IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 7, 2010
IN RE M.C., A PERSON COMING UNDER THE JUVENILE COURT LAW. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
S.C., DEFENDANT AND APPELLANT.
Alameda County Super. Ct. No. OJ06004219
The opinion of the court was delivered by: Jenkins, J.
In re M.C. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal from findings and order entered by the juvenile court subsequent to the interim review hearing held pursuant to Welfare and Institutions Code section 366.3 on April 7, 2010.*fn1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 26, 2006, a section 300 petition was filed by respondent Alameda County Social Services Agency (agency), alleging that appellant S.C. (mother) had neglected her son, born in January 2002 (minor), abused drugs, and failed to provide stable housing for him. (§ 300, subds. (b), (g).) The juvenile court, among other things, declared minor a dependent of the court and ordered reunification services for mother.*fn2 A subsequently-prepared psychological assessment of minor indicated he had an attachment disorder requiring an intensive therapeutic foster home.*fn3
For the next year, from approximately October 2006 to September 2007, mother made little progress with her case plan, lacked stable housing and maintained only sporadic visitation with minor. However, the occasional visits that did occur between mother and minor went fairly well, with mother mostly acting appropriately and affectionately.
After several unsuccessful attempts to place minor, he was successfully placed with L.S., his paternal aunt, on September 1, 2007. Minor continued to struggle with behavioral problems, including hyperactivity, but was making progress in therapy and was adapting well to his placement with L.S.
On October 2, 2007, following a review hearing, the juvenile court terminated mother's reunification services after finding that, despite receiving reasonable services, she had made minimal progress with her case plan. Mother continued visitation with minor and, while some visits were fine, she sometimes acted or spoke inappropriately to him.
Following a hearing on December 6, 2007, the juvenile court found that a permanent plan of placement with L.S. was appropriate with the specific goal of legal guardianship, and set a permanency planning hearing for April 3, 2008. The agency thereafter reported that minor was "blossoming" under L.S.'s care, and that L.S. had created a structured and loving environment well-suited to his special needs.
At the permanency planning hearing on April 3, 2008, the juvenile court, among other things, ordered as follows: "Supervised visitation with minor and mother will take place in conjunction with the minor's therapy." Additional visitation was left to the discretion of the agency and minor's therapist. The hearing was then continued to June 10, 2008.
At the continued permanency planning hearing on June 10, 2008, the juvenile court made the following order with respect to visitation (which was substantially the same as the previous order): "Visitation between the child and the mother shall occur as part of the child's therapy and shall be supervised by the child's therapist." The permanent plan continued to be legal guardianship, and letters of guardianship were issued to L.S. The juvenile court further found that the agency had provided reasonable services and complied with the case plan.
Following the permanency planning hearing, mother remained out of contact for several months, but then had two supervised visits with minor in December 2008.*fn4 On January 29, 2009, Dr. Shallat, minor's therapist, reported that mother had not scheduled any further visits since December 2008, despite his numerous attempts to contact her.*fn5 Dr. Shallat also reported that mother was engaged and appropriate with her son during the two supervised visits, but a subsequent unsupervised visit had not gone well because mother had not taken minor to the agreed-upon location or returned him to L.S. at the agreed-upon time. Finally, Dr. Shallat reported that minor appeared to be slowly progressing towards his goals (which included controlling aggressive and harmful impulses), but that his office visits had lately been inconsistent and his behavior continued to be disruptive and challenging at times.
On May 6, 2009, an interim progress hearing was held, at which the agency reported that, according to Dr. Shallat, no supervised visits had occurred between mother and minor since December 2008. Minor was adjusting well to his placement with L.S., whose support and structured lifestyle appeared to have a positive effect, yet minor continued to have behavioral problems at school. Minor continued to attend twice weekly therapy sessions with Dr. Shallat, however these sessions had been disrupted in recent weeks because minor had been hospitalized for a bronchoscopy and L.S. had some scheduling conflicts.
Dr. Shallat recommended that mother participate in some individual therapy sessions before transitioning back to supervised visits, but mother had only met with him once and had cancelled several scheduled sessions due to transportation problems. Mother had one unsupervised visit with minor when he was in the hospital for the bronchoscopy, after which minor's behavior had apparently regressed, prompting minor's counsel to suggest that the agency consider the therapist's input in the future when determining the nature and frequency of visitation. The juvenile court agreed with this suggestion, and ordered the permanent plan to remain legal guardianship.
In a status report dated October 20, 2009, the agency advised that L.S. had decided to discontinue minor's therapy with Dr. Shallat because she believed that it was ineffective and that a more "hands-on" approach would better serve his needs. To address this situation, the agency's social worker decided that, until a new therapist was found, she would supervise visits between mother and minor so they could remain compliant with the court-ordered supervised visitation. Mother had one such social worker-supervised visit on August 31, 2009, which had gone well, and was scheduled for another on November 2, 2009. Mother requested unsupervised visits with minor, but was told she would need to be assessed further before that could happen. Minor's placement with L.S. remained positive, although his disruptive behavior at school continued.
