Opinion
F042740.
11-26-2003
In re JESSICA M. et al., Persons Coming Under the Juvenile Court Law. KINGS COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. BLANCA M., Defendant and Appellant.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant. Denis A. Eymil, County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent. Patricia M. Belter for minors.
OPINION
THE COURT
STATEMENT OF FACTS
On September 18, 2001, the Kings County Human Services Agency (Agency) filed a juvenile dependency petition on behalf of 11-year-old Jessica and two-year-old Edward. The Agency alleged appellant neglected her children by leaving them with her 19-year-old sister, who physically abused the minors. At the time the petition was filed, appellant was in prison for the attempted murder of Edwards father. She was not eligible for parole until September 2007. Edwards father had a criminal history dating to 1997 and Jessicas father could not be located. The juvenile court ordered the children detained and set the case over for a jurisdiction/disposition hearing.
The Agency prepared and filed a jurisdiction/disposition report and recommended that the juvenile court sustain the petition and that a permanent plan be ordered for the children. On October 31, 2001, appellant was transported to juvenile court for the jurisdiction/disposition hearing. She requested a contested hearing on the Agencys recommendations. The juvenile court ordered her returned to court on November 2, 2001, for the contested hearing. The Agency prepared a special order for the juvenile court to authorize a visit between the minors and appellant while she remained at the Kings County jail.
During the course of the jurisdictional hearing, appellant submitted on jurisdiction. The juvenile court ultimately sustained the allegations pertaining to appellant and continued the case for a due diligence on one of the alleged fathers.
On December 6, 2001, the juvenile court held a continued disposition hearing. Appellant did not proffer any testimony but argued that the juvenile court should find that reasonable efforts were not made and that minors should be placed with a maternal aunt in Florida. The juvenile court followed the Agencys recommendations regarding disposition, ordered permanency planning for the minors, and ordered the setting of a Welfare and Institutions Code section 366.26 hearing. The juvenile court further ordered the Agency to initiate a request with the State of Florida for placement with the maternal aunt under the Interstate Compact for the Placement of Children (ICPC) (Fam. Code, §§ 7900 et seq.).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On April 5, 2002, the court conducted further proceedings regarding a section 366.26 hearing. The Agency requested a continuance to obtain the presence of one of the fathers at a permanency planning hearing. The court granted the request for continuance and appellants counsel noted, "[T]he I.C.P.C. has been approved for placement with the relatives. The only issue is whether or not theres a fence around the pool, and we believe that that fence will be in place and the children can go live in Florida."
On April 29, 2002, the Agency filed an interim review report recommending the minors be in a permanent plan of legal guardianship with their relatives in West Palm Beach, Florida. The agency reported the relatives were appropriate for placement except for the fact their outdoor swimming pool was not fenced for Edwards safety. The relatives initially refused to comply with safety requirements but later decided "to do whatever is necessary to obtain placement of the children." The Agency reported the children were looking forward to living with their aunt and uncle in Florida.
On July 11, 2002, the court called the matter for a section 366.26 hearing but noted the Agency had not prepared and submitted a report in advance of the hearing. Counsel for the Agency observed, "[T]he recommendation for the 26 report is going to change and were sending it back to the assessment unit to reconsider the recommendation of something other than long term foster care and so were going to ask that it be set out for the full 120 days." The court granted the continuance.
On August 30, 2002, the court called the matter for a scheduled review hearing. A report filed by the Agency the previous day recommended placement of the minors in legal guardianship with the maternal aunt and uncle in West Palm Beach, Florida. The parties submitted the matter and the court ordered the children to remain dependents of the juvenile court, ordered visitation to be supervised as arranged by the social worker, and set a section 366.26 hearing for November 6.
On November 6, 2002, the Agency filed an additional report. The Agency received information on October 2, 2002, that the minors relatives had brought their swimming pool into compliance with safety regulations. However, the original ICPC placement approval had expired in the interim and the Agency social service worker submitted another ICPC request. At a hearing held the same day, the court continued the matter to February 5, 2003, ordered a new ICPC, and stated "upon approval of the home in Florida, the Agency has discretion, then, to transfer the children to Florida."
