In re K. M. CA2/8

Filed 11/13/15 In re K. M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re K.M. et al., Persons Coming Under B261011
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK95357)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke
Zeidler, Judge. Affirmed.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and
Respondent.
******
Mother A.V. appeals the juvenile court’s visitation order after the court
established a legal guardianship and terminated dependency jurisdiction over the
children, K.M. and G.M. The order requires that mother’s visitation be monitored by a
therapist or professional monitor at mother’s expense. We affirm.
FACTS AND PROCEDURE
K.M. and G.M. came to the attention of the Los Angeles County Department of
Children and Family Services (DCFS) in August 2012 when they were 14 years old and
nine years old, respectively. K.M. and mother were arguing and K.M. said he wanted to
kill himself. G.M. called mother a “bitch” and mother slapped her. Mother also kicked
G.M. when they were walking to the bank after the argument. G.M. jumped on the
balcony of the family’s apartment afterward and sat on the roof until mother calmed
down.
Officers arrived at the scene. Mother told one of the officers she did not “want to
live anymore.” A few days prior to this argument with the children, mother told them, “I
want to die sometimes but I’m afraid to.” The children were concerned mother would
harm herself. Mother had been referred to therapy but was not following through with it.
She felt her neighbors at the apartment complex did not like her, and they often taunted
her, laughed at her, chased her, and called her names. Mother appeared nervous and did
not recall doing some of the things G.M. reported. The officers took mother to the
hospital for a “5150 [e]valuation.”1
Maternal grandmother expressed concerns about mother’s mental health for the
last two years. She felt mother had become “paranoid” and isolated herself from the
family after she ended a relationship with a boyfriend. Maternal grandmother reported
1 Pursuant to Welfare and Institutions Code section 5150, subdivision (a), “[p]eace
officers, among others, have been entrusted with the duty, on probable cause, to take into
custody any person who, ‘as a result of mental disorder, is a danger to others, or to
himself or herself, or gravely disabled,’ and to place such a person in a county-designated
facility for the initial 72-hour treatment and evaluation.” (People v. Triplett (1983) 144
Cal.App.3d 283, 286-287.)
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that mother would often keep the children home from school because she was concerned
they were being mistreated there. She would also go to their school to check on them
because she believed they were being mistreated. Maternal grandmother was further
concerned by behavior she perceived as inappropriate based on the children’s age. For
instance, maternal grandmother had to stop mother from bathing K.M. herself even
though K.M. was 14 years old. Mother also held nine-year-old G.M. like a baby in
public on numerous occasions. The family had been discussing plans to intervene and
remove the children from mother’s care because they believed her behavior was
becoming unsafe.
DCFS filed a petition under Welfare and Institutions Code section 300,
subdivision (b),2 alleging mother suffered from mental and emotional problems that
rendered her incapable of providing regular care and supervision for the children. The
court detained the children with maternal grandmother and ordered weekly monitored
visits for mother. After the detention, DCFS filed an amended petition adding an
allegation that father Francisco M.3 had failed to provide the children with the necessities
of life.
The children disclosed other details relating to mother’s mental health in DCFS’s
jurisdiction/disposition report. For approximately two years, mother was “always” sad,
cried often, and had frequent migraines. She took medication that “would make her go to
sleep.” She would have panic attacks and call for an ambulance. She had been
unemployed for one and a half years. She went to school but quit after three months.
She told the children she was too stressed to find a job. The family would receive $400 a
month in food stamps, but they would run out of food stamps half way through the
month. They had gone to shelters six times. Maternal grandmother would give mother
2 Further undesignated statutory references are to the Welfare and Institutions Code.
3 Father, who apparently resides in Rosarito, Mexico, never responded to the social
worker’s and his attorney’s attempts to contact him. He is not a party to this appeal.
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money. The children felt mother was overprotective. She kept the children out of school
for approximately a year because they “needed to get a physical exam,” according to her.
Anytime someone talked to the children, mother wanted to know what was said. She
suspected a neighbor was following them one time when the neighbor happened to leave
the apartment building at the same time they left. Mother “was like that with everybody.
She always thought people wanted to do something bad to” the children. G.M. felt sad
and scared when mother told them she wanted to die. G.M. said things like this too, but
she “only mean[t] it a little bit.”
