Y.L. v. Superior Court CA2/6 ( 2020 )

Filed 11/16/20 Y.L. v. Superior Court CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
Y.L., 2d Juv. No. B306926
(Super. Ct. No. 19JD-00184)
Petitioner, (San Luis Obispo County)
v.
THE SUPERIOR COURT OF
SAN LUIS OBISPO COUNTY,
Respondent;
DEPARTMENT OF SOCIAL
SERVICES, COUNTY OF SAN
LUIS OBISPO,
Real Party in Interest.
After a child is removed from parental custody in a
dependency action, the trial court must, subject to certain
statutory exceptions, order reasonable reunification services and
visitation. (Welf. & Inst. Code, § 361.5, subd. (a).)1 The parent’s
failure to contact and visit the child is grounds for terminating
services. (§ 361.5, subd. (a)(2).) Here a nine-year-old boy refused
to go to supervised visits or have phone contact with his mother
who had a history of mental health issues and was receiving
treatment. Y.L., the biological mother of J.L., seeks
extraordinary writ relief from a July 29, 2020 order denying her
petition for visitation (§ 388), and order terminating
reunification services. (Cal. Rules of Court, rule 8.452; Welf. &
Inst. Code, § 366.26.) We grant the petition and direct the trial
court to vacate its order terminating reunification services and
vacate the order setting the matter for a permanent placement
hearing.
Factual and Procedural History
On July 29, 2020, the trial court terminated services
at the 12-month review hearing. Appellant had a history of
depression, post-traumatic stress disorder, and alcoholism that
resulted in two involuntary hospitalizations for depression,
paranoia, and hallucinations. It placed J.L. at risk of harm and
resulted in two dependency actions. In the first action, J.L. (ages
5 through 7) suffered regressive behaviors, vomited before
supervised visits, and had toileting incidents. (San Luis Obispo
Sup. Ct. case No. 16JD00145.) Appellant and J.L. were reunified
and the case was closed in June 2018.
In May 2019, appellant stopped taking her
medication, made bizarre 911 calls to the police, and said that
she swallowed bleach while sleep walking. The landlord reported
that appellant was suffering a mental breakdown and had kept
1 All statutory references are to the Welfare and
Institutions Code.
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J.L. home and out of school. When a police officer made a welfare
check, appellant was bewildered and confused. J.L. tried to run
to the officer for safety but appellant pointed a Febreeze bottle in
J.L.’s face and yelled at him to sit down.
Appellant was gravely disabled and hospitalized from
May 9, 2019 to May 22, 2019. The San Luis Obispo County of
Department of Social Services (DSS) detained J.L. and placed
him with the foster family who hosted him a year earlier. After
the trial court sustained a petition for failure to protect (§ 300,
subd. (b)(1)), it ordered services and weekly supervised visits.
The first visits were cordial but J.L. said he was tired of
appellant’s lies and refused to go to supervised visits or take
phone calls. J.L.’s therapist reported it would be detrimental to
force visitation or conjoint therapy. The trial court reduced
supervised visits to once a month and stated: “[W]e’ve got to go
really slow[]. . . . I do not want to retraumatize [J.L.] again. . . .
[H]e’s obviously dealing with a lot of stuff.”
J.L. feared that he would be forced to live with
appellant and refused Zoom therapy even with the social worker
sitting next to him. The social worker described J.L. as a very
smart and active nine year old. He said he would not do therapy
because appellant “will lie about everything she did. . . . ‘[I]f I
agree to family therapy then they will say well you can do visits;
then they will make me do visits and then they will say well you
are doing visits you can go home; then they will send me home
and then they will say mom is doing well and close my case and
no one will help . . . [and] then she will stop taking her
medications.’”
The therapist reported that J.L. was doing
“extremely well” but “still not ready to participate in family
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therap” and was learning to assert himself. The therapist did not
want to “take away from that” and wanted J.L. to strengthen his
ability to assert himself and “work on his feeling of guilt towards
[appellant] and his ability to set appropriate boundaries with
her.”
12-month Review Hearing
At the 12-month review hearing, the trial court
denied appellant’s 388 petition to change visitation to twice a
month and “lift supervision, begin overnights, and a 30[-]day trial
visit . . . .” There was no change of circumstances. (In re Casey
D. (1999) 70 Cal. App. 4th 38, 47.) That was a given. J.L. did not
want to see appellant. Appellant was staying sober and
attending therapy but still trying to regain J.L.’s trust. The trial
court said: “The reality in many of these cases is that the parent
has irreparably damaged the relationship beyond salvage. And I
think it’s sad to say this is what’s occurred here.” The court
noted that Covid “has impacted our whole county” and “we’re
having a virtual court right now, and therapy, by and large, is
virtual, and visitation is sometimes virtual, and it’s not the same
. . . . It’s just a deeply ingrained trauma that [J.L.] is going to
need to work through as he grows up.” “It would be incredibly
detrimental to return [J.L.] to [appellant], and [appellant] herself,
recognizes that.” (Italics added.) The court terminated services
and set the matter for a permanent placement hearing.
