Opinion
B297465
02-06-2020
In re T.P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TIFFANY P., Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK38987, CK 38987H, CK38987I) APPEAL from an order of the Superior Court of Los Angeles County, Jean M. Nelson, Judge. Affirmed. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Mother Tiffany P. (mother) challenges a juvenile court's order regarding visitation with two of her children following imposition of legal guardianship under Welfare and Institutions Code section 366.26, subdivision (c)(4)(C). Mother contends the juvenile court erred by reducing her visitation without first finding that the existing visitation schedule was detrimental to the children. We hold that no such finding was required, and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
This case was initiated in 2012 and has a very long record involving multiple children. Because the issue on appeal focuses on mother's visitation with Te. and Ta., we focus on facts relevant to that issue and those children.
A. Detention and jurisdiction
Te., born in January 2009, and Ta., born in February 2010, as well as three of their siblings, then ages 14, 6, and 5, came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in April 2012. The reporting party said that if the children soil their clothing, "the mother becomes very angry and the children don't show up to school for days." Mother denied the allegations. Mother admitted that she had a criminal history, past DCFS history, and issues with domestic violence with the children's father, Michael B. (father). Father was not living in the home at the time, and mother said did not know where he was.
Father told DCFS he was father to Ty., M., and Ta., and he "recognized [Te.] as his own child even though he is not the biological father." Mother reported that Te. was conceived as the result of a rape, and his biological father was unknown.
On May 1, 2012, DCFS received another referral regarding Tr., age 14, alleging physical abuse by mother. The reporting party said Tr. was "afraid to go home because the mother threatened to beat him" after one of the younger children got a cut on his hand while Tr. was watching the children. Tr. told the reporting party that mother had trained all of the children to lie to social workers, and "if they do not lie, she will beat them." "On one occasion, the mother beat one of the children to the point that they sustained a laceration to their head, and the mother super glued the laceration instead of seeking medical attention." Mother again denied the allegations.
A woman unrelated to the family brought Tr. to a DCFS office on May 3, 2012. Tr. reported that he had not been home for three days, he had not had anything to eat but some cookies, and he did not have any clothing to wear. Tr. refused to go home due to the abuse. He reported that the children get "slapped in the face with objects such as belt buckles." Tr. said he had been hit with wooden and metal objects, and he had a mark on his leg that appeared to be the outline of a belt buckle.
Tr. reported that M., age five, was required to stand in the corner daily for two to three weeks, and he "could only move to eat and go to the bathroom and if he moved he would get slapped." The day before M. turned five, mother had been slapping him in the face, causing his nose to bleed. Mother took M. to the sink to clean his nose, then threw him to the floor, causing his head to "bust[ ] open." Mother panicked and searched the internet about what to do, and told Tr. to hold M.'s head closed in an attempt to stop the bleeding. Mother went to the store, and when she came back she put super glue on M.'s head to close the skin. Mother instructed the children to lie about what happened to M., and made them practice telling the story to ensure they got it right. Tr. said that mother would not send the children to school when they have marks from her beating them.
On May 4, 2012, DCFS detained the children. Six-year-old Ty. confirmed many of Tr.'s allegations. Five-year-old M. reluctantly told the CSW that his head was injured after mother dropped him on the floor; M. "went on to report that he was being punished because his mother was mad at him for not saying Good Morning to her the right way."
Mother had four additional children, then ages 18, 17, 10, and 7, who were not in mother's custody. The detention report noted that mother had an "extensive prior DCFS history." Referrals for abuse and neglect dated back to 1998. In 1999, mother was convicted of felony infliction of injury on a child. (Pen. Code, § 273) Reunification services for her "three older children," apparently including Tr., had been terminated, with legal guardianship established with the children's maternal grandmother. Another child, born in 2001, had been adopted in 2006 after mother's parental rights were terminated. Mother's rights regarding another child were terminated in 2004, and that child reunified with his father. In 2010, DCFS found a substantial risk of emotional abuse and general neglect as to Ty., M., Te., and Ta. due to domestic violence between mother and father. The detention report stated that the children were placed in protective custody, but "Court terminated on 12/16/11." No further explanation is provided in the initial report, but a later jurisdiction/detention report stated that mother and father were reunited with the children and the case was closed.
