Opinion
B300141
07-14-2020
In re J.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ARIEL D., Defendant and Appellant.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. CK66584B-C) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Commissioner. Affirmed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel for Plaintiff and Respondent.
____________________
Appellant Ariel D. (mother) appeals from the visitation order as to J.G. and A.G (children) made under Welfare and Institutions Code section 366.26, subdivision (c)(4)(C) at the hearing establishing a guardianship and terminating the dependency court's jurisdiction. Mother contends the court abused its discretion when it ordered mother's visitation restricted to twice a week, two hours per visit, and ordered mother to pay the cost of a professional monitor. We find no abuse of discretion and affirm the visitation order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Between 2007 and 2009, mother was involved in a prior dependency proceeding involving her child A.D. (a minor not involved in the current proceedings), in which the court sustained allegations that included domestic violence and mother's alcohol abuse. Mother failed to reunify with A.D., who was then adopted by an extended family member.
In January 2017, when the children were two years old and eight months old, the Department of Children and Family Services (Department) detained the children from mother and J.G., Sr. (father), based on a number of factors, including mother's mental health, mother's history of substance abuse, father's failure to protect the children, and a history of domestic violence between mother and father. In April 2017, the juvenile court placed the children with father, but they remained removed from mother's custody. Mother was to receive enhancement services, including a full alcohol and drug program, drug testing, a 12-step program, a psychiatric evaluation, and counseling to address case issues. Mother was awarded monitored visitation with the children twice a week, two hours per visit, on the condition that parents could not be together or under the influence of controlled substances during visits.
Father is not a party to this appeal.
In May 2017, the children were removed from parental custody and placed with paternal grandmother after another domestic violence incident and revelations about father's drug use. In August 2017, both parents entered a no contest plea to the allegations of an amended petition, based on the parents' domestic violence and drug use. Mother had recently tested positive for amphetamines and methamphetamines. The court ordered mother's reunification services and monitored visitation to remain substantially similar to what the court had previously ordered as enhancement services in April 2017.
As amended, the section 342 petition contained the following counts:
a-1: "On 05/9/17, [father and mother] engaged in a violent altercation in the children's presence. The father grabbed the mother by the mother's hair and pulled the mother out of the house. The father pushed the mother on the floor and grabbed the Mother's neck. The father struck the mother's head with the father's fist. The mother repeatedly struck the father's head with the mother's fists. The mother sustained marks to the mother's chest and collarbone. The father sustained knots and bruises to the father's forehead. The father allowed the mother to have contact with the children in violation of Court Orders for the mother's visits to [be] monitored by a [Department] approved monitor. Such violent conduct by the father and mother, and the father's failure to comply with Juvenile Court orders, endangers the children's physical health and safety and places the children at risk of serious physical harm, damage and danger."
b-1: "[Father] is a recent user of methamphetamine, which affects the father's ability to provide regular care and supervision of the children. Father's substance abuse places the children at substantial risk of harm."
b-2: "On May 9, 2017 [father and mother] engaged in an altercation in the children's home. Both parents sustained injuries and marks. The father allowed mother to have contact with the children which violated the court's orders for her to have monitored visits with a [Department] approved monitor. Such conduct on [the] part of the parents places the children at substantial risk of harm."
b-3: "[Mother] had a positive toxicology for methamphetamines and amphetamine on 6/27/17. Such drug use interferes with mother's ability to provide adequate care of the children. Mother's substance use places the children at substantial risk of harm."
Mother continued her monitored visits. The children enjoyed the visits, which reportedly went well. Mother was partially compliant with her case services.
On October 20, 2017, mother and father were physically violent towards each other, and mother's injuries were severe enough that she went to the hospital emergency room. Mother had bruised ribs and chest pain several days later. A police report taken four days after the incident stated that the couple had rented a motel room for the night and had engaged in domestic violence following an argument. Mother minimized the incident, stating she did not want a report taken and that she did not want to press charges. She refused to be photographed by the investigating officer, and she declined an emergency protective order. During subsequent conversations with the social worker, father denied that the October incident occurred, and mother stated she did not believe a restraining order was necessary. In the Department's six-month review report, submitted in February 2018, the social worker noted that mother and father continued communicating with each other, and the Department was concerned that there may have been other domestic violence incidents or verbal arguments that the Department remained unaware of.