Mother disclosed to the social worker that her diagnosis was major depression
with psychotic features. She was taking Xanax for anxiety and acetaminophen for
migraines. She was taking Abilify, an antipsychotic, but she stopped because she felt it
was making her anxious and nervous.
Maternal grandmother reported that mother was anxious and calling several times
a day to speak to the children. She also came to maternal grandmother’s house daily to
bring them food. She had recently become very upset and fought with K.M. during one
of these trips because the children said they wanted to live with their uncle. Maternal
grandmother had to stop mother from hitting K.M. Mother threatened to take the
children from maternal grandmother.
Maternal aunt and uncle (mother’s brother and his wife) expressed concern over
mother’s depression and behavior since she had broken up with her boyfriend. They felt
she was paranoid and had isolated herself and the children. She would talk about a
government conspiracy against her. She once thought their whole street was under
quarantine and said they could not leave their home. Maternal grandmother and the
children had moved into maternal aunt and uncle’s home to escape mother’s constant
calls and visits.
G.M.’s therapist had been seeing G.M. for three months. Mother initially brought
her to get treatment. They were working on G.M.’s anxiety. G.M. reported that mother
hit her in the mouth and on the head. She would also wake up G.M. in the middle of the
night to ask whether G.M. was okay, which scared G.M. She told G.M. not to attend
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school because it was too stressful. The therapist confirmed that mother isolated the
children from family and did not send them to school. Mother wanted to be present for
all of G.M.’s sessions and seemed to be coaching her on what to say. The therapist
opined that mother was hypervigilant and was relying on G.M. for emotional support.
The therapist also assigned mother a case manager and was trying to link her with mental
health services, but mother refused them. G.M. was continuing with therapy, and DCFS
referred K.M. for therapy also.
The children had been having weekly four-hour visits with mother since their
detention. K.M. wanted to stop visiting with mother because he was upset at how she
“interrogate[d]” the children on their daily activities. When K.M. did not appear for a
visit at mother’s home that maternal grandmother was monitoring, mother became angry
and yelled at maternal grandmother, demanding that she arrange for K.M. to appear and
accusing her of “poisoning” K.M. against mother. Maternal grandmother explained that
K.M. refused to come and she could not force him. Mother asserted that she was leaving
with G.M. and taking her to a movie. Maternal grandmother would not allow this, and
mother then locked herself and G.M. in a room and refused to release G.M. Police
officers had to convince mother to open the locked door. DCFS notified the parties that
subsequent visits would take place at the DCFS office.
In October 2012, mother pleaded no contest and submitted a waiver of rights form.
The court sustained the amended petition alleging that she suffered from untreated
emotional problems that rendered her incapable of providing regular care and
supervision. The court declared the children dependents of the court under section 300,
subdivision (b) and ordered them removed from mother’s custody. It ordered
reunification services for mother and weekly visitation at the DCFS office, which
maternal grandmother could not monitor. Mother’s case plan consisted of parenting
classes, mental health counseling, and psychiatric treatment. DCFS approved maternal
aunt and uncle’s home for placement.
During the six-month review period, K.M. reported that mother made him “feel
bad” and accused him of not loving her because he chose not to visit with her. G.M. had
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been displaying signs of anxiety. Mother told the children that maternal aunt and uncle
wanted to take them from mother so that they could get government funds for the
children. In actuality, maternal aunt and uncle had signed a statement saying they were
willing to provide a home for the children without payment. Mother also told the
children to tell the social worker that they wanted to have unmonitored and extended
visits with mother or live with mother. When maternal uncle, who monitored visits, tried
to redirect mother from this type of conversation, mother would become verbally
aggressive and accuse him of “stealing her children.” She repeatedly engineered ways to
be alone with G.M. during visits, such as taking her into the women’s restroom at the
DCFS office. Both children said mother made them feel anxious, and they were afraid of
how she would react if they told her they did not want to live with her. The children and
their therapist reported that maternal aunt and uncle treated them well, they felt safe and
protected there, and they were happy to be living there. Neither child wanted to return to
mother’s custody because they did not feel she was getting “better.”
