Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Nos. DP017854, DP017855, DP017856 Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Lawrence A. Aufill, under appointment by the Court of Appeal, for Petitioner.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Parties in Interest.
Law Office of Harold LaFlamme and Yana N. Kennedy, for Minors.
OPINION
BEDSWORTH, J.
INTRODUCTION
In this dependency case, Jonathan M. seeks writ relief from an order reducing his visitation with his children from once per week to once per month, made at the same time the court terminated the reunification efforts between his wife and the children and set the matter for a Welfare and Institutions Code section 366.26 selection and implementation hearing. Jonathan argues the court abused its discretion in reducing the amount of visitation, because the children enjoyed their visits with him, and the decision to terminate mother’s reunification services in no way related to the frequency of his visitation. He suggests the court’s reduction of visitation in anticipation of the selection and implementation hearing harmed his ability to prove he enjoyed the sort of beneficial relationship with his children that might justify an exception to the presumption favoring adoption as the permanent plan for these children.
All further statutory references are to the Welfare and Institutions Code.
We conclude Jonathan is correct, and the trial court abused its discretion. There is no evidence Jonathan’s visitation schedule was presenting a problem for the children, and no suggestion of any changed circumstances that would have militated in favor of a reduction in that visitation. As far as we can discern, the only change was that mother’s reunification period ended. That change did not, in and of itself, have any effect on Jonathan’s visitation.
Moreover, an order reducing visitation, made in conjunction with the order setting a selection and implementation hearing is particularly problematic, because establishing the existence of a beneficial relationship between parent and child which outweighs the perceived benefits of adoption, is one of the few arguments available to stave off termination of parental rights when a dependency case gets to the permanency stage. And reducing visitation, especially by 75 percent, clearly undermines a parent’s ability to make such an argument.
We consequently conclude the court abused its discretion by reducing Jonathan’s visitation, for no apparent reason other than anticipation of the selection and implementation hearing. We reject Jonathan’s suggestion the decision may have been “punitive” in nature. It appears instead to be an attempt at expediency and a reflection of the tendency to lump the parents together in dependency cases. But in either case, it was erroneous, and we consequently grant Jonathan’s petition for writ relief.
In light of the tight timeframe between the filing of Jonathan’s writ petition (June 18, 2010) and the court’s scheduled selection and implementation hearing (September 1, 2010), we note there is, as a practical matter, little relief we can offer in the absence of an order staying the section 366.26 hearing, which Jonathan has requested. We consequently grant that stay for a period of three months, i.e., until December 1, 2010, and remand the case to the juvenile court with directions to reinstate Jonathan’s prior weekly visitation schedule during that period, and to reschedule the selection and implementation hearing for a date after December 1, 2010.
FACTS
The children involved in this case are Jonathan, Jr., (age five), Anabel (age three), and Nathan (age 22 months.) They were detained in November of 2008, after both parents were taken into custody on various charges relating to a series of robberies and gang crimes.
In a highly disturbing turn of events, SSA filed an amended petition adding a count under section 300, subdivision (d), alleging that since Jonathan, as an adult, had sexual relations with the children’s mother when she was a minor, he had “sexual[ly] abuse[d]” her, and, as a consequence, the children were “at risk of sexual abuse by [him.]” To be clear, Jonathan is less than two years older than the children’s mother, and thus if he was an adult when they were having sex, she was at least 16 years old. We fail to see the connection between that conduct and an increased likelihood he would sexually abuse his children who, at that point, were all under the age of five. The purported risk seems especially unlikely when we consider the fact that at that point, SSA was reporting Jonathan would be incarcerated “longer than 50 years.” Indeed, that anticipated length of incarceration was the sole basis of the recommendation in SSA’s report that he be denied reunification services.
