In re C.R. CA5

Filed 5/1/14 In re C.R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re C.R. et al., Persons Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPTARTMENT OF F068113
SOCIAL SERVICES,
(Super. Ct. No. 07CEJ300083)
Plaintiff and Respondent,
v. OPINION
L.G.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Mary Dolas,
Commissioner.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kevin Briggs, County Counsel, William G. Smith, Deputy County Counsel for
Plaintiff and Respondent.
* Before Levy, Acting P.J., Kane, J. and Franson, J.
-ooOoo-
The juvenile court appointed a relative as legal guardian and terminated
dependency jurisdiction over six-year-old C.R., five-year-old A.R., and three-year-old
V.R. (the children). Their mother, L.G., challenges the parental visitation order. We
affirm.
FACTUAL AND PROCEDURAL SUMMARY
Section 300 Petition
The children came to the attention of the Fresno County Department of Social
Services (the Department) in October of 2011, when mother was seen spitting at,
screaming at, throwing things at, and hitting her children. A Welfare and Institutions
Code section 3001 petition alleged, pursuant to subdivision (a), that mother used
excessive physical discipline on the children and their father, F.R., failed to protect the
children from mother.2 The petition further alleged, pursuant to section 300 subdivision
(b), that mother had a substance abuse problem that caused her to fail at reunification
with another child, G.R. It also alleged, pursuant to subdivision (j), that the children were
at risk of harm due to the earlier case involving G.R.
Detention
The November 2011 report prepared in anticipation of detention stated that the
children were in foster care. According to the report, mother had had a number of child
welfare referrals over the years involving three other children, most of which were found
to be inconclusive or which were evaluated out. But mother had been involved in a case
in 2007 in which she lost custody of G.R. due to her methamphetamine use. G.R. was
eventually adopted.
1 All further statutory references are to the Welfare and Institutions Code.
2 Father is not a party to this appeal.
2.
When questioned by the social worker about the current incident which brought
her to the attention of the Department, mother denied anything had happened. Mother
suggested the social worker check the children for bruises, which mother claimed were
nonexistent. The social worker did not want to leave the children with father, as he did
not agree that mother had been abusive to them.
On November 2, 2011, the juvenile court made a prima facie finding on the
petition and ordered the children detained in foster care.
Jurisdiction
The December 2011 report prepared in anticipation of jurisdiction stated that
mother and father were provided visitation with the children. The visits went well for the
most part, although mother seemed to have difficulty with the children at times. The
Department questioned mother’s parenting ability.
The Department was in the process of assessing relatives for placement of the
children. Mother denied drug use, and also denied testing positive for methamphetamine
at the time G.R. was born, stating those were merely accusations.
The Department recommended that the children not be returned to mother and
father. Mother was seen acting inappropriately during visits, and the Department thought
the children would be at risk if returned to father, who lived with mother.
At the December 14, 2011 hearing, counsel for mother and father both requested a
contested hearing, which was set for February 8, 2012, following a settlement conference.
Amended Petition
At the time scheduled for the contested jurisdiction hearing, the Department filed
an amended section 300 petition, pursuant to subdivision (b), that the children were at
risk of harm due to excessive physical punishment by mother and on father’s failure to
protect the children from mother. The amended petition did not contain any allegations
under subdivisions (a) or (j). Mother and father executed a waiver of rights and
submitted on the amended petition based on the social worker’s report and other
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information. The juvenile court found the petition to be true. The matter was set for
disposition March 14, 2012.
Disposition
In April of 2012, following a continuance, the Department recommended that
mother and father be denied reunification services pursuant to section 361.5, subdivision
(b)(10) and (11).3 The children were placed with their maternal aunt, who indicated a
willingness to care for the children long-term. The children were reported to be adapting
well to this placement. They were also enjoying visits with their parents.
Mother stated her desire to reunify with the children. Although she said she was
willing to participate in services, she did not think she needed them. She had enrolled in
a parenting class. But the Department was concerned that mother had not properly dealt
with the issues that caused her to earlier lose custody of G.R.. Mother appeared to have
sporadic and manic moods but denied that she needed mental health treatment.
On May 14, 2012, following a contested hearing, the juvenile court declared the
children dependents of the court and ordered them removed from mother and father.
Both mother and father were denied reunification services. A section 366.26 termination
hearing was set for September 10, 2012.
