Opinion
C085076
02-05-2018
In re D.H., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. S.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD237101)
S.H., the (adoptive) mother of minor D.H., appeals from the juvenile court's order continuing the minor's out-of-home placement, terminating mother's reunification services, and issuing a no-contact order between mother and the minor. (Welf. & Inst. Code, §§ 366.21 & 395.)
Undesignated statutory references are to the Welfare and Institutions Code.
Mother's sole claim on appeal is that the juvenile court erred in issuing the no-contact order. Disagreeing, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 7, 2016, the Sacramento County Department of Health and Human Services (Department) filed a petition pursuant to section 300, subdivisions (c) and (g), alleging the teenaged minor (born in December 2002) suffered or was at substantial risk of suffering serious emotional damage and had been left with no provision for support and care. It was alleged that the minor, who had been diagnosed with oppositional defiant disorder, obsessive compulsive disorder, posttraumatic stress disorder, intermittent explosive disorder, conduct disorder, and bipolar disorder, displayed behaviors including violent aggression, assaultiveness, lack of impulse control, lying, biting, kicking, hitting, stealing, running away, spitting, throwing objects, attempting to kill mother, threats to do harm to mother, and attempts to harm himself. It was further alleged the minor had a lengthy history of mental health issues and, although he had received numerous mental health related services, his behaviors and mental health issues were beyond mother's ability to manage and prevented her from providing appropriate care.
On April 3, 2016, the minor ran away from mother. When found, he admitted he had hit, kicked, and bitten her and had tried to kill her twice. He was angry and sad. He was placed into protective custody (on a section 5150 hold) because he wanted to hurt mother. When mother was contacted to pick him up, she refused to take him home and stated she wanted to relinquish all parental responsibility because she believed the minor would kill her if he returned to her home.
At the April 12, 2016 detention hearing, the juvenile court ordered the minor detained and issued a discretionary visitation order.
According to the May 2016 report on jurisdiction and disposition, mother now wanted the minor returned to her care and custody. She reported he had a long history of violent and aggressive behavior, had made multiple threats on her life, had made multiple attempts to run away from home, and behaved in a very disruptive manner in school. She felt unsafe in her home when he became violent. She described three particular incidents of the minor's "rage events," stating they were becoming more common and had increased since his anxiety medication had been changed. Mother agreed the minor's behaviors and mental health issues might prevent her from providing appropriate care, but denied telling hospital staff she wanted to relinquish her parental rights or refused to pick up the minor from the hospital. She noted the hospital psychiatrist, Dr. Mehtani, had told her it was in the minor's best interest to be temporarily removed from the home. She claimed she had done and would continue to do her best to try to cope with the minor's behaviors, and denied she ever wanted to terminate parental rights.
At the June 2016 hearing on jurisdiction and disposition, the juvenile court sustained the allegations in the petition and found that the minor was a child described by section 300, subdivisions (c) and (g).
The addendum report filed in July 2016, opined that both the minor and mother would benefit from additional reunification services. Two addendum reports filed in August reported the minor was making progress managing his anger. Although the Department had initially recommended the minor be returned to mother, mother was unwilling to take him due to safety concerns. Ultimately, the Department recommended that the minor be adjudged a dependent and placed in out-of-home placement. At the disposition hearing held in August 2016, the juvenile court did so, ordering reunification services and visitation.
The report filed in February 2017 in anticipation of the six-month review hearing (§ 366.21, subd. (e)), recommended continued out-of-home placement for the minor and reunification services for mother. The social worker reported: "Unfortunately, at the time of this report, mother and son have not had contact since December 5, 2016." Since then, the minor had refused any opportunity to visit with mother, claiming "he did not want to be exposed to the negativity anymore." Mother remained afraid of being left alone with him.
The report did not specify whether the term "contact" included telephonic contact, but no reference to telephonic contact was made in the relevant portion of this report. --------
According to the report, mother and the minor originally had been visiting once a week at a park near mother's home. However, the quality of visits deteriorated and the minor began leaving the park during visits without permission. During her visits to the group home where the minor was living, mother reportedly was speaking and playing with other children while ignoring the minor. This caused the minor to become "highly upset" with mother and the other children, instigating conflict.
By February, the minor had reportedly settled into his group home's rules and routines, was less aggressive, and was able to separate himself from situations and individuals that trigger his outbursts. He was meeting with his therapist and other service providers once a week and his psychiatrist once a month. His behaviors were improving and he reportedly appeared to be happier and in better spirits.
The Department observed that although mother was actively participating in the reunification process, she either failed to engage with the minor or engaged with him in negative and harmful ways, with reported examples. Staff at the group home, WRAP team members, and his therapist all noted that the minor's most significant progress started when he stopped visiting with mother. The Department recommended continued out-of-home placement.
