IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
March 24, 2011
IN RE S.R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
J.R. ET AL., DEFENDANTS AND APPELLANTS; S.R. ET AL., RESPONDENTS.
Super. Ct. Nos. JD224910, JD224911, JD224912
The opinion of the court was delivered by: Nicholson , Acting P. J.
In re S.R. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
J.R. (father) and M.M. (mother), parents of the minors, appeal from orders of the juvenile court denying their petitions for modification and their motions for sanctions against the Department of Health and Human Services (Department), and terminating their parental rights. (Welf. & Inst. Code, §§ 388, 366.26, 395; Code Civ. Proc., § 177.5.)*fn1 Appellants contend an illusory visitation order combined with the social worker's failure to perform essential functions require reversal of the denial of the petitions for modification and termination of parental rights. We affirm.
In October 2006, the Department removed the three minors, S.R., R.R. and L.R., all six years of age or younger, from parental custody due to domestic violence in the home. Both appellants speak Spanish and required interpreters. The court ordered reunification services but, after 18 months, appellants failed to reunify and services were terminated in April 2008.
The court ordered a bonding assessment. The social worker, who incorrectly believed both appellants and the minors spoke Spanish, was unable to find an expert who could perform the bonding study in Spanish and the Department filed a petition for modification seeking to eliminate the need to perform the study. The court granted the modification and subsequently terminated parental rights. In the first appeal, (case No. C060404, see In re S.R. (2009) 173 Cal.App.4th 864), this court reversed the orders granting the petition for modification and terminating parental rights concluding there was an inadequate factual basis to modify the order for a bonding study.
During the time the case was on appeal, the minors remained placed together in a foster home where the caretakers were willing to adopt all three minors. All three minors were demonstrating educational and skills delays, but the stability of the placement was beneficial to the minors and they were showing improvement. Also during this time, mother gave birth to a fourth child who was detained immediately and eventually placed with the other minors. Parental rights were terminated as to this child in March 2009. Prior to the termination in March 2009, mother visited the child twice and father never visited.
The hearing on the remittitur occurred August 28, 2009. The court again ordered a bonding assessment and reinstated visitation between appellants and the minors.*fn2 Shortly thereafter, the minors were moved to new placements because the prior caretakers were divorcing and felt unable to provide for the minors' needs.
A bonding study was conducted in September 2009 by Dr. Jayson Wilkenfield who, having been informed that the minors did not speak Spanish, felt able to proceed with the study. The study concluded there was no evidence of a strong positive emotional attachment between the minors and appellants and termination of parental rights would not be detrimental to the minors. During the observed visit portion of the evaluation, the minors essentially ignored appellants and had little interaction with appellants. The evaluator noted the parents had not visited the minors since the prior order terminating parental rights.
At a hearing in December 2009, the court ordered a report on why the bonding study could now be conducted without a Spanish speaking expert. During the hearing, appellants asserted they had tried to contact the social worker for visits but their calls were never returned. The court confirmed the prior visitation order, instructed counsel to provide the social worker's number to appellants, and directed the Department to make reasonable efforts to arrange for visits.
Subsequently, the social worker provided a report on the bonding assessment. Apparently unimpressed with the explanation that Dr. Wilkenfield felt able to conduct the evaluation as long as the minors were not Spanish speaking, the court ordered a second bonding assessment to be performed by a Spanish speaking expert.
The second evaluation, completed in February 2010, concluded L.R. had a strong bond with appellants but the relationship was negative; R.R. had a weaker bond and also had a negative relationship with appellants; and S.R. had a relatively weak relationship with appellants which was neither positive nor negative. The overall conclusion was that termination of parental rights would not be detrimental to any of the minors and the minors would be best served by stable and permanent placements. The evaluation was the second time the minors had seen appellants since the case was reinstated and the minors were more interactive with appellants and with their two-month-old baby sister, appellants' fifth child. Appellants' behaviors in the observed visit were consistent with their prior visits in that mother was somewhat passive and content to observe the minors while father was more interactive and made significant efforts to engage the minors.