The actual CLETS report is not included in the record. The detention report also notes "273A (A) PC-Child cruelty: poss injury/death" in 2002, but does not specify if this was a charge or a conviction.
DCFS filed a juvenile dependency petition on May 8, 2012, alleging 10 counts under section 300, subdivisions (a), (b), and (j). The counts alleged that mother physically abused the children, and that father knew of the abuse and failed to protect the children. At a hearing on May 9, 2012, the juvenile court ordered the children detained in shelter care. The court ordered monitored visitation for four hours per week for mother and father, and ordered family reunification services.
A jurisdiction/disposition report dated June 6, 2012 stated that Ty., M., Ta., and Te. were placed together in a foster home. Ty. and M. confirmed the allegations of abuse, which included mother hitting all of the children with her hands and a belt, mother dropping M. on the floor and then gluing closed the resulting head injury, mother digging her fingernails into Ty.'s ear and making him bleed, mother hitting Ty. with a pole from a broken toddler gate, and M. being made to stand in a corner for multiple days. Ty. "stated that they would stay home [from school] if there were marks on them, [and] stated, 'that's obvious.'" Ty. and M. had many absences from school. Mother denied the allegations and called Tr. a liar, stating, "That kid is a monster! He is a damn monster! He is like a seed from the devil! Put that in your fucking report!" Mother was having four-hour monitored visits once per week with the four younger children, and the foster mother noted that mother was appropriate in her interactions with the children.
Tr. had been in a foster home and a group home; his placements are not relevant to the issues on appeal.
On June 26, 2012, the parties entered into a mediation agreement that provided for the dependency petition to be amended and sustained on one count under section 300, subdivision (b). The same day, the court reiterated that mother was to have monitored visitation with the children for four hours per week. B. Reunification, post-reunification, and guardianship
The court also sustained a count under section 300, subdivision (g) as to Tr. only.
Mother progressed to unmonitored visitation in September 2012. Following reports that mother was using physical punishment on the children in December 2012, the court ordered that mother's visitation be monitored. In January 2013, the court ordered that mother's unmonitored visitation be reinstated. In October 2013, again following concerns of physical abuse, the court ordered that mother's visitation be monitored. On February 21, 2014, the court ordered that mother have unmonitored visitation, and terminated family reunification services for mother and father.
Meanwhile, Te. and Ta. were placed with a new foster family in May 2013. An interim review report dated April 23, 2013 stated that Te. and Ta. both had behavioral problems, and Ta. had severe temper tantrums that put him at risk of injuring himself. A status review report dated August 27, 2013 stated that Ta. had as many as eight tantrums or "'meltdowns'" in a day, during which he would bite or kick his caregivers, or attempt to hurt himself by banging his head on the wall or throwing himself down on a tile floor.
After DCFS discovered that mother had been arrested for felony driving under the influence in November 2013, DCFS requested in March 2014 that mother's visitation be monitored. On March 13, 2014, the court ordered that mother's visitation be monitored, two times a week for two hours per visit. Mother's visitation with the children has been monitored for the remainder of the case.
An addendum report dated May 8, 2014 stated that Te. and Ta.'s foster parents were interested in committing to a permanent plan for the children. A status review report dated August 22, 2014 stated that Ta. had recently been diagnosed with autism spectrum disorder, and was receiving regional center services. Te. and Ta. continued to have behavioral issues.
A December 18, 2014 section 366.26 report stated that Te. and Ta.'s foster mother was a longtime friend of the children's maternal grandmother; she and her husband initially took in the children as a favor. However, the children had become part of their family, and they wanted to provide them a permanent home. Paternal grandmother, who lived in Illinois, was interested in adopting mother's four youngest children, Ty., M., Te., and Ta. Thus, Te. and Ta's foster mother thought legal guardianship, rather than adoption, would be an appropriate permanent plan, so the paternal grandmother could adopt Te. and Ta. after Ty. and M. were securely placed with her.