At the February 8, 2017 hearing, the juvenile court found return of the minor to mother's care would create a substantial risk of detriment and ordered continued reunification services to mother.
The permanency review report (§ 366.21, subd. (f)) filed May 26, 2017, recommended continued out-of-home placement of the minor and termination of mother's reunification services. The social worker reported that mother's counseling had been terminated because she told the counselor (as well as the social worker and others) that she no longer was interested in reunification. Conjoint counseling as recommended in the case plan had not been initiated due to mother's refusal to participate.
According to the May 26 report, after the February hearing the minor had agreed to resume visits with mother and weekly visits were arranged, but mother cancelled every visit (for nearly three months). The group home finally removed the visits from the minor's schedule in April 2017. When the social worker arranged a visit in May 2017, at mother's request, she again cancelled. After that cancellation, and for the first time in approximately eight months, the minor left his group home without permission and when brought back threatened suicide and other self-harm due to mother's actions. The Department recommended that visitation not be ordered due to mother's statement that she "probably won't want [the minor] back," as well as the fact that mother's cancellation of visits was negatively affecting the minor's self-esteem, his willingness to groom himself, and his behaviors in placement and in school.
The report indicated that the minor had said mother was "too ill to care for him," and that she had informed him of such (although the report was not clear as to when she had told him this or how, in person or by telephone). The social worker reported that the minor wanted to be adopted by a different family.
The Department and staff concluded mother had not improved her attitude or mindset regarding her poor perception of the minor, remained resistant to progress, and made "zero efforts" to advance her relationship with the minor by refusing to participate in conjoint counseling or visitation and refusing to acknowledge any positive changes made by the minor. The report noted that, despite "the mother's [i]ndividual [c]ounseling, as well as the support and encouragement offered to her from [the minor's] WRAP team and group home staff, she has remained firm in her negative outlook of [the minor] and his potential."
The report reiterated that, according to the minor's therapist, group home staff, and WRAP team members, the minor's most significant progress began when he refused visits with mother. When the social worker contacted mother to verify that she was indeed serious about not proceeding with parenting the minor, mother stated she did not want to reunify with the minor and would not be attending the upcoming hearing. She also declined an invitation to meet with staff before the upcoming hearing to disclose her decision not to reunify so as to refrain from blindsiding the minor.
Mother later claimed she did not know the disclosure meeting was taking place or that the minor had been informed of her decision not to reunify until the minor called her crying. Noting that mother's access to the minor had only caused him "emotional distress and harm," the report clarified that this distress was also caused by telephonic contact between the two. The Department recommended all contact between the two be "suspended" for the minor's emotional well-being, and asked for a no-contact order between mother and the minor at the June 28, 2017 permanency review hearing. Mother objected to the no-contact order and to termination of reunification services, as did counsel for the minor.
As relevant to mother's claim on appeal, the juvenile court observed that it "at this time has . . . in front of it only evidence that supports the request by the Department to find that continued visitation and contact with [mother] is detrimental to the minor. So I'm going to make that finding at this time. I realize the argument of Counsel [is] that [] should not happen. . . . But the evidence from the child's service provider, the therapist through the River Oaks Center for Children, the group home staff, and the WRAP team noted that [the minor's] behaviors excelled during the time period that contact had stopped between he and his mother. Also noted that the Cottage manager noted that visitations do appear to be detrimental to the child, and the evidence contained at pages 10 and 11 [of the permanency review report] does support her opinion." The court added that as "to the order for no contact, I think the Department needs to continue to assess that and evaluate that" and observed that it was "hopeful that . . . we will get to a point where we are able to implement, re-implement, visitation sooner rather than later . . . . I think it just needs to be healthy and beneficial for both of them before it continues."
The juvenile court terminated reunification services to mother and found that, while adoption was set to be the appropriate permanent plan, there was no compelling reason to set a selection and implementation hearing. (§ 366.26.)
Mother filed a timely notice of appeal; she now challenges only the no-contact order and argues error only as to telephonic contact, not visitation.
DISCUSSION
Mother contends the juvenile court abused its discretion in issuing the no-contact order because (1) there is insufficient evidence to support the finding that telephone contact with mother would be detrimental to the minor, and (2) the court was obliged to make orders that would enable the minor to maintain relationships with individuals important to him. As we shall explain, the court did not err.
"No visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).) However, "[i]t is ordinarily improper to deny visitation absent a showing of detriment." (In re Mark L. (2001) 94 Cal.App.4th 573, 580; see § 366.21, subd. (h).) The standard for denying visitation after terminating reunification services, such as occurred in this case, is the familiar detriment standard. (See In re C.C. (2009) 172 Cal.App.4th 1481, 1491 ["A comparable standard governs the issue of parental visitation when reunification services are terminated. Although the legislative preference remains for continued parent-child visitation until the hearing for the selection and implementation of a permanent plan pursuant to section 366.26, such visitation may be terminated if the court finds 'that visitation would be detrimental to the child.' (§§ 366.21, subd. (h); 366.22. subd. (a), 3d par.).)"].)