Mother had attended parenting classes and 10 therapy sessions, had been taking
her medication, and had been evaluated by a psychiatrist. But she continued to display
symptoms of nervousness and “problems in perceiving and interpreting other people and
events.” She repeatedly insisted to the social worker that maternal aunt and uncle were
mistreating and abusing the children, even though all reports from the children and their
therapist were to the contrary. Mother contacted the police and demanded that they arrest
maternal uncle. She also contacted maternal aunt’s mother by phone and threatened to
have maternal aunt arrested for “child stealing.” Mother visited the children’s school
repeatedly in an attempt to have unmonitored contact with the children.
At the contested six-month review hearing in May 2013, the court continued
mother’s reunification services for another six months. It also entered a permanent
restraining order prohibiting mother from coming near the children’s home and school or
contacting the children, except during monitored visits at the DCFS office.
During the 12-month review period, mother continued to be hypervigilant during
phone calls and visits with the children. Both were healthy and showed no signs of
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illness during the period. Still, mother routinely asked them a series of scripted questions
about their eating and sleeping habits and signs of illness. She encouraged them to seek
immediate medical attention for even minor aches and pains and demanded that maternal
aunt and uncle provide such attention. She also discouraged them from engaging in
extracurricular activities or performing well in school if it caused them stress or tiredness.
She opposed summer school and after-school tutoring. Maternal aunt and uncle reported
that G.M. became extremely fearful if she suspected she had a physical ailment to the
point that G.M. feared she would die.
At the 12-month review hearing in November 2013, the court ordered
reunification services to continue and gave DCFS discretion to walk the matter on
calendar to modify the restraining order to liberalize visits. It also ordered DCFS to
arrange for a psychological evaluation of mother. The court set the matter for a
permanency planning hearing.
During the last review period, mother was visiting the children inconsistently and
missing therapy appointments. Mother said this was because she did not have
transportation money, but DCFS was giving mother transportation funds of $85 per
month, which DCFS had also recently increased by $40 per month. Mother said she
needed more money. She refused to have the psychological evaluation the court ordered
and insisted that “DCFS caused her problems by taking her children for no reason.” She
blamed DCFS for causing her stress and depression. Both children expressed concern
that mother’s state had not improved and they did not think she could care for them.
They were worried the court would return them to mother’s custody, and they wanted to
stay with maternal aunt and uncle.
After mother missed a visit, she appeared that night at maternal aunt and uncle’s
home and asked to see the children. Maternal uncle did not allow her to see them
because such a visit would have violated the restraining order. Afterwards, mother stood
outside the house for approximately 30 minutes. Mother visited a hospital, saying she
had a headache and claiming she and the children were victims of a crime committed by
maternal aunt and uncle.
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In May 2014, the court terminated reunification services and found that returning
the children to mother’s physical custody would create a substantial risk of detriment to
their physical or emotional well being. It set the matter for a selection and
implementation hearing.
Before that hearing, the children’s counsel and DCFS filed petitions under section
388 to modify the visitation order.4 They wanted visits to be monitored in a therapeutic
setting per the recommendation of the children’s therapist. According to the therapist,
mother’s erratic behavior and interactions with the children during visits were impacting
them negatively. During one recent visit at the DCFS office, G.M. witnessed an
altercation between mother and maternal uncle when mother became angry because he
would not deliver food to the children that mother had brought. G.M. saw mother hit and
yell at maternal uncle. She cried throughout the car ride home from the visit and told her
therapist and maternal aunt and uncle that she no longer wanted to visit with mother.
K.M. was also refusing to visit with mother. He was not present for the altercation
between mother and maternal uncle, but he became upset when he learned about it.
Mother was also sharing information about her mental and physical health and living
situation that the therapist felt was causing the children additional anxiety. Mother
discussed her depressive symptoms, repeated visits to the hospital, and her unstable living
situation with the children. She told K.M. about conflicts she was having with paternal
grandmother, with whom mother lived, and having to sleep at the park because of these
conflicts. K.M. also reported that mother was discouraging him from doing well in
school. He said that he saw no point in doing well at school if mother did not care.
Further, mother had been arriving at the children’s home unannounced and
demanding to see the children. G.M.’s anxious symptoms and behaviors had increased
4 Section 388 permits a party to petition the juvenile court “to change, modify, or set
aside any order of court previously made or to terminate the jurisdiction of the court”
when a “change of circumstance or new evidence” justifies the modification. (§ 388,
subd. (a)(1).)
