Opinion
E067320
08-17-2017
In re T.M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1400153) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Reversed and remanded with directions. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant J.M. (Mother) has a history of being involved in violent relationships with men and a significant mental health history, resulting in the removal of her 12-year-old son T.M. Mother appeals from the juvenile court's visitation order. She argues the court failed to make a specific visitation order, thereby improperly delegating discretion to the legal guardians. We find that the juvenile court erred in failing to make an appropriate visitation order at the Welfare and Institutions Code section 366.26 hearing to ensure that visitation with Mother, at a minimum level determined by the court, would occur. We accordingly reverse the portion of the order regarding Mother's visitation and remand the matter to the juvenile court to make an appropriate visitation order consistent with this opinion. In all other respects, we affirm the judgment.
C.J. is the biological father of T.M., and was found to be T.M.'s alleged father. A.W. (Father) was found to be the presumed father of T.M. T.M. was unaware that C.J. was his biological father and neither C.J. nor Mother wanted to disclose that information to T.M. Neither father is a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Riverside County Department of Public Social Services (DPSS) in February 2014 when a referral was received alleging ongoing domestic violence between Mother and her boyfriend, K.Y. Mother recently had her hand broken and her face beaten by K.Y. K.Y. was overheard yelling at and hitting Mother. Mother would send emails asking for then eight-year-old T.M. to be cared for if anything happened to her. Mother adamantly denied any domestic violence between her and K.Y. Mother also had a history with child protective services involving allegations of physical abuse and general neglect of her children.
The social worker visited the home on February 19, 2014, with police officers. K.Y. was present and searched pursuant to probation search terms. Officers found a glass methamphetamine pipe in K.Y.'s possession and detained him. Officers also found a baggie of methamphetamine in Mother's bedroom closet and an open bottle of "hydro-codeine" pills on a television stand accessible to T.M. Mother admitted that she was diagnosed with bipolar disorder and took medication; however, no medication was observed in the home. T.M. reported that K.Y. had lived in the home for about a month and that K.Y. hit Mother causing her to sustain bruising to her arm. Mother then reluctantly admitted to domestic violence. T.M. was removed and placed into protective custody with a maternal cousin.
Father was found and reported that he was homeless in Sacramento. He received social security for paranoid schizophrenia, and had been arrested for possession of drugs for sale while living with Mother. Father denied any domestic violence between himself and Mother.
On February 21, 2014, a petition was filed on behalf of T.M. pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). An amended petition was filed on April 23, 2014.
T.M. was formally detained at the February 24, 2014 detention hearing. Mother was provided with services and visitation pending the jurisdictional/dispositional hearing.
Mother continued to have regular contact with K.Y. K.Y. also had indirect contact with T.M. during telephone calls with Mother. Additionally, K.Y. continued to drive Mother to her scheduled supervised visits, despite DPSS's disapproval and DPSS providing Mother with bus passes.
The jurisdictional/dispositional hearing was held on June 2, 2014. At that time, the juvenile court found the allegations in the amended petition true and declared T.M. a dependent of the court. Mother and Father were provided with reunification services and supervised visitation.
By the six-month review hearing in December 2014, Mother reported that she intended on maintaining a relationship with K.Y. and that they were residing together in a two-bedroom apartment. Mother continued to deny and minimize the domestic violence and the abuse she suffered from K.Y., despite being observed with a black eye on two separate visits with T.M.
T.M. had nightmares about being abused by his mother and older brother which affected his ability to sleep. This caused him to be absent from school. He also experienced bouts of crying and feelings of depression. T.M. was referred for mental health services and participated in individual counseling.
Mother was scheduled to visit T.M. on a weekly basis. However, she "typically" cancelled visits or failed to visit on a consistent basis. Visits usually took place about once a month. Mother complained that traveling for visitation to the Temecula DPSS office was a hardship due to the cost of gas. On numerous occasions, DPSS offered to issue Mother a bus pass, but Mother stated she was unable to ride the bus due to health issues. T.M. enjoyed visiting with Mother, and indicated that he was upset with Mother for not visiting on a consistent basis. T.M. spoke with Father every week on the phone, and visited with Father in the caregiver's home.