On January 23, 2003, the Agency filed a section 366.26 report in advance of the scheduled February 5 hearing. The report indicated both minors were healthy and on target developmentally. They had monthly supervised visits with their mother at Valley State Prison for Women in Chowchilla, the most recent taking place on January 9, 2003. The report noted minors had missed a number of visits due to illnesses and the fact that Jessica did not want to participate in visitation. Jessica told the social worker she disliked visiting her mother because the latter picked on her appearance, commented about her dress, and commented about her hairstyle. The report also noted that mother complained about Edward not wanting to sit with or speak with her voluntarily. According to the social worker, Jessica tried to persuade Edward to communicate or interact with mother during the visits. The report recommended a permanent plan of legal guardianship for minors with a maternal aunt and uncle in Florida serving as legal guardians. With respect to prospective visitation, the report noted, "Due to the distance between California and Florida, visitation between the children and their mother will occur through telephone and written correspondence."
On February 5, 2003, the court conducted a section 366.26 hearing and counsel for the Agency stated, "[Y]our Honor, in the meantime at least the oldest child is at this point not interested or willing to go to Florida. Shes comfortable where shes at." Counsel for the minors stated:
"I did speak with Jessica and I also had Edward in my office, but the children are very happy where they are. Apparently the caretaker now — whos had the children now for a while is willing to do guardianship now. [¶] I did have a few concerns about the children going to Florida when — I dont believe Edward has any recollection of these relatives. And I dont believe Jessica has seen them for at least three or four years. I was a little concerned about that and she very much wants to stay where she is and with the present guardian. She has some concerns about going with the aunt and uncle now that Im not going to voice right now. [¶] ... [¶] At any rate, I think a continuance is appropriate at this time with the children to remain where they are. And perhaps a visit with that family would be a little more appropriate before we send them all the way to Florida. If theres problems there, whos going to know about it[?]"
Counsel for the Agency ultimately suggested the court order long-term foster care for minors and review the case in six months to determine whether legal guardianship was appropriate. Appellant objected and the court continued the matter for a contested hearing on the issue.
With respect to appellants visitation rights, the following exchange occurred:
"MS. CAUBLE [deputy county counsel]: There is an issue with regard to Jessicas visits. The childrens visits with the mother. Apparently its very disturbing to Jessica to have to go visit her mother. She doesnt want to do it. She doesnt like to do it. Im not sure why the Court ordered visitation to continue to be required after reunification services were either not offered or were terminated.
"If the mother were out and could visit her on her own, certainly thats another matter, but at this point in time, I cant see the wisdom in forcing this child to go to the prison to visit her mother when the visits are clearly so disturbing to her and reunification services are not being offered to the mother. And I ask the Court to lift any prior orders requiring visits.
"If she is released from custody and still wants to visit with her child, we can revisit that issue, but at this point in time, Id ask the Court not to require the Agency to transport the child for visits to the mother in custody — children."
Counsel for the minors agreed with counsel for the Agency but mothers counsel interposed an objection, stating:
"... She still would like to have the visits continue. Its not in the report or anything Ive seen that Jessica is very upset by the visits. It does say shes occasionally picked on by the mother by the way shes dressed, as children often feel theyre being picked on by their parents. It doesnt say that it would be very disturbing or would not be beneficial."
The court ruled:
"And as to Blanca M[.], Im going to set aside the order ordering once-a-month visits at Valley State Prison. [¶] I think its traumatic for the kids to get this in there. If you get out of custody, then I would suggest you contact the Agency and you can have supervised visitation as arranged by the Agency."
The reporters transcript of the February 5, 2003, hearing indicates that visitation was terminated as to both minors. However, the minute order of the proceeding indicates visitation was terminated as to Jessica only.