Appellants filed motions for sanctions against the Department alleging the Department failed to comply with the court's August 28, 2009, order for reinstated visitation. Appellants cited the lack of visitation from August to December 2009 and the court's reiteration of the visitation order which still did not result in visitation. Appellants further complained that the Department considered the two bonding assessments as visits.
The Department filed an opposition to the sanctions motions supported by a declaration from the social worker which stated that appellants did not contact the social worker about visits until January 2010, the bonding assessments were equivalent to supervised visits and that, since the social worker now had current contact information for appellants, visits were occurring.
Appellants also filed petitions for modification, seeking return of the minors or further services, alleging there had been no incidents of domestic violence for two years and that they had retained custody of their newest child under a family maintenance agreement.
An addendum filed in May 2010 reported on visits which occurred in March and April 2010. The report stated appellants attended the March visit with a person from another agency who asked for information about the case. The social worker declined to discuss the case with that person but permitted him to attend the visit. The social worker had to caution both father and that person not to discuss the case with the children. As in prior visits, father engaged the minors but mother did not interact with them or her baby beyond smiling and feeding the baby. At the end of the visit, the minors separated easily from appellants and returned to their respective caretakers. A few days later L.R.'s foster mother informed the social worker that father had secretly input his telephone number into L.R.'s electronic game during the visit.
Appellants again arrived with a person from another agency for the April 2010 visit. That person requested to be present at the visit, but was not allowed to attend because he was limited to working with appellants and the baby, not with these minors. Once again, mother did not interact much with the minors and, while father attempted to engage the minors, they chose to play with each other.
At the contested hearing, the social worker explained there was no contact between the parents and the minors after the August 28, 2009, visitation order until the bonding assessment in September 2009. The social worker had tried to locate the parents and did leave a business card at their residence. She did not call them because she had no current telephone number. The social worker testified she did not hear from appellants until January 2010 when, at his attorney's direction, father called her. Other than this call, the social worker had no contact with appellants after the first assessment; she checked with the social worker handling the baby's case to see if they had left a message with that social worker but there were no messages. The social worker said the second parent-child contact after the August 28, 2009, order was the second bonding assessment in February 2010. After the second bonding assessment, appellants had monthly visits in March and April and a visit was scheduled for May 2010. The social worker considered the bonding assessments to be visits because they are essentially observed visits. She noted that, after the bonding assessment in February, the minors had additional time to see appellants and play with the baby and the whole contact lasted about one to two hours. She testified that the minors needed stability and structure to avoid regression in behavior and skills.
The foster mother for the minors from August 2008 to September 2009 testified that all the minors showed educational and skills delays but had improved over time. She believed that separate placements were probably best to meet the significant needs of the minors.
The social worker on the baby's case testified that she learned of two incidents of domestic violence between appellants which occurred in the month preceding the hearing.
The court took the matter under submission and issued an extensive written ruling which was read into the record. The court denied the petitions for modification and the motions for sanctions, terminated parental rights, and freed the minors for adoption. In its ruling, the court denied the petitions for modification due to the recent domestic violence which demonstrated appellants had not benefitted from prior services designed to address the problem. The court criticized the social worker's actions prior to the first order terminating parental rights which resulted in delay of the case both in securing a bonding assessment and in prosecuting the first appeal. The court further concluded the February 2010 bonding assessment was credible and its conclusion that termination of parental rights would not be detrimental to the minors was supported by the facts in the report. The court found the Department did not violate the visitation order, despite some actions which may have worsened the minors' situation, and denied sanctions.
I Appellants' arguments that the juvenile court erred in denying the petitions for modification and in terminating parental rights depend primarily on the characterization of the visitation order as illusory. Appellants argue the order is illusory because it gave the social worker the ability to determine whether visits would occur and because the court never enforced the order.
It is apparent that the petitions for modification were not denied because of any failure to maintain contact or demonstrate a bond which an illusory visitation order could negatively affect. Rather, the petitions were denied because appellants failed to establish a change in circumstances when they admitted they had engaged in mutual incidents of domestic violence within a month of the hearing, clearly demonstrating there was no significant change in the family dynamics from the time the minors were first removed in 2006. (§ 388; see In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) However, we address the visitation order insofar as it may have had an impact on the issues at the hearing terminating parental rights.