At the December 3, 2014 six-month review hearing, the juvenile court continued services for an additional six months.
By the 12-month review hearing, Mother continued to live with K.Y. She was unemployed and K.Y. was supporting her financially. She continued to deny and minimize the domestic violence and abuse by K.Y., despite arriving at a March 31, 2015 visit with a large palm-sized bruise on her upper arm. Mother had positive tests for alcohol, but stated that they were not a big deal. The court ordered Mother to complete a substance abuse assessment. When Mother went to the substance abuse program for an assessment, she denied any alcohol use and tested negative that day. She refused to do any substance abuse treatment.
T.M. was diagnosed with chronic posttraumatic stress disorder (PTSD). He continued to have ongoing nightmares, disturbed sleep, and difficulty focusing on school. T.M. also exhibited anxiety, fear, sadness, and avoidant behavior. His therapist noted that T.M. continued to experience and exhibit significant PTSD due to child abuse. He also struggled with disrupted attachment, grief, and loss issues due to his removal from Mother. T.M.'s therapist also reported that T.M. received "little empathetic emotional support from his mother" during visits and telephone calls which contributed to T.M.'s difficulty in regulating his "affect and managing his fear, sadness, and anxiety."
Mother became more consistent with visitation but would cancel visits for various reasons. During visits, T.M. and Mother talked minimally, and T.M. usually played with toys or games in the room. T.M. did not appear happy to see Mother at the beginning of visits, nor did he appear sad or unhappy at the end of visits. Visitation with Mother just appeared to be a part of T.M.'s routine.
On May 13, 2015, Mother informed the social worker that she was no longer together with K.Y. Mother was living with K.Y.'s mother, and K.Y. had apparently moved to New Jersey. K.Y. later returned to California and was eventually incarcerated. It was later reported that Mother intended to marry K.Y. once he got out of prison.
The 12-month review hearing was held on June 29, 2015. At that time, the juvenile court terminated services and set a section 366.26 hearing. The court reduced parental visits to twice a month.
Parental visitation continued to be sporadic with numerous cancellations. Further, Mother reportedly had some inappropriate visits with T.M. At a visit on September 23, 2015, Mother began yelling and using profanity in front of T.M. causing him to have a "mental breakdown." He shook while having an anxiety attack because he thought he would be taken from his caretaker.
On June 29, 2015, DPSS received a referral regarding T.M.'s caretaker and her husband. It was reported that the adults in the home constantly used profanity towards T.M. and the caretakers had T.M. hold a small wading pool on his head while he was being sprayed with a water hose and the adults were cursing at him. The caretaker reported that they never left T.M. unsupervised and that they used discipline to correspond with the action. She denied physical abuse, but admitted the adults cursed, however, not at the children. T.M. stated that the caretaker never yelled at him, but would send him to his room. He also reported that the adults used bad words, but they would not use them toward the children. He confirmed that as punishment they made him hold up a small wading pool while he was in the big pool, but he denied anyone sprayed water at him.
On December 16, 2015, the caretaker reported that she planned to obtain a restraining order against her husband and she planned to divorce him. The caretaker's husband was arrested for domestic violence and the caretaker did not intend to go see him. An argument between them began over his yelling at the children. She reported that her husband had not used drugs before but his behavior had changed recently. The caretaker disclosed that she had been diagnosed with depression and anxiety, and was on medication and also took medical marijuana.
On January 13, 2016, a placement grievance hearing was held to discuss whether the relative caretaker should continue to be the primary caregiver. A witness reported a domestic violence incident between the caretaker and her husband in August 2015. During the incident, T.M. was fearful and he covered his ears to shield himself from the yelling. The witnesses described the caretaker's husband as an angry person. T.M. was ordered removed from his placement and placed with Mother's step-cousin and her boyfriend (the new caregivers) on February 25, 2016.
