In re C.S. ( 2022 )

Filed 6/13/22 Certified for Publication 6/30/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re C.S., a Person Coming B312003
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
20CCJP05551A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CASHANDA P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Cynthia A. Zuzga, Juvenile Court Referee.
Affirmed.
Brian Bitker, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Melania Vartanian, Deputy County
Counsel, for Plaintiff and Respondent.
________________________
Cashanda P. appeals the order terminating dependency
jurisdiction over her 12-year-old daughter, C.S., and the juvenile
custody order providing for monitored visitation between
Cashanda and C.S. in a therapeutic setting for up to twice a week
for two hours per visit “when Minor’s therapist says they can
begin.” Cashanda contends the juvenile court abused its
discretion in terminating its jurisdiction with an order awarding
sole physical and legal custody to C.S.’s father, Ryan S., without
first providing services that attempted to repair the relationship
between Cashanda and C.S. and the court’s visitation order
impermissibly delegated the authority to determine whether any
visits between Cashanda and C.S. would occur to C.S.’s therapist.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Dependency Petition
Cashanda has three children, each with a different father:
C.S., nine-year old Cameron C., and two-year-old Conner M. On
April 9, 2021, following Cashanda’s no contest plea, the juvenile
court sustained in part an amended dependency petition
pursuant to Welfare and Institutions Code section 300,
subdivisions (b)(1) (failure to protect) and (c) (serious emotional
damage),1 on behalf of all three children, finding, as to the
1 Statutory references are to this code.
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subdivision (b)(1) count, that Cashanda has a history of mental
and emotional problems that, without treatment, placed the
children at risk of serious physical harm and, as to the
subdivision (c) count, that Cashanda emotionally abused C.S. “by
using derogatory language toward the child on multiple
occasions. The child has mental and emotional problems
including suicidal ideation, and self-harming thoughts due to the
mother’s conduct.” Cassandra’s actions, the court found, placed
C.S. and her two siblings at a substantial risk of suffering
emotional harm.2 The children’s fathers, including Ryan, were
nonoffending.
The evidentiary bases for the juvenile court’s jurisdiction
findings were contained in the jurisdiction/disposition report
prepared by the Los Angeles County Department of Children and
Family Services and admitted into evidence at the April 9, 2021
hearing. The report quoted C.S. as saying, “Once, I wanted to
hurt myself because my mommy was really mean to me and
called me fat. It made me want to cut myself with a knife, but I
didn’t do it. I wouldn’t do anything like that.” C.S. continued,
“My mom used to say things to me like, ‘I wish I never had you,’
‘you’re retarded,’ and she would always call me a ‘[s]tupid bitch.’
She would say those things to me almost every day. . . . She
makes nasty and rude comments toward me. Whenever she calls
me names, it makes me feel a little sad. . . . She’ll talk to her
2 The court dismissed an additional count under
subdivision (b)(1) alleging Cashanda and Ryan had failed to
obtain necessary therapeutic services for C.S.’s mental and
emotional problems and a similar count under subdivision (j)
(abuse of sibling).
3
friends on the phone about me and post things on Facebook about
me.”
Ryan confirmed Cashanda’s abusive treatment of C.S. “The
way my daughter was being treated was pretty bad. Distraught
is not a good word to describe the way she was feeling.
Traumatic is not a good word to describe what she had to go
through. Once she was able to come and live here with me, it was
like she had been kidnapped or a POW that was finally able to be
home with family.” Ryan described C.S.’s recurring nightmares
“where someone is kidnapping her and taking her away from us”
and told the social worker C.S. cried and hid in a closet when she
thought Cashanda was coming to take her. Aja, Ryan’s wife
(C.S.’s stepmother), heard C.S. say she would hurt herself if she
had to go back to live with Cashanda and reported that Cashanda
had a history of calling C.S. demeaning and derogatory names,
which appeared to traumatize the child. C.S.’s maternal
grandmother and her maternal aunt were also told by C.S. that
she would hurt herself if she had to return to Cashanda’s care.
