Opinion
A156519
12-03-2019
In re A.Q., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-JVSQ-18-17981-01)
A.Q., a minor, was removed from the care of Mother and placed with Father. After a contested disposition hearing, the juvenile court upheld the removal, ordered Father to assume custody of A.Q., and declined Mother's request for visitation. Mother appeals the juvenile court's denial of her requests for visitation and for a continuance of the dispositional hearing. We affirm.
BACKGROUND
A.
In early July 2018, Mendocino County Social Services Agency ("Agency") received a report that both parents were unable to properly care for A.Q., who was then six years old. Soon after, social worker Jennifer Hamilton met with A.Q. and Father, who was taking care of A.Q. at the time. Father explained to her that he had recently filed for custody of A.Q. and removed her from Mother's care because Mother had mental health issues and had struck A.Q. Hamilton observed that A.Q. had significant developmental delays, poor hygiene, and possible hearing problems, and she helped Father obtain resources to better care for A.Q.
Hamilton also met with Mother several times that summer. During one of the meetings, Mother admitted to taking sleeping pills and medication for anxiety. Mother expressed delusional thoughts on multiple occasions—for example, the "cartel" is after her, an SUV follows her around town, and unknown individuals repeatedly try to break into her home.
B.
In September 2018, the Agency filed a petition to detain A.Q. from Mother only. It alleged A.Q. was at substantial risk of suffering serious physical harm or illness as a result of mother's inability to provide regular care for the child due to mental illness. (The petition originally included allegations against Father, but the Agency dismissed those allegations later at the jurisdictional hearing.) The next day, the Agency also filed a detention report that recommended removing A.Q. from Mother's care and that Father care for A.Q.
At the detention hearing the following week, the court ordered A.Q. detained from Mother only. The court set a jurisdictional hearing for one month later and ordered supervised visitation for Mother in the interim.
Between the detention and jurisdictions hearings, Mother had five supervised visits with A.Q. Three visits went well, and two visits went poorly. Mother exhibited a variety of problematic behaviors during these two visits. For example, Mother told A.Q. that Father was not "doing his job", that the court would return A.Q. to Mother soon, that Father was getting rid of A.Q.'s dog, and that A.Q. was overweight and had high cholesterol. At the end of one visit, Mother clung to A.Q. and refused to let go and accused the Agency of getting "paid to take kids away from their parents." Father reported that A.Q. had regressed to growling and barking after one of the poor visits, and that A.Q. was upset and clingy after another.
In an addendum to the jurisdictional report, the Agency reported an incident in which Mother confronted Father at a grocery store in violation of a restraining order. When police arrived and arrested Mother for violating the restraining order, Mother began screaming. During booking, when an officer asked Mother if she had anything illegal on her, Mother pulled down her pants and lifted her shirt, "revealing her naked body." Later, she said she was thirsty and was given a cup of water, which she promptly poured over her head.
At the jurisdictional hearing, Mother testified on her own behalf. Mother claimed that she went to counseling weekly but could not provide a diagnosis. She said she had been taking "anxiety pills" for three years. She described being followed several times by a Hispanic man driving a black car who may have been with the cartel.
The court concluded Mother suffered from mental illness and delusions that put A.Q. at risk of serious physical harm or illness. It sustained the petition against Mother and set a dispositional hearing.
Mother visited with A.Q. five more times before the dispositional hearing. Three visits went poorly. During the visits that went poorly, Mother told A.Q. that she would feel sad if Mother died; told A.Q. that she was fat; ranted about custody issues; and put lotion on A.Q.'s face that irritated her skin, and Mother refused to wash it off. At the end of one visit, A.Q. had three red marks on her face that she claimed the "monster" had caused. A.Q. had called Mother a "bad monster" earlier during that visit.
The juvenile court held a dispositional hearing on January 31, 2019. Mother testified the Agency workers did not listen to her, and she expressed concerns about Father. She said the Agency would rather see her "take a whole bunch of pills and put me in a nut house instead of me seeing life." Mother claimed that she was on medication and received mental health treatment. Mother admitted the Agency had told her that she needed to seek mental health treatment if she wanted to increase her visits.
Social worker Hamilton testified Mother had not used the referrals for mental health services that the Agency had provided her. Hamilton noted that many of Mother's visits with A.Q. had gone poorly and that three Agency staff were needed to ensure A.Q. was safe during supervised visits. She thought it was unsafe for Mother to have unsupervised visitation with A.Q. and that Mother's behavior during her visits was not beneficial to A.Q. She was unaware of any formal, private visitation agencies in the area. Hamilton thus recommended that the court deny Mother visitation.