On February 28, 2018, the court continued the six-month review hearing for a contest by mother, who was seeking "liberalization and return." The court gave the Department discretion to liberalize mother's visits.
In a supplemental six-month review report filed in May 2018, the Department reported that mother was a "No Show" for seven out of fifteen drug and alcohol tests, and was still only partially compliant with her case plan. Mother was consistent and proactive about her monitored visits, which lasted three hours, once a week. On April 27, 2018, mother ended a visit early because she was upset, believing that paternal aunt's family was at the public location where her visits took place. The social worker did not see paternal aunt or anyone else at the location. The social worker offered to change the location of the visit, but instead mother ended the visit early. The social worker also tried to calm mother and to positively reinforce mother's continued efforts with her visits. The woman that mother was upset about eventually left without engaging with mother or the children. However, the social worker expressed concern "regarding the mother's actions as she took out her cell phone and stared at the woman, and a concern as to what could have potentially led to an altercation between the mother and the other woman if the other woman decided to engage the mother in return." The Department was also concerned that the parents continued to be in contact with each other, with a high level of contention. Father accused mother of hitting him in the face in mid-April. Mother claimed father sent her numerous messages, but then vacillated about whether to apply for a restraining order against father. The Department recommended a domestic violence program for both parents.
At the contested six-month review hearing on May 17, 2018, the court found both parents in partial compliance with their case plans and continued services for another six months. It gave the Department discretion to liberalize the parents' visits, and to assess any proposed monitors or locations for the visits. It required both parents to complete a 26-week domestic violence program and psychological evaluations. The court also issued a temporary restraining order protecting mother from father. There is no evidence in the record that mother sought or obtained a permanent restraining order against father when the temporary order expired on June 4, 2018.
In its 12-month status review report (filed October 2018), the Department reported that both parents were visiting the children regularly, and by the end of August, the children started having weekend overnight visits with mother every other weekend. Mother was living with her foster grandmother, D.S., who was monitoring mother's weekend visits. At night, the children remained with D.S., and mother would stay at a motel or online short-term rental such as airbnb. However, during a visit the weekend of October 6, 2018, both parents were arrested after a domestic violence incident in mother's motel room. Mother had picked father up after work, and they went to a motel together, where an argument between them escalated and police were called.
According to the 12-month report, the children were continuing to do well in paternal grandmother's home. Both parents had made partial progress on their case plans. Mother had failed to appear for close to half of her drug tests and had not completed a psychological evaluation. After a CFT (child family team meeting) on October 22, 2018, overnight visits were to continue on alternating weekends, but mother would stay at one of D.S.'s friends' homes. Mother's weekly monitored visits at a public location were to continue.
In November 2018, the court continued the 12-month review hearing. Again giving the Department discretion to liberalize visits, the court ordered the Department to set a holiday visitation schedule and to file copies of its service logs.
After a holiday overnight visit at D.S.'s home from December 25, 2018, through January 4, 2019, the Department liberalized mother's visits to unmonitored. It emphasized that mother's unmonitored visits were only to take place at D.S.'s house in Lancaster. The Department remained concerned with the children's safety, in light of the parents' history of engaging in domestic violence, with the most recent incident occurring while the children were at D.S.'s house. Both parents had been arrested, and D.S. had to make arrangements for the care of her elderly mother in law and transport the children back the following morning. The Department recommended terminating parents' reunification services, as the case had remained open for over 23 months and the parents were not yet in full compliance with court orders. It recommended a legal guardianship by paternal grandmother and paternal aunt, A.G.