As for Cashanda’s mental state, according to the maternal
grandmother Cashanda had unaddressed mental health issues:
Cashanda had been diagnosed with bipolar disorder and
depression; she was prescribed psychotropic medication but had
never been compliant. Cameron’s father reported Cashanda had
deep psychological issues and was “disturbed.” Conner’s father
described Cashanda as “reckless” and stated she had tantrums,
became violent and acted out for no apparent reason.
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2. Disposition
At the disposition hearing held in the afternoon following
the jurisdiction hearing, the court declared C.S. and her
two siblings dependent children of the court and removed them
from Cashanda’s care and custody. The court ordered Cameron
and Conner to remain released in the homes of their fathers
under the supervision of the Department and directed Cashanda
to participate in enhancement services, including individual
counseling with a licensed therapist.
C.S. was also placed with her father. After stating its view
that there was no hope of Cashanda reunifying with C.S., the
court immediately terminated dependency jurisdiction over C.S.
and stated it would enter a juvenile custody order granting sole
physical and legal custody of C.S. to Ryan with monitored
visitation for Cashanda in a therapeutic setting. The custody
order entered the following week provided for monitored
visitation in a therapeutic setting for Cashanda twice a week for
two hours per visit “when Minor’s therapist says they can begin.”
DISCUSSION
1. The Court Did Not Abuse Its Discretion in Terminating
Jurisdiction over C.S. Without Providing Services to
Cashanda
As this court explained in In re Destiny D. (2017)
15 Cal.App.5th 197, 205-206, “At the jurisdiction stage of a
dependency proceeding, the court determines whether the child is
a person described by section 300. [Citations.] If the juvenile
court finds a basis to assume jurisdiction, the court is then
required to hear evidence on the question of the proper
disposition for the child. [Citations.] (Fn. omitted.) Typically,
once the child has been adjudged to be a dependent child
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pursuant to section 360, subdivision (d), the juvenile court
determines what services the child and family need to be
reunited and free from court supervision. [Citations.] The court
then sets a review hearing, which must be held within six
months, to evaluate the family’s circumstances and decide
whether continued dependency jurisdiction is necessary.”
However, because the Legislature has “grant[ed] the juvenile
court broad authority to enter orders to protect a dependent child
and reunite the family and terminate jurisdiction as quickly as
possible” (id. at p. 207), the court has discretion at the close of the
disposition hearing “to terminate dependency jurisdiction when
the child is in parental custody and no protective issue remains.”
(Ibid.; accord, In re D.B. (2020) 48 Cal.App.5th 613, 624 [if the
child is in parental custody and juvenile court services and
ongoing supervision are not necessary to protect the child from
harm, the juvenile court’s obligation to reunite the family and
terminate jurisdiction as quickly as possible includes the
discretion to terminate jurisdiction at disposition].)3
3 We explained in In re Destiny D., supra, 15 Cal.App.5th at
page 208, that the conclusion the juvenile court may in an
appropriate circumstance terminate jurisdiction at the close of a
disposition hearing was consistent with (even arguably compelled
by) the court’s authority under section 361.2 to place a dependent
child with a noncustodial parent at disposition and order that the
parent become the legal and physical custodian of the child. “It
simply makes no sense to conclude, as [appellant father] urges,
that the Legislature intended to authorize the juvenile court to
terminate its jurisdiction at disposition after placement of a child
with a noncustodial parent when there is no longer a reason for
court supervision and not afford the juvenile court the same
discretion when the child has been released to a custodial parent
6
C.S.’s safety was endangered by her exposure to
Cashanda’s abusive parenting, and the court’s order awarding
Ryan sole physical and legal custody while limiting Cashanda to
monitored visits in a therapeutic setting resolved that issue.
There was no longer any reason for court supervision.