The new caregivers provided structure and consistency in T.M.'s life. They were committed to providing T.M. with stability and interested in adopting T.M. They bonded as a family, and were meeting T.M.'s emotional, educational, and developmental needs. T.M. reported that his frequent nightmares and night terrors reduced "tremendously." His bouts of crying and feelings of depression also reduced, and he continued to participate in therapy. T.M. stated that he felt safe and loved by his caregivers. T.M., however, voiced concerns about being adopted at that time, and reported that he wanted to stay with his current caregivers under a plan of legal guardianship. DPSS recommended a permanent plan of legal guardianship.
Mother visited T.M. on a monthly basis, and the visits were monitored by his new caregivers. Mother still brought K.Y. with her to visits, but he waited in the car during visitation. The new caregivers reported that the visits were appropriate and positive and that there were no concerns. Mother also occasionally "Facetime[d]" T.M.
At a June 27, 2016 hearing, DPSS informed the juvenile court that Father had recently passed away.
The contested section 366.26 hearing was held on November 30, 2016. At that time, the new caregivers were awarded legal guardianship of T.M. Mother was provided with reasonable visitation a minimum of one time per month to be supervised by a third party approved by the legal guardians. Mother was not to consume or possess alcohol or drugs, and visitation was to be denied if Mother appeared to be under the influence of alcohol or a controlled substance. The court ordered jurisdiction terminated after the guardianship was established with the relative caregivers.
Mother filed a timely notice of appeal on December 1, 2016. Letters of guardianship were filed on December 1, 2016.
III
DISCUSSION
Mother argues the juvenile court improperly delegated discretion to the legal guardian for Mother's visitation with T.M. She, therefore, requests this court remand the matter to the juvenile court with direction to reestablish jurisdiction and issue proper, specific visitation orders. DPSS responds that Mother failed to object to the order below and her counsel invited the error; therefore, DPSS argues Mother forfeited any complaint as to the order. In the alternative, DPSS maintains that Mother has not shown that the court improperly delegated its duties and responsibilities concerning visitation to the legal guardians.
At the section 366.26 hearing, the following colloquy occurred:
"[MOTHER'S COUNSEL]: Your Honor, just one more thing. We wanted to address the issue of visitation. It's my understanding that the prior order was visitation a minimum of one time per month between mom and [T.M]. We're asking that that order continue so that, if the caretakers are willing to provide more frequent visitation, that that could occur.
"THE COURT: Well, as indicated here, it's one time per year. The current caretakers who are in the back of the courtroom—I hate to spring it on them at this time, with respect to legal guardians—but one time per month, is that a feasible option?
"A VOICE: Yes, it is.
"THE COURT: All right.
"[MINOR'S COUNSEL]: Your Honor, my client has indicated in the past he did not want to be adopted. He did not want the parental rights terminated. He did want more visits in the past. I would be submitting to one time per month as opposed to one time per year.
"THE COURT: Okay.
"[MOTHER'S COUNSEL]: And that would be a minimum; correct; Your Honor?
"THE COURT: That's what I'm changing the order to right now. I'm affixing my initials to it and changing it to one time per month.
"[MOTHER'S COUNSEL]: Thank you.
"THE COURT: A minimum of one time per month. [¶] All right. The matter is submitted, then, to the Court."
Although it appears Mother forfeited the issue by failing to ask the juvenile court to specify the details of visits or by inviting the error, we will exercise our discretion to consider it. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) However, "application of the forfeiture rule is not automatic." (Ibid.) An issue may be raised on appeal if " 'it raises only a question of law and can be decided based on undisputed facts.' [Citations.]" (In re V.F. (2007) 157 Cal.App.4th 962, 968, superseded on other grounds, as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58.) Where, as here, "the facts are not disputed, the effect or legal significance of those facts is a question of law," which "is not automatically subject to the doctrine of forfeiture." (Ibid.) We therefore exercise our discretion to address Mother's contention. (See, e.g., In re M.R. (2005) 132 Cal.App.4th 269, 272 (M.R.) [exercising its discretion to address the visitation order despite the mother's failure to object to the order in the juvenile court].)