Further Developments
On August 13, 2012, at the direction of this court, the juvenile court vacated its
prior order denying the parents services. It then ordered the Department to submit a new
disposition report; the department had ultimately been unable to establish that the cause
of the removal and adoption of G.R., namely substance abuse, still existed with regard to
the children involved in the present case.
3 Section 361.5, subdivision (b) provides that reunification services need not be
provided a parent if: (10) the parent has failed to reunify with a sibling of the children
currently at issue; or (11) the parental rights over a sibling of the children currently at
issue have been permanently severed.
4.
In its new disposition report, the Department recommended that mother and father
receive reunification services. Mother stated she was willing to participate in
reunification services. The children remained with their maternal aunt. Mother and
father participated in visitation with the children, but the maternal aunt asked to be
relieved of the responsibility of supervising the visits because she had difficulty
communicating with father.
On September 24, 2012, the juvenile court ordered the Department to provide
reunification services to mother and father.
Six- and 12-Month Status Review
In it status review report in March of 2013, prepared in anticipation of the review
hearing, the Department recommended that mother continue to receive reunification
services, but that father’s services be terminated. Mother was participating in services
and reported to be making moderate progress. Father was reported to be resistant to the
service plan and had made only minimal progress.
Both mother and father participated in visitation, although mother was reported to
be less actively involved during the visits than father. The Department was considering
separate visits for each parent to ensure mother was able to more fully engage with the
children.
In an addendum report, the Department recommended services be terminated for
both mother and father. Mother had been unable to demonstrate to the Department’s
satisfaction that she could care for the children. She had refused to participate in a child
abuse batterer’s treatment program. Father made minimal progress on his case plan.
Section 366.22 18-Month/Permanency Review
In its review report of May of 2013, the Department again recommended
termination of reunification services for both mother and father. Although mother
continued to participate in parenting classes, she had not demonstrated changed behavior,
making only minimal progress in her ability to care for her children or in recognizing her
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need to protect her children. The Department believed mother needed some additional,
as yet undetermined, treatment in order to help her make progress toward reunification.
Therefore, the Department did not believe the children should be returned to mother.
Father’s work schedule interfered with his services and visitation.
On May 24, 2013, the juvenile court terminated reunification services for both
mother and father and set the matter for a permanency hearing.
Permanent Plan
In September of 2013, in its report in anticipation of the permanency hearing, the
Department recommended guardianship without dependency for the children, who
remained in placement with the maternal aunt. The children were healthy and
developmentally on target, and there was no concern that they might need mental health
treatment.
Mother continued to have consistent visitation with her children until the end of
July 2013, when the case was transferred to the permanency assessment unit. According
to the Department, the overall nature of mother’s visitation remained constant throughout
the reporting period - she was consistently “disengaged” during visits. The aunt
permitted mother and father to call the children during the week, in addition to their one
hour of in-person visitation each week.
The children continued to do well in placement with their aunt, who was able to
provide them with an appropriate home on a long-term basis, but was unable or unwilling
to adopt them “because of exceptional circumstances that do not include an unwillingness
to accept legal or financial responsibility for the children .…” The Department opined
that removal of the children from the maternal aunt’s home “would be detrimental to the
emotional well-being of the children ….”
On September 30, 2013, after a contested hearing, the juvenile court found there
was “clear and convincing evidence and a compelling reason that termination of parental
rights would be detrimental to these minors since the parents have maintained regular
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visits and contact with the children, and the children would benefit from continuing that
relationship.” The juvenile court also found that removing the children from the maternal
aunt, who was willing to provide them with a stable and permanent environment, would
be detrimental to their emotional well-being. As such, it found legal guardianship was
the appropriate plan for the children and that continued dependency was no longer
necessary. The juvenile court then terminated jurisdiction over the minors and issued
letters of guardianship in favor of the maternal aunt. Mother was given a minimum of
one visit per month with the children.
DISCUSSION
On appeal, mother contends only that the visitation order made at the time of the
permanency hearing is unnecessarily restrictive so as to amount to an abuse of discretion
on the part of the juvenile court. We disagree.
In its report in anticipation of the permanency hearing, the Department
recommended continued visitation between mother and the children and that visitation
“be reasonable, supervised by the Legal Guardian, minimum once a month for one hour,
upon contacting the Legal Guardian, visits to take place at the Legal Guardian’s home.”