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recently, including loss of sleep, loss of appetite, negative intrusive thoughts, difficulty
focusing and concentrating, nightmares, and not following directions. K.M.’s behaviors
and feelings included an increase in sadness and disappointment, suicidal ideation,
hopelessness about the future, feelings of isolation, refusal to follow rules at home, low
motivation for family social outings, low motivation at school, and negative intrusive
thoughts after visits with mother. The therapist thought K.M. in particular was exhibiting
symptoms of posttraumatic stress disorder as a result of his relationship and contact with
mother.
The court granted the petitions of DCFS and the children’s counsel and ordered
that mother’s monitored visits take place in a therapeutic setting with a neutral therapist.
By the time DCFS prepared its report for the selection and implementation
hearing, the children had resided with maternal aunt and uncle for over two years. They
had not visited with mother in over three months. The children wanted to remain as
placed. They and their caretakers had formed a tightly knit and loving bond. Maternal
aunt and uncle wanted a legal guardianship established rather than an adoption.
At the selection and implementation hearing in November 2014, the court found
return to mother would be detrimental to the children’s physical or emotional well being,
the children were not adoptable, and a guardianship promoted their best interests. The
court appointed maternal aunt and uncle legal guardians of the children. The court also
modified the restraining order to permit mother weekly visits with the children monitored
by a therapist or professional monitor at mother’s expense. After establishing the
guardianship, the court terminated dependency jurisdiction. Mother filed a timely notice
of appeal.
DISCUSSION
When the court orders a permanent plan of legal guardianship for a dependent
child, section 366.26, subdivision (c)(4)(C) governs parent-child visitation. (In re S.H.
(2011) 197 Cal.App.4th 1542, 1558.) Specifically, it states: “The court shall also make
an order for visitation with the parents or guardians unless the court finds by a
preponderance of the evidence that the visitation would be detrimental to the physical or
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emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).) “‘[T]he power to
regulate visitation between minors determined to be dependent children [citation] and
their parents rests in the judiciary.’ [Citation.] As such, dependency law affords the
juvenile court great discretion in deciding issues relating to parent-child visitation, which
discretion we will not disturb on appeal unless the juvenile court has exceeded the bounds
of reason.” (In re S.H., supra, at pp. 1557-1558.)
Mother contends the court abused its discretion when it ordered that she pay for
professional monitoring of visits because she was indigent and the order effectively
denied her visits without the requisite finding of detriment. We disagree and find no
abuse of discretion.
The statute required the court to “make an order for visitation” or find that
visitation would be detrimental to the children. (§ 366.26, subd. (c)(4)(C).) The court
did the former, dictating how often visits could occur and the conditions under which
they could occur. The court’s order complied with the statute. The single case on which
mother relies, In re M.R. (2005) 132 Cal.App.4th 269, is inapposite. In re M.R. held that
delegating authority to the children’s legal guardians to arrange visitation “‘at their
discretion’” constituted an improper delegation of the judicial function and an abuse of
discretion. (Id. at pp. 272, 274.) The court could delegate discretion on the time, place,
and manner in which visitation would occur, but could not delegate its discretion to
determine whether any visitation at all would occur. (Id. at p. 274.) Here, the court did
not delegate any decisions and instead expressly set forth the frequency and other terms
of visitation. In re M.R. was concerned with the court’s abdication of its role. The court
in this case assumed its proper role when it dictated the conditions of visitation.
Mother argues that the court’s order “in essence delegate[ed] whether the visits
will occur to mother’s financial circumstances.” This attempt to cast the challenge as a
“delegation” issue fails to persuade us. The conditions of visitation are the issue. A court
has considerable discretion to impose conditions or “further define the right to visitation
in light of the particular circumstances of the case before it.” (In re Jennifer G. (1990)
221 Cal.App.3d 752, 757.) Moreover, when, as here, the court terminates reunification
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services and moves forward with a permanent plan, “the parents’ interest in the care,
custody and companionship of the child[ren] are no longer paramount.” (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.) The focus then shifts to the children’s need for
permanence and stability. (In re S.H., supra, 197 Cal.App.4th at p. 1559.) “Accordingly,
the court must turn its focus to the child’s best interests, rather than the parent’s, in
deciding issues that may arise.” (Ibid.)