Mother continued having monitored visits with the children once per week. As of February 2015, father had started attending visits with mother. A supplemental report dated January 8, 2016 stated that mother and father continued to have monitored visitation with the children once per week, for two hours per visit. A status review report dated October 11, 2016, stated that mother and father continued to consistently visit the children once per week.
Meanwhile, Te. and Ta.'s behavioral problems continued. A status review report dated February 19, 2015 stated that Te. "displays physical aggression, cries excessively, disregards directives, and screams excessively when things don't go his way." Ta. displayed similar behaviors. The foster mother also "expressed concerns regarding [Te. and Ta.'s] behaviors before and after having visits with both parents."
On October 11, 2016, the court granted guardianship for Te. and Ta.'s foster parents, pending receipt of the guardianship papers. The court retained jurisdiction over Te. and Ta. The minute order in the record on appeal does not include a specific visitation order. Another minute order states that the guardianship letters were signed and filed on December 1, 2016. The actual guardianship documents are not included in the record on appeal. C. Post-guardianship, 2017 to 2019
A status review report dated April 4, 2017 stated that Ta., now age seven, continued having behavioral issues, including becoming "increasingly defiant and aggressive. When trantrumming minor kicks, hits, and screams for multiple hours." He had thrown items and broken a door in the home. While driving to an emergency psychiatric appointment, Ta. "took off his seat belt and was shaking the [guardian's] seat as she was driving."
According to reports in April and September 2017, mother and father continued to visit together once weekly for two hours each visit. Te. and Ta. had been having monthly sibling visits with Ty. and M. starting in October 2016. Through early 2018, mother continued to have weekly visits with Te. and Ta.; the report noted that mother's "housing is currently unstable so the visits take place at various locations." Father was no longer visiting because he was incarcerated for assaulting mother.
A status review report dated March 20, 2018 stated, "In December 2017, DCFS received the Legal Guardianship papers and reviewed the orders. Parents were ordered visits 2 times a month." Visitation was changed to comply with the guardianship order, so "visits take place on the 1st and 3rd Thursdays of each month from 3-5 pm." As noted above, the guardianship order itself, entered in December 2016, does not appear to be in the record on appeal. The record does not reveal why it took over a year for mother's visitation to comply with the guardianship orders.
A last-minute information filed April 26, 2018 stated that Te. and Ta.'s visitation with mother had become erratic. The children's guardian reported that the children "would benefit from [a] therapeutic setting and controlled visitation schedule. Each week, visitation location is determined by the mother with very little time to accommodate driving time, pick up[,] and dressing appropriately for the weather." The guardian also noted that "some visits are better than others, and that [Te.] and [Ta.] often act out resulting in tantrums that have resulted in [Ta.] throwing his dresser drawers across the bedroom."
A status review report dated September 18, 2018 stated that Te. was having severe tantrums relating to his schoolwork. Ta. also had some behavioral issues, but they were not as severe. Mother's twice-per-month visitation was generally consistent, but mother complained that her visits were too short. Meanwhile, Ty. had informed the CSW that he no longer wished to visit with mother, and parental rights had been terminated as to M. on July 17, 2018.
D. Order for change of visitation
A status review report filed March 8, 2019 stated that Te. and Ta.'s "behaviors continue[d] to escalate[ ]." Te., age 10, was lying and stealing from classmates. Te. told a CSW in January 2019 that he no longer wanted to see mother, because "I just don't think she's a nice person." The status review report noted that the behavior of Ta., age nine, "continues to spiral. Legal Guardian and CSW have increased concerns regarding minor's inability to practice safe behaviors while sitting in the car. Legal guardian will not transport [Ta.] without a second adult in the car on many occasions. . . . When [Ta.] is excited to reach his destination, he will attempt to open the door while the car is in motion in an attempt to jump out of the car. When upset or agitated [Ta.] will refuse to put his seatbelt on upon entering the vehicle or take the seatbelt off. [Ta.] will scream without warning startling the driver, [Ta.] kicks the front seats, leans forward and bangs his head on the seat in front of him. Transporting minor has become a huge safety concern to and from visits. As a result, CSW has attempted to obtain a second Department employee to travel with minor." The CSW also proposed moving visits to the weekend, but mother did not agree.