Cashanda’s argument that terminating dependency
jurisdiction deprived her of the opportunity to repair her
relationship with C.S. is misplaced. Because C.S. remained with
Ryan, a custodial parent, Cashanda was not entitled to
reunification services. (See § 16507, subd. (b) [“[f]amily
reunification services shall only be provided when a child has
been placed in out-of-home care, or is in the care of a previously
noncustodial parent under the supervision of the juvenile court”];
In re Destiny D., supra, 15 Cal.App.5th at p. 212 [when child
remains placed with one of two custodial parents, parent not
retaining custody is not entitled to reunification services];
see also In re A.L. (2010) 188 Cal.App.4th 138, 145 [no
reunification services are called for when a child is not removed
from her custodial parent].)
Nor was C.S. entitled to what are referred to as
enhancement services, “child welfare services offered to the
parent not retaining custody, designed to enhance the child’s
relationship with that parent.” (Earl L. v. Superior Court (2011)
199 Cal.App.4th 1490, 1497, fn. 1; see In re A.C. (2008)
169 Cal.App.4th 636, 642, fn. 5 [“‘enhancement’ services are ‘not
designed to reunify the child with that parent, but instead to
enhance the child’s relationship with that parent by requiring
that parent to address the issues that brought the child before
and orders made at disposition have fully resolved any issue of
continuing risk of harm.” (In re Destiny D., at p. 209.)
7
the court’”].) An order for enhancement services is subject to the
court’s discretion. (See § 362, subd. (a); In re Destiny D., supra,
15 Cal.App.5th at p. 212; In re A.L., supra, 188 Cal.App.4th at
p. 145.) Here, the Department was ordered at the detention
hearing in October 2020 to provide Cashanda “predisposition
family reunification services,” including referrals for a psychiatric
assessment and mental health treatment. The court also ordered
immediate therapy for C.S. and conjoint counseling for C.S. and
Cashanda in a therapeutic setting once that was approved by
C.S.’s therapist. The court’s decision six months later not to
continue jurisdiction over C.S. simply to provide additional, to-
date-unsuccessful services for Cashanda, even though the child
was safely placed with her father, was neither arbitrary nor
irrational. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318
[under abuse of discretion standard, order must be affirmed
unless juvenile court has “‘“exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd
determination”’”]; In re Destiny D., at p. 213 [same].)
Cashanda’s reliance on In re Ethan J. (2015)
236 Cal.App.4th 654 is unpersuasive. The juvenile court in In re
Ethan J. had ordered a permanent plan of legal guardianship for
eight-year-old Ethan. Ethan’s maternal grandmother was
appointed Ethan’s legal guardian. The court initially ordered one
“unforced and unsupervised” visit per month for Ethan’s mother
at her residence. (Id. at p. 657.) The court subsequently ordered
more liberal visitation, to be arranged by the mother and the
maternal grandmother, who had a strained relationship. Ethan,
however, refused to visit with his mother. (Id. at p. 659.) At a
further hearing the court ordered therapeutic supervised
visitation between the child and his mother but required Ethan
8
be evaluated by a therapist before the first joint session was
scheduled. Ethan refused to be transported to the therapist;
explained he had no desire to visit with his mother, who had said
she wished the maternal grandmother was dead; and insisted
speaking to a therapist would not be helpful. (Ibid.) The juvenile
court terminated dependency jurisdiction, explaining, “‘[I]f I
continue dependency . . . it’s just going to exacerbate the anger.
It’s [a] difficult if not impossible situation but there's [nothing] I
can do about it.’” (Ibid.)
The court of appeal reversed. The court first explained
that, when, as in the case before it, a relative has been appointed
a child’s legal guardian and the child had been in the legal
guardian’s home for at least six months, section 366.3,
subdivision (a), required the juvenile court to terminate
dependency jurisdiction and retain jurisdiction over the child as a
ward of the guardianship, absent a finding of “exceptional
circumstances.” (In re Ethan J., supra, 236 Cal.App.4th at
p. 660.) The child’s refusal to agree to any visits, the appellate
court concluded, constituted such an exceptional circumstance
“because it effectively precluded any prospect of visitation” and
left the mother without any viable legal remedy. (Ibid.) The
court emphasized that section 366.26, subdivision (c)(4)(C),
requires the juvenile court in selecting legal guardianship as a
child’s permanent plan to make an order for visitation with the
parents unless it finds that visitation would be detrimental to the
physical or emotional well-being of the child. Yet the juvenile
court had terminated its dependency jurisdiction without a
finding visitation would be detrimental to the child while
recognizing its visitation order was not going to be honored. As
the court observed, “Ethan had successfully refused visitation for
9
approximately six months. Thus, by its order, the juvenile court
virtually guaranteed that visitation would not occur.” (In re
Ethan J., at p. 661.)