On February 20, 2003, the court conducted a contested permanency planning hearing. Clarissa Picazo, the Agency social service worker assigned to the case of minors, testified the minors were currently placed together in a licensed foster home in Corcoran. Jessica was a sixth-grader but Edward was not of school age. Picazo said she prepared the section 366.26 report that was filed with the court on January 23, 2003. In that report, Picazo recommended placement of the minors in legal guardianship with relatives in Florida. Picazo subsequently changed her recommendation and urged that minors be placed in long-term foster care. Picazo said she changed her recommendation because the Agency was unable to place the children in Florida. She explained the placement was not currently possible "due to a pending ICPC request." Picazo acknowledged that Florida authorities had approved an earlier ICPC request in April 2002. However, the children were not placed at that time because the Florida relatives had an unfenced swimming pool. Picazo explained that such a condition did not meet California standards. Since that time, the Florida relatives installed an appropriate fence around the pool.
Upon questioning by the court, Picazo admitted her section 366.26 report indicated the fence had been installed around the house. However, she meant to say the fence had been installed around the swimming pool.
Picazo further testified the Agency sent a new ICPC request to Florida in October 2002, and was awaiting approval of that request. Picazo said Jessica wanted to remain in her current placement. The Agency nevertheless made plans for both minors to visit Florida after Jessica completed her current school year. Picazo said the twinfold purpose of the trip would be "a visit . . . as well [as] for Jessica and Edward to become familiar with their relatives since they havent seen them in some time." Picazo noted the Agency would be willing to recommend a placement in legal guardianship with those Florida relatives if the minors were comfortable with the relatives after a visit and if Florida approved the ICPC. Upon cross-examination, Picazo testified she would have recommended legal guardianship with the minors Florida relatives had the ICPC been in place on day of the section 366.26 hearing. With respect to separating the minors, Picazo said the Agency would make an assessment to determine the propriety of such an action. She noted Edward was "very attached to Jessica" and that the Agency would consider Jessicas placement preference because she is over age 10. Upon further cross-examination, Picazo acknowledged that Jessica has been more of a mother to Edward than a sister. Picazo also said the minors current caretaker had informed her they would be willing to "do guardianship on these children."
Appellant testified she wanted minors to go to Florida and be with the prospective legal guardians. She explained the prospective guardians "are my relatives and they want my children with them." Appellant said the Florida relatives last saw the minors in 2000. On cross-examination, appellant said the minors wishes were important, she wanted them to do well, and she wanted them to be with her family in Florida. When asked whether minors uncle in Florida objected to a placement there, appellant explained:
"Its not that he objected to it. Its just that he knows sometimes Jessica does not behave well. [¶]...[¶] [W]hen she would go visit, she would say bad words in front of the lady that would take her and the social worker. And she would get upset if I told her about how to dress and stuff like that."
When asked whether she and Jessica got along, appellant said Jessica gets bothered when appellant displays a picture showing Jessica to be dirty. Appellant said she would ask Jessica why she would not take care of herself, why her caregiver could not buy her clothes, and why Jessica did not speak to the social worker about it. Jessica told appellant she declined to do so because she did not want to cause any problems. Appellant also said Jessica was dirty when she would visit her in prison. She said Jessicas hair was not combed, her face and shoes were dirty, and she had writing on her hands. On her most recent visit, Jessicas eyebrows were shaved.
After hearing the arguments of counsel, the following exchange occurred:
"All right. Ive read the social workers attachment, recommendation and other evidence presented for the hearing today and considered it for the Court, together with the evidence before the Court to arrive at my judgment and order disposition. And the case plan incorporated in the report prepared today for the hearing will be incorporated and it has been read and considered herein, 2/20, Ill put in.
"Notice has been given as required by law. The Kings County Human Services Agency has complied with case plan in making reasonable efforts to comply with the permanent plan to return Jessica [M.] and Edward [H.] in a safe home and completed whatever steps are necessary to finalize permanent placement for Jessica [M.] and Edward [H.].
"The service provided to Jessica [M.] and Edward [H.] are adequate to meet their needs. And the Court finds that the long-term foster care is now in the best interest of the children. [¶] And I think the orders have to all be changed.
"MS. CAUBLE: Yes, your Honor. I think the Court must order a permanency plan of long-term foster care. The children will remain under the care, custody and control of the Agency. The Agency needs to file a new case plan that is in compliance with the plan of long-term foster care and provide services to the children.