According to a last minute report on March 13, 2019, the Department restricted mother's visits to monitored, after mother had one dilute drug test at the end of January, and missed four different testing dates in February and early March. Mother was upset, but was able to calm down once she realized that her overnight visits could continue as long as they were monitored. The social worker reported that both parents were accusing each other of different infractions. Father accused mother of being intoxicated while the children were visiting her at D.S.'s home, and mother accused father of using fake urine for his drug tests. D.S. acknowledged that mother came home drunk once in the past month. Mother had been participating in group and individual sessions of domestic violence counseling, and could continue in individual sessions until she met the 26-week requirement imposed by the court. The Department continued to recommend terminating reunification services.
The 12-month review hearing took place over four days, starting in January 2019 and ending on March 26, 2019. Mother offered into evidence two letters from her domestic violence counselor, one of which stated that mother had contacted her former sponsor and admitted that she had alcohol in February 2019. After considering the evidence and argument, the court terminated reunification services for both parents, and scheduled a selection and implementation hearing under section 366.26.
The Department's July 2019 permanency planning report stated that paternal grandmother and paternal aunt had continued caring for the children and were committed to legal guardianship. They were also committed to ensuring that the children maintained a connection to both biological parents. Paternal grandmother was in agreement with weekly visits, but paternal aunt stated she wanted the parents to visit once a month, as the children were more unruly and disobedient after returning from a visit with mother. Both preferred visits to occur on weekends, so as not to interfere with the children's schooling. According to paternal grandmother, mother had consistently visited the children on Thursdays for two and a half hours. Mother also had weekend overnight visits monitored by D.S. The report did not contain details about the frequency or consistency of weekend visits.
At the section 366.26 hearing on July 24, 2019, the court allowed mother's counsel time to file a section 388 petition, which mother had initially attempted to file in pro per. The section 388 petition filed by mother's counsel alternatively sought return of the children, unmonitored visits with reunification, or unmonitored visits if the court terminated jurisdiction. The hearing resumed on July 26, 2019. The court denied mother's section 388 petition, finding she had not established a prima facie case of changed circumstances. Mother objected to the Department and minor's counsel's proposal of terminating jurisdiction with guardianship and two hours of monitored visits per month, emphasizing mother's progress and her bond with the children. She asked the court to order more visitation and, if the court was inclined to stay with monitored visits, to remove the requirement for a professional monitor and give the guardian discretion to liberalize. Minor's counsel objected, arguing that unmonitored visits were not in the children's best interests, in part because they could jeopardize the guardians' willingness to continue providing care. If father's visits improved, minor's counsel would bring a section 388 motion to have the monitored visit requirement lifted. The Department objected to any unmonitored visits, based on the parents' continued problems with domestic violence and only relatively recent sobriety. The Department reminded the court that most recently, father accused mother of being drunk, and both D.S. and mother's domestic violence counselor had confirmed mother had alcohol recently.
Referring to proposed visitation language, mother's counsel pointed out that it did not indicate that the time awarded for visitation was just a minimum. The Department responded that it had always assumed the orders were a minimum, but it would agree to the court's suggested language expressly giving the guardians discretion to permit additional visitation. Mother continued to request more visitation, expressing concern that the guardians would not exercise their discretion. The court responded by offering to increase visits from once a month to twice a month, and no party objected.
The final visitation orders (with interlineated changes underlined) stated that parents "shall have professionally monitored visits, 2 hrs. on 1st and 3rd Sat. of @ month at 9:00 a.m., confirmed 24 hrs in adv., & parent must be appropriate, not scare the minors or be under the influence. Monitor to be paid for by the parent(s) attending the visit. Monitor to pick up and return minors, parent not to be present at that time. Additional visitation is permitted at discretion of legal guardian." With a permanent plan of legal guardianship, the court terminated dependency jurisdiction over the children. Mother filed a notice of appeal on August 13, 2019.
DISCUSSION
Mother contends the juvenile court's visitation order was an abuse of discretion. She argues that there was no basis to restrict her visitation to less time than she had before the order, that requiring her to pay for a professional monitor posed an unreasonable obstacle to visits, and that the visitation order was ambiguous because it conflicted with the letters of guardianship. The Department contends that based on mother's history, the court's visitation orders were well within its discretion. We agree with the Department that the court's visitation orders were not an abuse of discretion.