The court found Father had improved A.Q.'s living situation enough that the court and the Agency no longer needed to be involved. It therefore terminated its jurisdiction over A.Q. and awarded sole physical and legal custody to Father. The court ordered that Mother have no visitation with A.Q. because it concluded, under a clear and convincing evidence standard, that Mother's visitation would be detrimental to A.Q. The court told Mother, however, that if she addresses her mental health issues, she could ask the family law court to modify the order to permit visits with A.Q.
DISCUSSION
A.
We disagree with Mother's claim that the juvenile court abused its discretion when it denied Mother visitation.
If a juvenile court places a child with a parent that did have custody at the time the problems arose, the court may designate the parent as the legal and physical custodian of the child and may terminate the court's jurisdiction. (Welf. & Inst. Code § 361.2, subd. (b)(1) .) It may, in its discretion, provide reasonable visitation by the parent who was previously caring for the child. (Ibid.) Such an order commonly is referred to as an "exit order" and remains in effect until modified or terminated by the family court. (In re Armando L. (2016) 1 Cal.App.5th 606, 616.)
Undesignated statutory references are to the Welfare and Institutions Code.
Mother contends Section 361.2 only applies when a child is removed from an offending parent (i.e., a parent that caused the problems that led to the court asserting jurisdiction over the child) and placed with a nonoffending parent. (See In re John M. (2013) 217 Cal.App.4th 410, 422-424 [discussing split of authority on whether the statue requires a parent to be nonoffending].) The point is irrelevant. The Agency dismissed allegations it originally made against Father, leaving only allegations related to Mother's mental illness that pre-dated Father's custody of A.Q. --------
When a court considers ordering visitation, it has a special responsibility to consider the child's overall well-being and safety where one or both parents have engaged in abuse or neglect. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712; In re Roger S. (1992) 4 Cal.App.4th 25, 31.) "[T]he juvenile court, which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child," (In re Jennifer R., supra, 14 Cal.App.4th at p. 712), and has broad discretion to determine the right and extent of visitation by a non-custodial parent (In re T.H. (2010) 190 Cal.App.4th 1119, 1123; In re Chantal S. (1996) 13 Cal.4th 196, 213-214.) We review the juvenile court's decision concerning visitation for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
We conclude that the juvenile court did not abuse its discretion in denying Mother visitation rights in its exit order. The court considered A.Q.'s overall well-being and safety and determined that Mother's behavior, which included "emotional outbursts," was detrimental to A.Q. Hamilton's testimony about Mother's poor behavior during visits supports the court's ruling. The court's denial of visitation is further supported by Mother's unwillingness to get a mental health assessment or additional treatment.
Mother contends the court lacked discretion to deny Mother visitation, citing section 366.22, subdivision (a)(3), which requires that the court "continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child." But section 366.22, subdivision (a)(3) applies when neither parent is granted custody. (§ 366.22, subd. (a)(3) ["Unless . . . the child is not returned to a parent or legal guardian at the permanency review hearing . . . . "].) Here, the court granted custody to Father.
Mother also contends that the Agency and the court should have investigated whether supervised visitation was available outside of the dependency system. But Mother cites no authority that they were required to do so. Her argument is forfeited. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)
In sum, the juvenile court did not abuse its discretion by denying Mother visitation of A.Q.
B.
We reject Mother's argument that the juvenile court abused its discretion by denying mother's oral motion for a continuance of the jurisdictional hearing to review late-produced discovery and to locate a late-identified witness.
1.
Before the court addressed the merits of the dispositional hearing, Mother's counsel orally requested a continuance because she had received discovery from the Agency three days late and only three days before the hearing. She also said that she had been unable to contact a witness Mother had identified the day before the hearing. County Counsel countered that neither reason constituted good cause. The juvenile court agreed and denied the continuance.
2.
While continuances are discouraged in dependency cases (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604), a juvenile court may continue a dependency hearing upon a showing of good cause and if the continuance is not contrary to the child's best interests. (§ 352, subds. (a)(1) and (a)(2); In re Mary B. (2013) 218 Cal.App.4th 1474, 1481.) A continuance request must be filed at least two court days before the hearing date along with affidavits or declarations detailing the specific facts necessitating the continuance. (§ 352, subd. (a)(3).) We review the court's denial of a continuance request for abuse of discretion. (In re Giovanni F., supra, 184 Cal.App.4th at p. 605.)
Here, Mother's counsel failed to file a timely continuance request or show good cause for her oral continuance request at the disposition hearing. (§ 352, subd. (a)(3).) Mother's counsel knew at least five days before the dispositional hearing that she had not received discovery by her requested date. Mother's counsel also did not describe the amount of discovery produced, which is necessary to establish the need for more time. Likewise, regarding counsel's inability to locate a witness, counsel did not explain why she was unable to identify this witness earlier or how the witness's testimony would have assisted the court at the dispositional hearing.
On this record, we cannot say the trial court abused its discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
BURNS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.