Te. and Ta. continued visitation with mother twice per month "per the availability of a monitor and transportation assistance." Citing transportation issues and the boys' increasing extracurricular activities, DCFS proposed a new visitation schedule of one visit per month for one hour with mother, one visit per month for one hour with father, and one sibling visit per month for two hours.
At the permanency planning review hearing on March 19, 2019, the court retained jurisdiction over Te. and Ta., because the guardians objected to termination of jurisdiction. Mother objected to "the department's recommendation that visitation goes down to once per month." Mother's counsel argued that "[t]here is no safety risk articulated," and mother was willing to comply with whatever DCFS asked of her. The children's counsel agreed with DCFS's recommendation, and noted that transportation of Ta. was a safety issue. The children's counsel also noted that the children get emotional regarding the visits, Te. said he does not want to visit mother anymore, and "[m]y clients have been through more than enough with this case, and I don't think they need to be subjected to it anymore." DCFS submitted on the recommendation and joined the arguments of the children's counsel.
The court ordered that "mother's visits occur one time a month, one hour at a time." Mother timely appealed.
DISCUSSION
Mother asserts that the trial court erred in reducing her visitation "without evidence that continuing the visitation as originally set was detrimental to the boys." Mother states that "[a]s part of the order for legal guardianship Mother was entitled to visitation absent a showing visitation was detrimental to the physical or emotional well-being of the boys." DCFS asserts that mother's desire for additional visitation does not demonstrate that the trial court's ruling was erroneous.
Mother states in her reply brief that the juvenile court erred because mother's visitation "was reduced from eight hours a month, then to four hours a month, and then to two hours a month [sic], with no showing that the amount of visitation that was originally ordered was detrimental to the boys and needed to be changed." The record indicates that mother appealed only the March 19, 2019 visitation order. As such we consider that order only, not any previous orders. --------
Section 366.26, subdivision (c)(4)(A) states, "If the court finds that adoption of the child or termination of parental rights is not in the best interest of the child . . . the court shall order that the present caretakers or other appropriate persons shall become legal guardians of the child." When the court makes such an order, "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 emotional well-being of the child." (§ 366.26, subd. (c)(4)(C).) Thus, a court ordering legal guardianship for a child is required to order visitation with the child's parents, unless the court finds that visitation is not in the child's best interest. (In re M.R. (2005) 132 Cal.App.4th 269, 274 (M.R.).) We review a juvenile court's post-disposition visitation order for abuse of discretion. (Ibid.)
Mother relies on section 366.26, subdivision (c)(4)(C) on appeal, asserting that the juvenile court erred by reducing mother's visitation "because there was no evidence that continuing visitation as originally set in the order for legal guardianship was detrimental to the children." However, mother misconstrues the standard. Section 366.26, subdivision (c)(4)(C) does not say that a court must make a finding regarding detriment to a child whenever it makes a visitation order in the context of legal guardianship. Under the language of the statute, a court is required to make a detriment finding only if it denies parental visitation. That is not what occurred here, because the court granted mother visitation. Moreover, mother cites no authority regarding adjusting visitation after legal guardianship has already been established, and we have found nothing suggesting that a different standard applies. Thus, section 366.26, subdivision (c)(4)(C) does not support mother's assertion that the juvenile court abused its discretion in reducing mother's visitation without a finding of detriment.
Mother also cites several cases that discuss the role of visitation as a vital part of a reunification plan. (See, e.g., In re Julie M. (1999) 69 Cal.App.4th 41; In re Luke L. (1996) 44 Cal.App.4th 670, 679; In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406-1407.) Here, however, reunification ended in 2014, five years before the court order at issue. The role of visitation as part of the reunification process is not relevant to the issues on appeal.