Mother complains that the visitation order is infirm because it failed to specify with certainty the frequency and duration of the visits with T.M. Mother believes the order effectively gave the legal guardians the authority to decide whether she would receive any visitation at all.
When legal guardianship is ordered, the dependency court must make an order for parental visitation, unless visitation would be detrimental. (§ 366.26, subd. (c)(4)(C); M.R., supra, 132 Cal.App.4th at p. 274.) The guardians must not be given absolute discretion to determine whether visitation will occur at all. (Id. at p. 274.) The power to determine the right and extent to visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to non-judicial officials or private parties. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 (Donnovan J.); see In re Chantal S. (1996) 13 Cal.4th 196, 213-214 [rule of non-delegation applies to exit orders issued when dependency jurisdiction is terminated].) Nonetheless, a visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) "[T]he frequency and length of visits are simply aspects of the time, place and manner of visitation." (Id. at p. 1376.) The delegation of these ministerial duties by the juvenile court does not affect the defined right of a parent to see his or her child, and does not infringe on the judicial function of ordering visitation. (Ibid.) Appellate courts have overturned visitation orders that delegate discretion to determine whether visitation will occur, as opposed to simply the management of the details. (In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314-1315 (Rebecca S.) [rejecting order which delegated authority to legal guardian discretion to decide frequency and duration of parent's visits with children]; In re Julie M. (1999) 69 Cal.App.4th 41, 51 [delegation to child]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 [same]; In re S.H. (2003) 111 Cal.App.4th 310, 317-320 (S.H.) [same]; Donnovan J., at pp. 1476-1478 [delegation to therapist].)
"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).) --------
The visitation schedule attached to the court's guardianship orders indicated that "Visitation between the minor; [T.M.], the mother . . . is as follows: [¶] Reasonable, not to be under the influence of alcohol or a controlled substance; shall be supervised by a third party approved by the legal guardian(s), the minimum of one time per month." Mother concedes the juvenile court specified the frequency to be at least once a month, but "gave full discretion to the guardians to decide the duration of the visits."
In the present matter, the juvenile court determined that Mother was entitled to have supervised visitation. When the juvenile court in a dependency case "orders visitation, it must also ensure that at least some visitation, at a minimum level determined by the court itself, will in fact occur." (S.H., supra, 111 Cal.App.4th at p. 313; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [order must ensure that some visitation will occur].) In the visitation order at issue here, the juvenile court described the frequency of visits at once per month. However, the juvenile court did not describe the duration of visits with sufficient specificity. The order gave the guardians guidance—at a minimum Mother was entitled to at least one visit a month for a "reasonable" duration. Although the guardians were family members, were cooperative of the order, and had already been monitoring visitation with no concerns, the visitation order did not describe the duration with sufficient specificity. Although the visitation order at issue assured that visits would take place once a month out of an abundance of caution, we believe a remand is necessary to allow the juvenile court to "make a new visitation order that specifies the frequency and duration of [Mother's] visits." (M.R., supra, 132 Cal.App.4th at pp. 274-275; see Rebecca S., supra, 181 Cal.App.4th at pp. 1314-1315 ["[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"; court thus reversed the visitation order and remanded the case with directions "to specify the frequency and duration of Father's visits"].)
IV
DISPOSITION
The portion of the November 30, 2016 order regarding Mother's visitation with T.M. is reversed, and the matter is remanded to the juvenile court to conduct a hearing on the issue of visitation consistent with this opinion. In all other respects, the November 30, 2016 order of the juvenile court is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.