “in a therapeutic setting or by a neutral monitor, in person or by
video.” The record, however, establishes this was not possible: a social
worker testified that given the multiple restraining orders against Mother, no
visitation coach or visitation center would accept Mother and the Agency was
concerned for the safety of any person who may be tasked with supervising
visits.
Moreover, the juvenile court’s orders suspending all visitation were
focused on the effect of Mother’s actions during visits on her daughters.
Additional visits, either in person or by video, would present identical risks to
the girls’ emotional well-being. The juvenile court correctly determined all
visitation would be detrimental to the girls and we will not second-guess that
finding.
Considered altogether, the evidence establishes that Mother’s behavior
was causing significant harm to the girls in the form of emotional trauma. A
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juvenile court may properly suspend visitation when “forced contact” might
lead to emotional harm. (Mark L., supra, 94 Cal.App.4th at p. 581; In re D.B.
(2013) 217 Cal.App.4th 1080, 1090.) Here, the emotional harm was
detrimental to the girls such that the juvenile court reasonably concluded it
was not in their best interests to continue visits with Mother. Accordingly,
the juvenile court did not abuse its discretion in granting the Agency’s
section 388 petitions to protect the children by ending their visits with
Mother.
DISPOSITION
The orders are affirmed.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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