"We review an order setting visitation terms for abuse of discretion. [Citations.] We will not disturb the order unless the trial court made an arbitrary, capricious, or patently absurd determination." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) "At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for the dependent child." (In re Noah G. (2016) 247 Cal.App.4th 1292, 1299 (Noah G.).) If the permanent plan is legal guardianship, "[t]he court 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 court's visitation order should specify the frequency and duration of visits, and the court is "required to make a visitation order unless it found that visitation was not in the children's best interest." (In re M.R. (2005) 132 Cal.App.4th 269, 274.) The court is only required to make a detriment finding if it denies visitation entirely, not if visitation is reduced. (In re S.H. (2011) 197 Cal.App.4th 1542, 1558 [affirming order reducing mother's visits from once a month to every six months].) While the court may not give the legal guardians discretion to stop visits that have been ordered, it may give them discretion over the time, place and manner of the visits. (See, e.g., In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 ["[t]he time, place, and manner of visitation may be left to the legal guardian, but leaving the frequency and duration of visits within the legal guardian's discretion allows the guardian to decide whether visitation actually will occur"]; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [improper to delegate to a minor's therapist the decision of whether visitation will take place at all].)
If a relative of the child is appointed the legal guardian of the child and the child has been placed with the relative for at least six months, the court shall, except upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship. (§ 366.3, subd. (a).)
Here, the juvenile court did not abuse its discretion when it ordered mother's minimum visitation with the children to take place twice a week, two hours per visit. The Department had previously permitted mother to have weekend, overnight visits, but it was not arbitrary for the court to conclude that such extensive visitation was no longer warranted, in light of mother's mixed compliance with her case plan. Mother's overnight visits had been taking place for less than a year. During that time, both parents were arrested for domestic violence, and the Department continued to express concern about ongoing contact between mother and father, even though both had been ordered to complete a 26-week class on domestic violence.
In addition, although the Department briefly liberalized mother's overnight visits to unmonitored in January 2019, the visits quickly returned to monitored after mother failed to appear for drug testing in February 2019. Even though mother was in a 12-step and Alcoholics Anonymous program, mother's foster grandmother and her domestic violence counselor separately acknowledged mother had consumed alcohol in February 2019.
Given mother's history of repeating the same behaviors—domestic violence and substance use—that formed the basis for the court's initial order requiring monitored visits, we cannot say the court abused its discretion when it determined that, moving forward, it would be in the children's best interests for mother's visits to remain monitored and restricted to twice a month.
Mother argues that the requirement of a professional monitor poses an undue burden, and that there was no indication that D.S. was not an appropriate monitor or that she was unwilling to continue monitoring visits. The record does not contain any information about what qualifications a professional monitor must possess. Had mother requested the court's approval for D.S. to serve as monitor, we might have a more robust discussion of her qualifications to serve in that capacity moving forward. On the record before us, however, we find no abuse of discretion. The court's focus when fashioning visitation orders is the best interests of the children, not whether a parent will be able to find an affordable monitor.
Finally, mother argues that the visitation order is ambiguous, because the guardianship declaration—a separate document—appears to grant the guardians discretion to limit mother's visits. Mother is wrong. The declaration is an acknowledgement that the guardians understand and accept the obligations of guardianship over the children. As part of that declaration, the guardians agree to "[m]ake all decisions concerning parental visits with each minor including promoting or limiting such visitation according to the best interest of the minor in question or as ordered by the court." Here, because the court has made an order governing visitation and given the guardians discretion to permit additional visitation, there is no ambiguity. The guardians are not permitted to restrict mother's visitation to less than that ordered by the court. If mother believes that greater visitation is warranted and the guardians disagree, mother may file a section 388 petition. (In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1359 [if court has terminated jurisdiction under section 366.26, a parent may seek additional visitation by a section 388 petition].)
DISPOSITION
The July 26, 2019 visitation orders are affirmed.
MOOR, J. We concur:
RUBIN, P. J.
KIM, J.