What the record shows is that the children’s mother reported to the social worker she had started dating Jonathan when she was 12 years old (he would have been no more than 14 years old); she had their first child, Jonathan Jr., when they were both minors; and they began cohabitating when she was 15 years old (and he no more than 17 years old.) Mother explicitly denied any concern that the children were at risk of sexual abuse by Jonathan, and noted she had worked with a social worker during the time she was pregnant with Jonathan, Jr. Her suggestion that SSA was well-aware of the facts underlying its claim of “sexual abuse” at the time of the events in question is supported by SSA’s own records, which reflect that both Jonathan and the children’s mother were fairly extensively “involved with” SSA as minors. Moreover, SSA explicitly acknowledges it had received a report back in March of 2004 that the mother “was staying with her boyfriend, ” and in May of 2004, it was aware she was “pregnant as a result of voluntary sexual relations with her boyfriend....” Jonathan, Jr., was born five months later. Apparently, it did not occur to SSA to suggest Jonathan might be guilty of “sexual abuse” at that time.
Less than two weeks later, both the children’s mother and Jonathan submitted to jurisdiction on an amended petition which included only a “failure to protect” allegation under section 300, subdivision (b), and a “no provision for support” allegation under section 300, subdivision (g). In connection with that agreement to submit, SSA simply dropped the explosive “sexual abuse” allegation.
Ultimately, mother was offered reunification services, but they were denied to Jonathan. Moreover, from the inception of the case, and throughout the 18-month period during which reunification services were provided to mother, SSA consistently recommended that Jonathan receive only monthly visitation with the children. However, the court granted Jonathan’s request for weekly visitation quite early in the case, and continued to order that level of frequency throughout the 18-month reunification period.
Welfare and Institutions Code section 361.5, subdivision (e)(1) provides in pertinent part: “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration or institutionalization within the reunification time limitations described in subdivision (a), and any other appropriate factors.”
SSA’s written report filed in connection with the 18-month hearing said nothing at all negative about Jonathan’s visitation. To the contrary, it reflected only that “[t]he children report that they like to see their daddy, ” and that “Jonathan [Jr] explained... he talks to his dad on the phone.” Moreover, the report did not technically include any “recommendation” concerning the frequency of Jonathan’s visitation. Instead, it focused exclusively on its recommendation that reunification services be terminated for mother, and the matter be scheduled for a selection and implementation hearing. The report did incorporate a case plan, which reflected a monthly visitation schedule for Jonathan, but without proving any explanation as to why that might be more appropriate than his then-current weekly schedule.
At the hearing, Jonathan’s attorney objected to monthly visitation schedule included in the case plan, noting that “father has been receiving weekly visitation with those children. They have been appropriate. There have been no concerns. I believe there’s no detriment [caused by] the visits of the children and father. So I’d be asking for those visits to remain one time a week.” In response to that objection, the children’s attorney pointed out that “as to father’s visitation, this is the wind-down period, and these children are very young. They are little. I am requesting that the court adopt the recommendation. I think when the court considers the facts as a whole, the ages of the children, their need for permanency, that the recommendation as set forth by the agency is more appropriate.” SSA offered no argument on the point.
As part of its ruling at the conclusion of the hearing, the court ordered that Jonathan be given only monthly visitation. In doing so, the court indicated a concern that “if [father were] moved to a state prison, ... [he] might end up in some location far away in Northern California, [then] I’d have a concern about being able to transport the children in a car maybe eight hours each way. [¶] So what I’m going to do is order your visitation one time per month while father’s in custody in Orange County jail. Thereafter, I’ll be happy to make any appropriate orders depending upon where father may be placed if he his located somewhere else. And we’ll just make that determination at that time.”
I
Before we address the visitation issue, a comment is in order. As we noted above, SSA filed an amended petition in this case, alleging that Jonathan posed a significant risk of sexual abuse to his small children, based upon the bare allegation he had engaged in sexual intercourse with their mother at a point when she was no younger than 16 years old, and he was not quite two years older. Moreover, SSA made this allegation at a time when Jonathan was in jail, and it was otherwise on record as stating there was a substantial likelihood he would remain incarcerated for as long as 50 years.
This kind of pleading undermines confidence in the system. It damages the reputation of the Social Services Agency and causes parents to suspect the system is prejudiced against them, and social workers will use any excuse they can think of – whether credible or not – to deprive them of the custody of their children.