(§ 366.26.)
Reasonable Reunification Services
The question presented is whether reasonable
reunification services were provided after J.L. refused to go to
supervised visits or maintain contact with appellant. It is a
question that answers itself. Reunification services and parental
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visitation and contact with the child go hand in hand. (See
§ 361.5, subd. (a)(2) [services may be terminated if parent fails to
contact and visit child].) The legislative goal is reunification if
possible. (In re Nolan W. (2009) 45 Cal. 4th 1217, 1218.)
At the 12-month review hearing, the trial court must
determine whether the services offered were designed to aid the
parent in overcoming the problems that led to the initial removal
of the child. (§ 366.21, subd. (f)(1)(A).) There is no-one-size-fits
all solution. “The court shall not order that a hearing pursuant
to [s]ection 366.26 be held unless there is clear and convincing
evidence that reasonable services have been provided or offered
to the parent or legal guardian.” (§ 366.21, subd. (g)(1)(C)(ii).)
On review, the question “is whether the record as a whole
contains substantial evidence from which a reasonable fact finder
could have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal. 5th 989, 1011.)
The record shows that appellant had made
significant progress dealing with her mental and
substance/alcohol abuse issues. She was seeing a therapist, was
drug free and sober, and agreed that J.L. was not ready to visit
but hoped with time and more opportunities for visitation, J.L.
would come around. That is what J.L.’s therapist recommended,
more time. J.L., however, had other ideas and sent a four-page
“Dear Judge” letter to the court and talked to the court in
chambers three times. The therapist said that J.L. was
empowering and asserting himself, and it was a good therapeutic
sign.
The trial court was faced with the dilemma of
balancing the competing interests of reunification and the
welfare of J.L. It had to ensure that visitation (even Zoom visits
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with the social worker seated next to J.L.) did not “jeopardize the
safety of the child.” (§ 362.1, subd. (a)(1)(B).) There was no
evidence that another six months of services and court ordered
supervised visits would be detrimental to J.L. J.L. did not want
to be “forced” to reunify with appellant and his therapist
cautioned the court to go slow. Whether unsupervised visitation
and reunification is possible with another six months of services
is unknown. What we do know is that a trial court may not
decline to enforce its own visitation order in deference to the
wishes of the child. (In re Hunter S. (2006) 142 Cal. App. 4th 1497,
1505.) Nor can a court terminate dependency jurisdiction
knowing that the child refused to participate in visitation. (In re
Ethan J. (2015) 236 Cal. App. 4th 654, 656; In re Julie M. (1999)
69 Cal. App. 4th 41, 48–49 [juvenile court may not give child
“absolute discretion” in deciding whether mother could visit].)
The statutory right to reunification services requires
supervised visits and open lines of communication between the
parent and child with appropriate time, place and manner
restrictions to protect the well-being of the child. (See In re
Moriah T. (1994) 23 Cal. App. 4th 1367, 1376.) “[W]hile the
juvenile court may allow the child to refuse to attend a particular
visit, to prevent the child from exercising a de facto veto power,
there must be some assurance that, should that occur, another
visit will be scheduled and actually take place. The simplest—
but, by no means, the only—way to accomplish this would be for
the juvenile court to order a minimum number of visits per
month and to impose any essential conditions (for example,
whether the visits are to be monitored or occur in a neutral
setting), while allowing the Department to organize other details
of the visitation. In no event, however, may the child’s wishes be
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the sole factor in determining whether any visitation takes place,
either as a formal matter or, as occurred in the case now before
us, by effectively giving the children the power to veto all visits.
[Citations].” (In re S.H. (2003) 111 Cal. App. 4th 310, 319-320.)
Disposition
Let an extraordinary writ issue directing the trial
court to vacate its July 29, 2020 finding that reasonable services
were provided, and vacate its order terminating reunification
services and setting a section 366.26 hearing. The trial court
shall enter a new finding that reasonable reunification services
were not provided, conduct a continued 12-month review hearing
at the earliest convenient time, and direct DSS to file an
amended case plan to enhance appellant’s relationship with the
child. At the continued 12-month review hearing, the trial court
shall provide appellant an additional period of reunification
services.
This court’s opinion is final forthwith as to this court
pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
We concur:
PERREN, J.
TANGEMAN, J.
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Charles S. Crandall, Judge
Superior Court County of San Luis Obispo
______________________________
Theresa G. Klein, for Petitioner.
No appearance for Respondent.
Rita L. Neal, County Counsel, Timothy McNulty,
Deputy County Counsel, for Real Party in Interest.