At the October 20, 2009 interim progress hearing, mother's counsel advised the juvenile court that the therapeutic sessions with mother and minor had not occurred since earlier in the year in "blatant disregard for the Court's order . . . ." The agency explained minor was on the waitlist for new therapists, and that in the interim the social worker was supervising visits "so she would be in compliance with the Court's order." The juvenile court thereafter continued the dependency and ordered the permanent plan to remain legal guardianship with L.S. The juvenile court kept the prior visitation order in place.
Following this hearing, the social worker arranged for mother and minor to have supervised visits at the agency, which occurred on November 23, 2009, December 21, 2009, and March 15, 2010. In advance of an April 7, 2010 interim progress hearing, the agency reported that, during these supervised visits, mother and minor interacted appropriately and affectionately, however minor tended to get hyperactive and "test limits." Two supervised visits were cancelled; the first due to the social worker's illness, and the second due to L.S.'s unavailability. L.S. also allowed mother to have two unsupervised visits with minor on January 17, 2010 and March 7, 2010. The first visit went smoothly, but L.S. reported that, afterward, minor's misbehavior escalated. The second visit (to church) did not go smoothly because mother was over an hour late and unavailable by cell phone. The agency advised mother that therapeutic visits continued to be necessary so that minor could learn to cope with his feelings for her.
The agency also reported that minor had found a new therapist, Dr. Ross, who did not offer family therapy services. The agency explained that referrals for minor had been made to a number of community agencies that would provide family visitation services, however several of these agencies refused to take the case because mother's reunification services had ended. The social worker therefore arranged individual therapy for the mother at Psychological Services Center, with the intent that minor would join her for weekly family therapy sessions once mother's therapist found it appropriate.
According to the agency's report, on March 15, 2010, mother's therapist completed a referral for family therapy. However, L.S. advised that, given her schedule, she was unable to transport minor to another weekly appointment, but could transport him once a month. The agency thus volunteered to assist in providing transportation for minor so weekly therapeutic visits could occur.
The agency also reported that minor's placement with L.S. continued to go well, that he was enrolled in a new school better able to meet his needs, and had begun seeing a new therapist who seemed to employ a more effective "hands on" approach. L.S. had informed the agency that she believed the dependency should soon be dismissed because minor deserved a normal life with more time for normal activities. While minor had told the agency he wished to continue visiting mother, he did not want to live with her because "dangerous stuff happened." The agency agreed L.S. was an "excellent" caregiver for minor, and requested permission to dismiss the dependency once KinGap funding was in place (which would provide funding for L.S. after dismissal).
Meanwhile, mother continued to make improvements in her own life, gaining employment and starting college classes in pursuit of a counseling degree.
Following the April 7, 2010 interim progress hearing, the juvenile court found that minor had received reasonable services, and that "no one was precluding visitation" with mother. The juvenile court also found the permanent plan of legal guardianship continued to be appropriate. Finally, the juvenile court ordered that the dependency proceedings would continue but, over mother's objection, agreed to allow the agency to file an ex parte request for dismissal in its discretion. This timely appeal followed.
Mother raises two related arguments for our review. Mother contends the juvenile court failed to comply with its own order with respect to visitation, and impermissibly delegated its authority over visitation to minor's legal guardian, L.S. The following legal principles are relevant to these issues.
A reviewing court will not disturb a juvenile court's decision in a dependency proceeding "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." (In re Stephanie M. (1994) 7 Cal.4th 295, 318 [citations].) "The appropriate test for abuse of discretion 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." (Id. at pp. 318-319, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
Where, as here, the juvenile court has terminated reunification services for the parent and appointed a legal guardian for the child, "the parents' interest in the care, custody and companionship of the child are [sic] no longer paramount. Rather, at this point, 'the focus shifts to the needs of the child for permanency and stability.' " (See In re Stephanie M., supra, 7 Cal.4th at p. 317, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Accordingly, the court must at this point focus foremost on the child's best interest in determining the issue before it. (See id.; see also In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238.)
With respect to the specific issue before us, the "juvenile court has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to [a third party]." (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) "It is the juvenile court's responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374, 1376 [28 Cal.Rptr.2d 705] ['Visitation arrangements demand flexibility to maintain and improve the ties between a parent or guardian and child while, at the same time, protect the child's well-being.']; In re Danielle W. (1989) 207 Cal.App.3d 1227, 1234-1235 [255 Cal.Rptr. 344].)" (In re S.H. (2003) 111 Cal.App.4th 310, 317.) Moreover, to sustain the appropriate balance, "the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur." (In re S.H., supra, 111 Cal.App.4th at p. 317. See also In re Moriah T., supra, 23 Cal.App.4th at p. 1374.) In addition, when appropriate, the juvenile court may also delegate authority over the details of the visits to private individuals with an interest in the case, including mental health professionals or the child's legal guardians. (In re Chantal S. (1996) 13 Cal.4th 196, 214 [affirming the juvenile court's order specifying that visitation could commence in a restricted setting when father's chosen therapist determined he had made sufficient progress in therapy]; cf. In re M.R. (2005) 132 Cal.App.4th 269, 274 [acknowledging that the juvenile court may delegate to the minor's legal guardian the authority to decide "the time, place and manner in which visitation will take place"].)