II The juvenile court is "required to permit continued visitation pending the section 366.26 hearing absent a finding visitation would be detrimental" to the minor. (In re David D. (1994) 28 Cal.App.4th 941, 954, original emphasis.) During reunification, visitation must be as frequent as possible "consistent with the well-being of the child" to maintain ties between the parent and the child and provide information about possible return of the child. (§ 362.1 (a)(1)(A).) However, when reunification has failed, the purpose of visitation is to maintain the bond between parent and child so that, in a proper case, a parent may be able to satisfy the statutory exception to adoption. (See In re David D., supra, 28 Cal.App.4th at p. 955; § 366.26, subd. (c)(1)(B)(i).)
The juvenile court has the sole power to determine whether visitation will occur and cannot delegate that power to the Department. The court may delegate only the "responsibility to manage the details of visitation, including time, place and manner." (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) When the right to visitation is defined, the court may order that the Department take the well-being of the minors into account subject to court control. (Id. at p. 1375.)
Here, the court's order of August 28, 2009, clearly stated appellants' right to visitation and specified that visits were to be supervised. However, recognizing that a significant period of time had passed since parental rights were first terminated and visitation ceased, the order further specified that the frequency of the visits be consistent with the well-being of the minors. It is apparent that the court was permitting the Department leeway to ease the minors back into contact with appellants to avoid negative consequences and possible confusion of the minors who necessarily believed appellants were no longer in their lives. The remainder of the order included standard language that the minors' wishes be considered and set conditions for visits to protect the minors from any effects of appellants' substance abuse. While the order could have contained additional language to clarify the right to visitation, i.e., "reasonable" or "regular" visitation, the order was adequate to define appellants' rights and to allow enforcement if problems arose. Indeed, when appellants first brought the visitation issue to the attention of the court, the court confirmed the order, directed the Department to act, and appellants' counsel to provide appellants with contact information to facilitate visitation. The order itself was not illusory.
Appellants also assert that the Department did not facilitate the August 28, 2009, visitation order by contacting them and immediately setting up visits. The record shows the social worker did attempt to contact appellants and left her card at their address because she had no current telephone number. When she received no contact from appellants, she did not attempt to set up a visit. We cannot fault the social worker for waiting to hear from appellants whether they were requesting visits, particularly since they had made little effort to visit their fourth child prior to termination of their parental rights as to her. Moreover, father had communicated with the social worker in English and she had no reason to believe that he would not understand the card or at least contact the Department for clarification. The evidence is conflicting on whether appellants made any attempt to contact the Department prior to father's telephone call to the social worker in January. The court simply assumed at the December hearing that appellants' interest in visitation was established as of that date and acted accordingly. Shortly thereafter, father did call the social worker because his attorney had told him to, but did not actually request visitation. It was not unreasonable for the social worker to believe that he was calling about the second bonding assessment which had to be arranged. Following the second bonding assessment, appellants had a visit separate from the assessment and thereafter, regular monthly visits were arranged. Thus, from August 28, 2009, until the date of the court's ruling in June 2010, appellants visited their children four out of a possible nine times, in February through May. Appellants were also afforded additional time to interact with their children during the bonding assessments in September 2009 and February 2010. Regardless of any prior failings which may have resulted in delaying the minors' permanency, the social worker acted reasonably following the August 2009 visitation order to arrange regular visitation for appellants.
To the extent that appellants assert the order terminating parental rights should be reversed because the illusory visit order impaired their ability to show termination of parental rights would be detrimental to the minors, the argument fails.
As discussed above, the visitation order was not illusory and the social worker did not interfere with appellants' right to visit the minors. Given the quality and dynamics of the interactions throughout the dependency, including those following the August 28, 2009, order, appellants could not have established termination of parental rights would be detrimental to the minors in the face of two bonding assessments which agreed that the minors would not suffer any detriment because the parent-child relationships were not strong or positive. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.)
The orders of the juvenile court are affirmed.
We concur: ROBIE,J. DUARTE ,J.