Both the legal context and factual circumstance of the case
at bar are quite different from the situation before the court in
In re Ethan J., supra, 236 Cal.App.4th 654. Unlike section
366.26, subdivision (c)(4)(C), which mandates visitation between
child and parents when legal guardianship has been ordered,
absent a finding that visitation would be detrimental to the child,
when dependency jurisdiction is terminated with the child in the
custody of one of his or her parents, section 362.4, subdivision (a),
commits to the sound discretion of the juvenile court the
authority to make an order determining a noncustodial parent’s
visitation. Unlike the mother in In re Ethan J., Cashanda had no
right to visitation and, therefore, no basis for requesting
additional therapeutic services with her child that would justify
continuing dependency jurisdiction.
Equally important, unlike the child in In re Ethan J., who
refused to visit his mother and also refused to see a therapist to
discuss the problem, the record before the juvenile court
indicated C.S. “was working with her therapist to work up to
having those therapeutic visits with Mom.” There was no
suggestion the visitation ordered by the court would not, in fact,
occur. Under these circumstances, with C.S. safe in the care and
custody of her father, terminating dependency jurisdiction was
entirely appropriate. Any future issues regarding visitation can
be addressed by the family court, which has ongoing jurisdiction
over custody and visitation now that dependency jurisdiction has
been terminated. (See § 364.2, subds. (b), (c); In re Cole Y. (2015)
233 Cal.App.4th 1444, 1456 [following termination of dependency
10
jurisdiction and entry of a juvenile court custody and visitation
order, any decision to modify that order is within the province of
the family court].)
2. The Court Did Not Impermissibly Delegate Authority
over Visitation to C.S.’s Therapist
The Supreme Court in In re Chantal S. (1996) 13 Cal.4th
196 considered a juvenile custody order issued on termination of
dependency jurisdiction that ordered visitation between the child
and her father to be facilitated by the child’s therapist but not to
begin until “father’s chosen therapist determined father had
made ‘satisfactory progress for a time’” (id. at p. 213). The Court
rejected the father’s argument the order improperly delegated
judicial authority to the two therapists. (Ibid.) The Court first
observed the order gave the child’s therapist no discretion
regarding visitation. (Ibid.) The Court then explained, because
the juvenile court had apparently concluded it would be
detrimental to the child for visitation with the father to begin
immediately, the juvenile court had two, entirely appropriate
options: It could deny all visitation and leave it to the father to
seek a modification of the order in family court once he could
demonstrate a change in circumstance; or it “could issue the
order it did, specifying that visitation commence in a carefully
restricted setting when father's chosen therapist determines that
father has progressed satisfactorily.” (Id. at pp. 213-214.) We
summarized the holding of In re Chantal S. in the slightly
different context of visitation as an element of reunification
services in In re S.H. (2003) 111 Cal.App.4th 310, 319,
explaining, “[T]he Department and mental health professionals
11
working with it and with the dependent child may determine
when visitation should first occur.”4
That is precisely the nature of the juvenile court’s visitation
order here. Rather than prohibiting all visitation, leaving it to
Cashanda to seek a modification in family court at some future
point when C.S. has progressed in her therapy and immediate
visitation would not threaten her emotional stability, the juvenile
court ordered visitation and specified the frequency and length of
visits, but reserved to C.S.’s therapist the determination when it
would be safe for C.S. to begin visits with her mother in a
therapeutic setting.