Given these objectives, the court’s order for visitation monitored by a professional
monitor at mother’s expense was within the bounds of reason and adequately supported
by the record. Mother’s erratic and harmful conduct supported the court’s order for
monitoring by a therapist or professional. She demonstrated that a nonprofessional
monitor was not going to be equal to the task. With maternal grandmother or maternal
uncle acting as monitors, she acted inappropriately in a number of ways. She coached the
children on what to say to the social worker, engineered ways to get G.M. alone (going so
far as to lock the two of them in a room), became verbally aggressive with the relative
monitors, voiced accusations of “child stealing,” discouraged the children from doing
well in school, burdened the children with details of her mental health and precarious
living situation, and even hit maternal uncle. Her behavior was negatively impacting the
children’s mental and emotional health, according to their therapist. The order requiring
a professional monitor after termination of jurisdiction reflects a reasonable concern that
mother continued to pose a threat to the children’s well being. Thus, the court was
properly focused on the children’s best interests, which was the paramount concern at
that point, not mother’s interest in the companionship of her children.
Mother does not appear to dispute that a professional monitor was appropriate.
She suggests only that she should not bear the cost of the monitor because she was
indigent, and the court could not impose such a condition without making a detriment
finding. We cannot think that mother wants us to reverse and remand for the court to
make a detriment finding. The record contains ample evidence to support a conclusion
that “visitation would be detrimental to the physical or emotional well-being of the
child[ren]” (§ 366.26, subd. (c)(4)(C)) if the court was so inclined to find this, especially
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in light of the statements from the children’s therapist in connection with the section 388
petition filed just before the court established the guardianship. And if the court made
this finding, mother would be entitled to no visitation at all.
In re Chantal S. (1996) 13 Cal.4th 196 (Chantal S.) is instructive. In Chantal S.,
the court took jurisdiction based on findings that Chantal’s father was violent and her
mother had failed to protect Chantal. (Id. at p. 201.) The court terminated dependency
jurisdiction after Chantal’s mother complied with her service plan and entered an exit
order giving mother custody of Chantal and giving father visitation rights under certain
conditions. (Id. at p. 202.) Chantal’s father was serving a three-year prison sentence at
the time. (Id. at p. 201.) The conditions of visitation included that father had to attend
psychotherapy regularly and make satisfactory progress before visits could occur, visits
had to be monitored by Chantal’s therapist at father’s expense, and father had to permit
Chantal’s therapist to communicate with his therapist about his progress in therapy and
any issues Chantal’s therapist saw during visitation. (Id. at p. 202.) Chantal’s father
asserted an argument similar to what mother asserts here—that the court delegated too
much discretion to the therapists to determine whether visits could occur. (Id. at p. 213.)
The court held that even assuming arguendo the visitation order delegated too much
judicial discretion to the therapists, Chantal’s father was not prejudiced: “[F]ather does
not contest the position that on this record the juvenile court would have been within its
discretion if it simply denied him any visitation. The fact that the juvenile court rejected
that course, and instead issued the restrictive order challenged now, amounts to a windfall
to father, not a violation of his rights.” (Id. at p. 214.)
The same reasoning applies here. Mother has not shown prejudice. Assuming
mother’s delegation challenge made sense, mother does not contest that the court could
have made an amply supported detriment finding on this record. Thus, the fact that the
court rejected this course and gave mother an opportunity for visitation amounts to a
windfall for her, not a prejudicial error requiring reversal.
On a final note, mother’s contention raises the question of who should bear the
expense of a professional monitor if she does not. Mother does not provide an answer.
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The court has terminated dependency jurisdiction and DCFS will no longer be involved
in the case. As between the children’s legal guardians and mother, we cannot say the
court acted unreasonably by requiring mother to bear the expense. It was mother’s
conduct that necessitated professional monitoring. Moreover, although the record
contains indications of her indigence—her lack of employment and a permanent home,
for instance—it would be pure speculation for us to assume that she will never have
funds for a professional monitor. In any event, it is not mother’s right to visitation but
the children’s best interests that are paramount now, and mother has not shown the
court’s visitation order abused its discretion.
DISPOSITION
The order is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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