"THE COURT: The Court will so order. And the Agency will prepare an order after hearing.
"MS. CAUBLE: Yes and a new case plan.
"THE COURT: And the Court will also order the children shall remain dependents of the Court. [¶] ... [¶] At this time what Im going to do, Im going to set the next hearing on August the 6th at ... 1:30 ... in this department ... for the permanency planning review. [¶] The Court orders all parties present in court [to be] present at the next hearing. All orders not in conflict with my orders of long-term foster care shall remain in full force and effect.... [¶] ... [¶] The Court shall consider an application for ... a visit with the relatives in Florida at the time of school vacation."
DISCUSSION
I.
Appellant contends the juvenile court erroneously terminated visitation because there was insufficient evidence that visitation was detrimental.
Case law has established that in dependency proceedings, absent certain circumstances, visitation must be provided to the incarcerated parent. (In re Dylan T. (1998) 65 Cal.App.4th 765, 770.) The absence of visitation will not only prejudice a parents interests at a section 366.26 hearing but may virtually assure the erosion and termination of any meaningful relationship between parent and child. (In re Monica C. (1995) 31 Cal.App.4th 296, 307.) Although incarcerated parents suffer obvious obstacles to visitation, the law is clear that reasonable services—most particularly visitation—must be provided. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1478.) Absent a showing of detriment caused by visitation, it is ordinarily improper to suspend or halt visits even after the end of the reunification period. (In re Luke L. (1996) 44 Cal.App.4th 670, 679.) A juvenile court may not improperly delegate decisions over visitation to a childs therapist. Similarly, visitation may not be dictated solely by the child involved, although the childs desire may be a dominant factor. The ultimate supervision and control over visitation must remain with the court, not social workers and therapists, and certainly not with the children. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138-1139.)
The Legislature intends that the juvenile court should apply the preponderance of the evidence standard to adjudicate whether visitation would be detrimental to the child under section 366.21, subdivision (h) (status review hearings) and section 366.22, subdivision (a) (permanency review hearings). (In re Manolito L. (2001) 90 Cal.App.4th 753, 761-762.) The preponderance of the evidence standard also applies to visitation orders in connection with permanency planning hearings. (§ 366.26, subd. (c)(4).) With respect to visitation orders, the appropriate standard on appeal is abuse of discretion. The reviewing court must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts in a light most favorable to the juvenile courts ruling. The precise test is whether any rational trier of fact could conclude the trial court order advanced the best interest of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether it is the ground relied upon by the trial judge. The trial court is accorded wide discretion and its determination will not be disturbed on appeal absent a manifest showing of abuse. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The appropriate test for abuse 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. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.)
In the instant case, we cannot accurately determine whether an abuse of discretion occurred simply because of a lack of evidence, conflicting or otherwise, on the element of detriment to the children. Although the juvenile court suggested that it is "traumatic for the kids to get this [visitation] in there [state prison]," the parties have not cited and we have been unable to find any record evidence to support such trauma. Counsel suggested Jessicas lack of cleanliness and questionable attire were sources of friction between her and her mother, the appellant. Counsel also suggested that Edward evidenced shyness during his visits with appellant. However, we cannot be certain the juvenile court was relying on these meager facts when it concluded the prison visits were "traumatic" for the minors.
The primary purpose underlying dependency proceedings is the protection of the child. (In re Robert L., supra, 21 Cal.App.4th at p. 1068.) At the same time, a parent has a liberty interest in the care, custody, and companionship of his or her children. (In re Julie M. (1999) 69 Cal.App.4th 41, 50.) Moreover, parents and children have recognized constitutional interests in visitation. (In re Emmanuel R., supra, 94 Cal.App.4th at p. 462.) Given the fundamental nature of these rights and the lack of evidence in the instant record, the visitation portions of the orders appealed from should be reversed and the matter remanded to the juvenile court for an evidentiary hearing to determine whether or not visitation with appellant in state prison "would be detrimental to the physical or emotional well-being" (§ 366.26, subd. (c)(4)) of the children. Such a determination shall be made by a preponderance of the evidence. (Ibid.)