Notwithstanding the Supreme Court’s approval of a
substantively identical visitation order in In re Chantal S.,
Cashanda contends the juvenile court’s order in this case
impermissibly delegated judicial authority to C.S.’s therapist. To
make this argument, Cashanda first cites case law holding it is
impermissible for the court to authorize a third person, whether
social worker, therapist or the child, to determine whether any
visitation will occur. (See, e.g., In re Julie M. (1999)
69 Cal.App.4th 41, 51 [order giving child the option to either
consent or refuse visits with mother unconstitutionally abdicated
court’s discretion to determine whether visitation would occur];
In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1478-1479 [order
4 We grounded our analysis of the visitation order challenged
in In re S.H., supra, 111 Cal.App.4th 310 on the fundamental
principle that “[v]isitation is a necessary and integral component
of any reunification plan.” (Id. at p. 317.) Here, of course,
jurisdiction was terminated contemporaneously with issuance of
the custody and visitation order; there was no reunification plan
for Cashanda.
12
providing “Father has ‘no visitation rights without permission of
minors’ therapists,’” thus giving children’s therapist sole
discretion to determine whether visitation with father will occur,
constituted unlawful delegation of judicial authority]; see also
In re S.H., supra, 111 Cal.App.4th at p. 418 [“[t]he discretion to
determine whether any visitation occurs at all ‘must remain with
the court, not social workers and therapists, and certainly not
with the children’”].)
Cashanda then asserts, contrary to the express wording of
the order, that C.S.’s therapist had discretion to decide whether
visits would occur, not simply when they would begin. Cashanda
purports to support this through-the-looking-glass interpretation
of the order’s language5 by noting no criteria were established by
which the therapist was to assess when it would be sufficiently
safe for C.S. to see her mother and suggesting that it was the
child’s therapist, as in In re Chantal S., not the parent’s who was
to judge when visits should begin, effectively gave the child a veto
over visitation.
None of these purported distinctions withstands analysis.
Neither C.S. nor her therapist had a veto power over visitation
with Cashanda. As discussed, the juvenile court ordered visits
were to occur and prescribed how frequently and for how long.
The therapist’s only role, as in In re Chantal S., was to decide
when it was safe for visits to begin: The limited nature of that
discretion is the same as it was in In re Chantal S. In addition,
because the juvenile court’s concern was for C.S.’s reaction to
5 “‘When I use a word,’ Humpty Dumpty said . . . , ‘it means
just what I choose it to mean—neither more nor less.’” (Carroll,
Through The Looking Glass (1871), as quoted in Ruiz v. Bally
Total Fitness Holding Corp. (1st Cir. 2007) 496 F.3d 1, 8.)
13
Cashanda—Cashanda’s verbal abuse triggered traumatic
emotions in C.S.—it was certainly reasonable for C.S.’s therapist,
not Cashanda’s, to make that decision. Finally, although, as
Cashanda argues, our colleagues in Division Four of this court in
In re Donnovan J., supra, 58 Cal.App.4th 1474 expressed concern
about the absence of criteria “such as satisfactory progress” in the
context of a visitation order that denied any visitation until the
child’s therapist approved, here the court had been advised C.S.
was working with her therapist toward having visits with
Cashanda. Even if “satisfactory progress” were a meaningful
benchmark—a somewhat doubtful proposition—it is reasonably
implied in the court’s order in these circumstances.
In sum, the visitation order granting Cashanda visitation
rights and expressly stating the frequency and duration of visits,
while requiring C.S.’s therapist to approve the start of those
visits, did not constitute an unlawful delegation of judicial
authority.
DISPOSITION
The order terminating jurisdiction and the juvenile custody
order are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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Filed 6/30/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re C.S., a Person Coming B312003
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
20CCJP05551A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN ORDER CERTIFYING
AND FAMILY SERVICES, OPINION FOR
PUBLICATION
Plaintiff and Respondent, (NO CHANGE IN
THE APPELLATE
v. JUDGMENT)
CASHANDA P.,
Defendant and Appellant.
THE COURT:
The opinion in this case filed June 13, 2022 was not
certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c), the plaintiff and respondent’s request pursuant to
California Rules of Court, rule 8.1120(a) for publication is
granted.
IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and
ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.
___________________________________________________________
PERLUSS, P. J. SEGAL, J. FEUER, J.
2