Mother further relies on M.R., supra, 132 Cal.App.4th 269, and In re Ethan J. (2015) 236 Cal.App.4th 654 (Ethan J.), cases in which the Court of Appeal found that the juvenile court erred by failing to require any visitation in the context of legal guardianship. In M.R., the juvenile court ordered, "'Visitation between the child and parents shall be supervised and arranged by the legal guardians at their discretion.'" (M.R., supra, 132 Cal.App.4th at p. 272.) The Court of Appeal held that under section 366.26, subdivision (c)(4)(C), the juvenile court was required to make an order allowing the parents visitation, unless it found that visitation would be detrimental to the child. (Id. at p. 274.) The Court of Appeal held that the juvenile court's order was erroneous: "Because the trial court was required to make a visitation order unless it found that visitation was not in the children's best interest, it could not delegate authority to the legal guardian to decide whether visitation would occur." (Ibid.)
The Court of Appeal reversed a similar order in Ethan J., supra, 236 Cal.App.4th 654. There, the juvenile court terminated mother's reunification services after 12 months, ordered guardianship as the permanent plan for child Ethan, and "ordered one unforced and unsupervised visit a month" for Ethan and his mother, Monica. (Ethan J., 236 Cal.App.4th at p. 657.) However, Ethan did not want to see Monica, so the visitation schedule was not followed. (Id. at pp. 658.) Ethan refused to be assessed for therapeutic visitation, and testified that he did not want to see Monica. (Id. at p. 659.) The juvenile court eventually terminated jurisdiction, finding that continuing dependency jurisdiction would only "exacerbate the anger." (Ibid.)
The Court of Appeal reversed the termination order, and held that the juvenile court erred in allowing Ethan to dictate whether visitation occurred. The court stated, "When the court abdicates its discretion and permits a third party, including the dependent child, to determine whether any visitation will occur, the court impermissibly delegates its authority over visitation and abuses its discretion." (Ethan J., supra, 236 Cal.App.4th at p. 661.) The court noted that "Ethan had successfully refused visitation for approximately six months. Thus, by its [termination] order, the juvenile court virtually guaranteed that visitation would not occur." (Ibid.) The court continued, "We conclude that absent a finding of detriment Ethan's refusal to visit Monica constituted an exceptional circumstance under section 366.3, subdivision (a) and warranted ongoing dependency jurisdiction." (Id. at p. 662.)
The situation here is not similar to those in M.R. or Ethan J., because the court did not delegate the authority to any other party to determine whether visitation would take place. Here, the juvenile court ordered visitation for mother, which complied with section 366.26, subdivision (c)(4)(C). That mother was upset about the reduced visitation does not render the revised visitation schedule erroneous.
Mother also points out that after the legal guardianship order was issued in December 2016, she continued visitation with Te. and Ta. once per week and then twice per month, and "there was no showing the original visitation schedule was detrimental to the boys." As discussed above, no showing of detriment was required. Moreover, DCFS noted that Te. and Ta. had increased extracurricular activities, which made scheduling visitation more difficult. Thus, the children were not as available for visitation as they had been earlier in the case.
Furthermore, prior visits with mother combined Te. and Ta.'s visitation with father. The current order allows for visitation for mother, father, and the siblings separately, so that Te. and Ta. have at least three visits with family members per month. It is reasonable for mother's visitation to be separated from father's, because the 2011 juvenile court case arose from domestic violence between mother and father, and the record states that father was incarcerated again in 2018 for assaulting mother. In addition, at the time of the court's order in March 2019, parental rights for sibling M. had been terminated, and sibling Ty. refused to visit mother. Under these circumstances, the court's order for separate sibling visitation was warranted. Thus, the fact that mother had more frequent visits earlier in the case does not compel a finding that the juvenile court abused its discretion by reducing mother's visitation in March 2019.
Mother also decries the "exaggerated argument that the boys' tantrums in the car while being transported to visitation placed the social worker's life at risk." Mother does not acknowledge that the boys were also at serious risk from Ta.'s tantrums in the car, since Ta. was not only distracting the CSW as she drove them to visits, but he was also taking off his seat belt and attempting to open the car door while the vehicle was in motion. Mother insists in her appellate briefs that Ta.'s "tantrums in the car were not the result of him going to visit with his mother," so the tantrums were irrelevant to the visitation schedule. We disagree. "The goal of dependency proceedings, both trial and appellate, is to safeguard the welfare of California's children." (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) The juvenile court did not abuse its discretion in considering the safety issues involved in transporting Te. and Ta. to visits with mother.
DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.