II.
Appellant contends the Agency should have exercised greater diligence in obtaining the ICPC evaluation of placement with her relatives in Florida.
The ICPC is an agreement among California and other states that governs sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption. (Fam. Code, § 7901, art. 3, subd. (b).) The purpose of the ICPC is to facilitate cooperation between participating states in the placement and monitoring of dependent children. "Placement" generally means the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution. (Id., § 7901, art. 2, subd. (d).) No sending agency shall send a child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement of section 7901, article 3, and with the applicable laws of the receiving state governing placement of children therein. (Id. , § 7901, art. 3, subd. (a).) Before any child can be sent or brought into a receiving state for placement in foster care or as a preliminary to possible adoption, the sending agency must give written notice to appropriate authorities in the receiving state. (Id., § 7901, art. 3, subd. (b).) Authorities in the receiving state must confirm the proposed placement does not appear to be contrary to the interests of the child. (Id., § 7901, art. 3, subd. (d).) (In re Emmanuel R., supra, 94 Cal.App.4th at p. 458.)
In the instant case, appellant attributes the delay in the handling of the ICPC to the Kings County, California authorities rather than those in Florida. However, this stands contrary to the remarks made by the juvenile court and appellants counsel during argument at the section 366.26 hearing on February 20, 2003:
"THE COURT: I should note for the record that the ICPC was re-initiated in October of `02. This is now February `03 and we havent received a response back. So it seems to me that someone on the other end of ICPC is not getting everything done. It would seem to me it goes through like duck soup. I dont know we can control it any better than we have, for the record.
"MR. FJELLBO [appellants counsel]: As far as Im aware, the Human Services Agency and Child Protective Services has not been exactly bugging Florida a great deal to get their end done. But with that, well rest."
Moreover, the California Legislature has declared:
"The health and safety of California children placed by a county social services agency or probation department out of state pursuant to the provisions of the Interstate Compact on the Placement of Children are a matter of statewide concern." (Fam. Code, § 7911, subd. (a).)
Given the statewide approach to the ICPC, appellants attempt to lay blame with the Human Services Agency of Kings County is misplaced at best. Moreover, the law never requires impossibilities. (Civ. Code, § 3531.) In the instant case, appellant is attempting to shift full and total responsibility for compliance with ICPC requirements from her relatives and the authorities of the State of Florida to the Agency. Both the juvenile court and appellants counsel frankly admitted that any delay in processing in this case was attributable to the prospective guardians and to the receiving agency under the ICPC. An appellate court will not ordinarily consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted where an objection could have been but was not presented to the trial court by some appropriate method. Any other rule would permit a party to deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)
As respondent points out, "[N]o one challenged the Agencys assertion that the prior ICPC had lapsed due to the [Florida] relatives failure to bring their pool within regulations for placement in a timely fashion." Therefore, appellants contention must be deemed waived on appeal. (In re Dakota S., supra, 85 Cal.App.4th at p. 501.)
We further note the juvenile courts order of long-term foster care at the section 366.26 hearing did not forever preclude minors from being placed with relatives in Florida. California Rules of Court, rule 1466(b) states in relevant part:
"Following the establishment of a plan for long-term foster care ... review hearings shall be conducted every six months by the court or by a local review board.... If circumstances have changed since the permanent plan was ordered, the court may order a new permanent plan under section 366.26 at any subsequent hearing, or any party may seek a new permanent plan by a motion filed under rule 1432...."
If a party believes that circumstances have changed since the juvenile court ordered long-term foster care as the permanent plan, he or she may submit a petition to the juvenile court for modification to adoption or legal guardianship as a new permanent plan on the ground of change of circumstances. (San Diego County Dept. of Social Services v. Superior Court
(1996) 13 Cal.4th 882, 888.)
DISPOSITION
The visitation portions of the orders appealed from are reversed and the matter is remanded to the juvenile court for an evidentiary hearing to determine whether or not visitation with appellant in state prison "would be detrimental to the physical or emotional well-being" of the children. The orders are affirmed in all other respects.