It has to stop. No one in government has a more important job than the employees of the Social Services Agency; no one has a more critical task than the protection of our children. It is essential to our society that this charge be carried out with compassion and fairness. Alleging that a father is a danger to his pre-school children because he had sex with their mother when they were teenagers is not calculated to improve the credibility of the people who daily shoulder this burden.
As reflected in the facts underlying the other counts alleged against the parents in this case, SSA had perfectly legitimate reasons for requesting that the court take jurisdiction over these children. If SSA was concerned that those legitimate reasons might not be deemed persuasive enough by the court, its response should not have been to throw in an additional “sexual abuse” count – which might be interpreted as an attempt to frighten the parents into submitting to jurisdiction on the other counts. Instead, it should have invested more consideration into the reasons it had.
With great power comes great responsibility. SSA has great power. The facts of this case and others brought to us in recent months (see, e. g., Fogarty-Hardwick v. County of Orange (G039045, June 14, 2010) [nonpub. opn.], and In re Tyler H. (G043216, Aug. 26, 2010) [nonpub. opn.]) suggest the agency has somehow temporarily detoured from its long tradition of exercising that power wisely and responsibly. We look forward to its return to that tradition.
II
Turning to the visitation issue, we start with the proposition that the court has continuing authority to make orders for parental visitation as long as the court retains jurisdiction over the case. (See, e.g., section 366.26, subd. (c)(4)(C).) Implicit in that authority is “the authority to modify the terms of visitation if the conditions warrant it.” (In re Megan B. (1991) 235 Cal.App.3d 942, 952, recognized as superseded by statute on other grounds in In re Steven H. (1992) 6 Cal.App.4th. 1752) We review such modifications on an abuse of discretion standard. (Ibid.)
In In re Steven H., the court determined that a challenge to the juvenile court’s order modifying visitation, where that order is made contemporaneously with an order terminating reunification services and referring the case to a selection and implementation hearing, must be brought by writ petition, rather than appeal. (Accord, Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149.) Jonathan did so in this case.
In this case, we have no choice but to conclude the court abused its discretion. The court had previously ordered weekly visitation and the only evidence pertaining to Jonathan’s visitation at the 18-month hearing was that the children enjoyed it. There was no evidence from which the court could even infer that weekly visits were proving problematic or disruptive in their lives. No party so much as suggested that. Instead, the only argument made against continuing Jonathan’s visitation on a weekly basis was that the children had a need for “permanency” and the case had entered its “wind-down phase.” Well, the case may have entered its wind-down phase – or it may not have. There’s no way to know that without prejudging the outcome of the selection and implementation hearing – i.e., whether the court would order termination of parental rights. Because if the court did ultimately decide, at the selection and implementation hearing, that termination of parental rights was not the appropriate course, this case could live on for several more years, with an order of guardianship or long term foster care for these children.
Counsel also mentioned the fact that “these children are very young” as an additional basis for limiting visitation with Jonathan. But these children were certainly not getting any younger than they had been when the court had ordered weekly visitations with Jonathan. So presumably, their relative youth was not going to be any more a problem going forward than it had been.
And that is the real problem. It is the very purpose of the selection and implementation hearing – which the court had ordered would take place in the future when it terminated reunification services – to ascertain whether the case is “winding-down” to an order terminating parental rights, or whether it will proceed on to some other permanent plan. The court could not, therefore, approach that hearing on the assumption it already knew what the outcome would be. Consequently, the assertion this case is “in the wind-down phase” is the very worst basis for limiting visitation in the period before the selection and implementation hearing. The perniciousness of such an argument is particularly obvious when we consider that one of the few arguments a parent can make to avoid termination of parental rights – which is otherwise the outcome favored by statute in the case of children deemed “adoptable” – is the assertion that he or she enjoys such a significant bond with a child that the harm of severing that relationship would outweigh the benefits of freeing the child for adoption into a new family. (Section 366.26, subd. (c)(1)(B)(1).) A parent’s ability to demonstrate such a bond can only be undermined by a severe reduction in his or her contact with the child during the months preceding the selection and implementation hearing.