At the hearing prior to the order, counsel for mother asked that the juvenile court
“consider giving [mother] her visitation once a week.” In response to the request,
counsel for the Department explained that its recommendation for once a month visits
was due to the fact that mother had been very inconsistent in her participation in
visitation, causing a problem for both the children and the guardian.
The juvenile court then explained that the recommendation, as it now stood, was
for discretion for visits, supervised by the guardian, a minimum of once per month,
“which means, essentially, if mother is requesting more and shows up, it would allow
additional visits per month depending on the minors’ availability.” Counsel for the
children agreed that it was best to keep discretion with the guardian. That way, if mother
became more consistent and the guardian thought it appropriate, visits could increase.
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The juvenile court then found the Department’s recommendation appropriate as it
guaranteed a minimum of at least one visit per month, but gave mother “the ability to
contact and make arrangements for additional visits. It just has to be convenient for the
children, does not interrupt any of their schooling and upon mother’s showing she’s
going to show up.” The juvenile court ordered that visits between mother and the
children “be reasonable and supervised by the legal guardian. The location of the visits
will be at the legal guardian’s home, which will be a minimum of one visit per month
upon the mother contacting the legal guardian to arrange or schedule those visits.” In the
order itself, the juvenile court struck language specifically limiting mother to one hour for
each of her visits.
We review a visitation order made in a dependency proceeding for abuse of
discretion and will not disturb the order unless an abuse of discretion is clearly shown.
(In re Stephanie M. (1994) 7 Cal. 4th 295, 318-319.) “‘“The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no authority
to substitute its decision for that of the trial court.”’” (Ibid., quoting Walker v. Superior
Court (1991) 53 Cal. 3d 257, 272.)
When the juvenile court selects guardianship as the permanent plan as it did here,
it “shall also make an order for visitation with the parents … unless the court finds by a
preponderance of the evidence that the visitation would be detrimental to the physical or
emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).) The juvenile court has
sole power to determine whether visitation will occur. (In re M.R. (2005) 132
Cal. App. 4th 269, 274; In re S.H. (2003) 111 Cal. App. 4th 310, 317; In re Julie M. (1999)
69 Cal. App. 4th 41, 48-49.)
Once visitation is ordered, the juvenile court may delegate discretion to manage
the details of the visits. (In re Chantal S. (1996) 13 Cal. 4th 196, 213.) For example, a
guardian may manage the details such as time, place and manner of visits, which does not
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affect a parent’s defined right to see his or her child. (In re T.H. (2010) 190 Cal. App. 4th
1119, 1123; In re Moriah T. (1994) 23 Cal. App. 4th 1367, 1374.) But the visitation order
must give some indication as to how often visitation should occur. (See In re
Christopher H. (1996) 50 Cal. App. 4th 1001, 1008-1009 [an order giving a parent
“reasonable” visits is sufficient]; In re Moriah T., supra, at pp. 1375-1376 [court
specified that visitation be “‘as frequent as possible, consistent with the well-being of the
minor’” (italics omitted)].)
Mother acknowledges that the visitation order in question “complied with the
general requirement that the parents of children in guardianships be provided with
visitation.” But, mother argues, because the juvenile court found that termination of
parental rights would be detrimental to the children since she and father maintained
regular visits and contact, “merely providing some visitation” was not enough. Mother
argues that the visitation order constitutes an abuse of discretion on the part of the
juvenile court because it “does not realistically address the need to maintain and build the
beneficial relationship the juvenile court recognized between mother and her children.”
As part of this argument, mother also contends that the juvenile court should not have
given the guardian the discretion of determining how long each of mother’s monthly
visitation periods would be.
We find no merit to mother’s argument. The juvenile court had ample reason to
limit mother’s visits to once a month at this point. As noted in the Department’s
permanency report, the children had a “very limited relationship” with mother, and when
they did have visits, there was “no affection or engagement with one another.” The
report, written in September of 2013, also stated that mother had not visited the children
since the end of July of 2013. At the permanency hearing, the Department explained that
mother had been very inconsistent in her visitation participation, causing a problem for
both the children and the guardian. Therefore, the visitation order, as written, is
appropriate. By crossing out the phrase “one hour” in its order, the juvenile court was
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allowing for visits longer than the hour time limit first recommended by the Department.
And, as emphasized by the juvenile court, if mother wished to have additional visits, she
had that ability by showing up for the scheduled visits and becoming more consistent and
then requesting additional visits.
We find no improper delegation or abuse of discretion on the part of the juvenile
court.
DISPOSITION
The order is affirmed.
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