In this case, we first note that the juvenile court gave neither L.S. nor the agency complete discretion to decide whether any visitation between mother and minor would occur. Rather, the juvenile court's order provided that "Visitation between the child and the mother shall occur as part of the child's therapy and shall be supervised by the child's therapist." (Emphasis added.) The juvenile court's mandatory order reasonably stemmed from the determination by minor's therapist that visits with mother often negatively impacted minor's well being or did not go as planned, making visitation in a supervised, therapeutic setting preferable.
Moreover, while it is true the visitation order impliedly delegated to the agency and minor's therapist the responsibility for scheduling and supervising visitation, the juvenile court was permitted to delegate this responsibility so as long as the minor's interests were protected. (In re Moriah T., supra, 23 Cal.App.4th at p. 1375 [affirming a visitation order where "the juvenile court simply delegated . . . the responsibility of managing the ministerial details of visitation"]; In re Stephanie M., supra, 7 Cal.4th at p. 317 [the juvenile court must focus on the child's interests rather than the parent's interests once reunification services have terminated]. See § 366.21.)
Here, we believe that, under the juvenile court's visitation order, the minor's interests were adequately protected, including his interest in maintaining visitation with mother in conjunction with his therapy. While mother correctly points out that L.S. unilaterally decided to stop minor's therapeutic visits with Dr. Shallat, who had been willing to supervise visitation between minor and mother, there is no evidence L.S. undermined the visitation order by forestalling all therapy for minor, or by forestalling mother's participation in therapy with minor. Rather, the record reflects L.S. stopped the visits with Dr. Shallat because she found them ineffective and preferred a more "hands on" approach, but remained supportive of supervised therapeutic visits with mother.
Most importantly, in response to L.S.'s decision to replace minor's therapist, the agency immediately took steps to ensure that mother and minor would both continue to receive therapy, and that they would eventually continue supervised therapeutic visits. In particular, after minor found a new therapist who did not conduct family sessions, the agency found an individual therapist for mother who was willing to hold family sessions once the therapist deemed it appropriate. The agency's social worker also stepped in to supervise visits between minor and mother until such time as the family sessions could resume. These agency-supervised visits occurred on August 31, 2009, November 23, 2009, December 21, 2009, and March 15, 2010. And, once mother's new therapist approved family sessions in March of 2010, the agency offered to assist with transportation to facilitate weekly sessions after L.S. advised she could only provide transportation for minor on a monthly basis.
During this time of transition, the juvenile court held several hearings to monitor visitation and other issues between minor and mother. The juvenile court thus remained fully apprised of the agency's efforts to maintain appropriate visitation while new therapy for mother and minor was being arranged and, in the meantime, continued in effect the previous visitation order. Moreover, when confronted with mother's concern that L.S. was unilaterally deciding whether visitation would occur, the juvenile court reassured her otherwise, emphatically stating on the record that "no one was precluding visitation." Given that several supervised visits did in fact occur during this time, the juvenile court's statement was undoubtedly true.
Under these circumstances, we find nothing wrong with the juvenile court's approach to visitation in this case. First and foremost, the juvenile court's focus was quite properly on the minor rather than mother, and his need for continued therapy to address his ongoing behavioral problems. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Danielle W., supra, 207 Cal.App.3d at p. 1238.) At the same time, the juvenile court continued to protect minor's interest in ongoing visitation with mother despite the scheduling hurdles caused by his transition to a more "hands on" therapist, by monitoring and enforcing the agency-supervised visitation in conjunction with individual therapy. Thus, the juvenile court adequately, if not perfectly, enforced its order for mandatory visitation in conjunction with minor's therapy. As our colleagues in the Third District have explained, "parties in a dependency proceeding should not be locked into a visitation order which specifies a rigid schedule and length of visits. Such an order is not in the best interests of either the child or the parent or guardian because it fails to allow the flexibility necessary to rapidly accommodate the evolving needs of the dependent child and his or her parent or guardian." (In re Moriah T., supra, 23 Cal.App.4th at p. 1376. See also In re Danielle W., supra, 207 Cal.App.3d at p. 1237 ["The nature of the task of the juvenile court system in responding to the rapidly changing and complex family situations which arise in dependency proceedings and the interests of judicial economy require the delegation of some quasi-adjudicatory powers to a member of the executive branch dedicated to the dependent child's welfare"].)
Finally, having found no error with respect to the juvenile court's approach to visitation in this case, and recognizing that the nature and frequency of the supervised visitation between minor and mother appears to still be evolving, we admonish all parties that concerns over the efficacy and modification of visitation orders should be brought to the attention of the juvenile court by way of a 388 petition to modify. (In re Moriah T., supra, 23 Cal.App.4th at p. 1377.)*fn6
The juvenile court's findings and order of April 7, 2010 are affirmed.
We concur: McGuiness, p. J. Siggins, J.