Section 366.26, subdivision (c)(1)(B)(1), provides for an exception to termination of parental rights when doing so would be detrimental to the child because “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
To be clear, we are expressing no opinion on the likelihood Jonathan would be able to prove the existence of such a bond in this case, and no opinion on the broader issue of whether these children are likely to be freed for adoption. Those issues are not before us, just as they were not before the juvenile court at the hearing in which it terminated mother’s reunification services. It is for that very reason that the court should not have considered the potential “wind-down” of this case as a basis for reducing Jonathan’s visitation. To the extent its decision was based upon such a consideration, it was premature.
Because the court itself gave no explanation for its decision to reduce Jonathan’s visitation – and the only comment it made on the issue related explicitly to what might happen in the future, i.e., when Jonathan is transferred to state prison – SSA has attempted to defend the decision by speculating as to what justifications the court might have relied upon in light of the record in this case. We find none of them persuasive.
SSA first suggests the court might have decided to reduce Jonathan’s visitation because the children had recently been moved to a new placement, because Jonathan, Jr., “did not react well to change, ” and because some of his stress issues “might result from overhearing adults discussing his care or placement or other things.” But only one of these factors is arguably related to Jonathan’s visitation schedule, and it would seem to militate against changing it. There is nothing to suggest that the children’s new placement made visitation with Jonathan more difficult, or that the new caretakers had registered any objection; there is no evidence that Jonathan, Jr., was hearing adults “discussing his care or placement or other things, ” during visits with Jonathan; and of course, if Jonathan, Jr., is resistant to change, then a change in visitation with his father would be likely to make things worse, not better.
SSA also argues there is evidence the children suffered “‘fallout’” from visits which it concedes “appear to be with Mother, ” but nonetheless relies upon that “‘fallout’” to suggest (without actually explaining why) the court might have concluded that reducing visitation with Jonathan would be “in their best interests.” Of course, such an inference seems particularly unreasonable when we consider the fact that the “fallout” from the children’s visits with mother did not cause the court to reduce visitation for her.
Finally, SSA suggests that the fact its reports reflect the children expressed a desire to “live with and visit” their mother, while only expressing enjoyment of their visits with Jonathan, would allow the court to infer they didn’t really want to visit Jonathan. As SSA expresses it, “[t]he juvenile court could have viewed the evidence to support a conclusion that enjoying visits was not the same as wishing to have the visits.” (Italics added.) We disagree. This kind of legalistic, post-hoc parsing is unbecoming a government agency that deals with children on a regular basis. When it comes to small children, enjoying it and wanting it are the same thing.
Nor do we think the fact SSA’s reports reflect the children’s desire to “live” with their mother, while only expressing their enjoyment of visiting Jonathan, is significant. The stated goal of the dependency proceeding, until the 18-month hearing, was for the children to be reunified with their mother and resume living with her. Presumably the children’s view of that goal would be considered of some significance to the social worker. But as there was never any similar goal vis-à-vis Jonathan, and since the expectation was that he would remain incarcerated for many years, there was no reason to assess, let alone document, the children’s desire to resume living with him.
Because we find none of the evidence cited by SSA sufficient to support the court’s order reducing Jonathan’s visitation, and we can otherwise discern no reasonable basis for the court’s decision to do so in the period leading up to the selection and implementation hearing, we conclude the court abused its discretion in making that order.
We acknowledge, however, that the court’s concern about Jonathan’s potential transfer to a distant prison, and the practical effect such a move would have on the ability to facilitate visitation, is a valid one. If and when that happens, any visitation order then in effect would have to be reconsidered.
Unfortunately, we can do nothing to restore Jonathan’s visitation retroactively. All we can do is attempt to mitigate whatever harm was caused by directing what should happen from this point. Consequently, we grant the petition for writ of mandate. We reverse the visitation order and direct the court to reinstate Jonathan's previous visitation of one time per week, effective immediately and continuing for a three month period ending December 1, 2010. The permanency hearing is stayed until December 1, 2010. The juvenile court is directed to hold the selection and implementation hearing after that date. Petition for writ of mandate is granted.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.