We acknowledge the split in authority as to whether we review the order at issue, terminating contact between mother and the minor and finding detriment, for abuse of discretion or substantial evidence. (See In re T.M. (2016) 4 Cal.App.5th 1214, 1219 [explaining split of authority].) Here, we find the order proper under either standard. (See ibid.)
The juvenile court's finding that contact of any kind between the minor and mother was detrimental to the minor is adequately supported by the record and was not an abuse of discretion. As we have set forth ante, as of May 2017 mother had consistently upset the minor when she did visit him, such that he refused to visit with her from the beginning of December 2016 through February 2017. After he indicated that he wanted to resume visits with her, she cancelled them all, which also upset him. This was a young man with a number of emotional conditions and many issues to work through, who had been improving since removal from mother. Although the record is not well developed regarding the frequency of telephonic contact between the two, what little evidence there is in the record indicated that telephonic contact between mother and the minor was disruptive to him as well.
The May 26 report indicated that due to mother's "inappropriate communication with [the minor] via telephone," the Department had to remind the group home to ensure that telephone contact between mother and the minor was supervised and appropriate. The Department concluded the minor suffered emotional distress after each encounter with mother, including telephone contact, which negatively influenced his self-esteem, self-worth, self-care, motivation, and progress in placement and in school. According to all the minor's treatment providers, the minor's most significant progress began when he refused visits with mother. He was reportedly happier and better behaved without contact with his mother, not merely without visits.
Mother argues that the social worker's report that telephone contact caused the minor emotional distress was in and of itself insufficient to demonstrate detriment because it was devoid of any examples or further explanation. First, we note (as does the Department in its briefing) that mother did not object to the sufficiency of the assessment report at the permanency hearing and is thus precluded from raising the issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) In any event, the juvenile court was entitled to find the assessment of the social worker credible and sufficient, particularly where, as the court noted at the hearing and as we detailed ante, there was no evidence before the court refuting or countering the social worker's assessment. The cumulative evidence from the social worker's report, which included assessments of the social worker as well as those of both mother's and the minor's service providers, was sufficient to support the court's conclusion that any contact between mother and the minor would be detrimental to the minor.
Relying primarily on S.W. v. Superior Court (2009) 174 Cal.App.4th 277, mother argues the juvenile court should have considered telephone contact and in-person visitation separately in finding detriment for purposes of the no-contact order. In S.W., the appellate court concluded section 366.21, subdivision (e) requires that "[t]he parent must both contact and visit the child to receive additional reunification services and a further review hearing. Rephrased in logically equivalent terms, the failure either to contact or visit the child allows the court to terminate services." (S.W., at p. 282.) But S.W. does not stand for the proposition that a juvenile court must make separate determinations regarding whether in-person contact, telephone contact, or some other form of contact is appropriate. Rather, it addresses the requirements a parent must meet in order to receive additional reunification services. That issue is not before us; unlike the parent in S.W., mother is not challenging the termination of her reunification services or visitation.
Mother also claims her telephone contact with the minor occurred during a period when the minor was reportedly making significant progress and his decompensation occurred only when she canceled previously planned in-person visits, not when she and the minor spoke on the telephone. The portions of the permanency review report cited by mother in her briefing on this point do not support her claim, nor are we aware of any evidence in the record to support it. Similarly, her claim that she "spoke with the minor more regularly than the single instance of a phone call in S.W." is devoid of a citation to the record. We see in the record only the afore-mentioned references to a phone call the minor made (while crying) to mother regarding her decision not to reunify with him, and the general references to her inappropriate communication with him by telephone as well as in person.
Finally, mother argues the juvenile court issued the no-contact order without regard to its obligation under section 366.21, subdivision (h) to fashion an order that would enable the minor to maintain his relationship with mother. But that statute does not apply here; further, the child's best interests are paramount.
Section 366.21, subdivision (h) provides in relevant part that: "In any case in which the court orders that a hearing pursuant to Section 366 .26 shall be held, . . . [t]he court shall continue to permit the parent . . . to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, . . . who are important to the child, consistent with the child's best interests." Here, the juvenile court did not set a hearing pursuant to section 366.26, therefore the statute does not apply. Further, we can certainly infer that the court, having found contact with mother was detrimental to the minor, also found any order maintaining contact with mother was not consistent with the minor's best interests at the present time. Thus mother's argument fails to persuade.
We find the juvenile court's order that the Department "continue to assess . . . and evaluate" the no contact order and the court's "hope[] that . . . we will get to a point where we are able to implement, re-implement, visitation sooner rather than later" together signal a clear effort and intention "to ensure all parties will become emotionally prepared to engage in future visits and hopefully reunite eventually." (In re T.M, supra, 4 Cal.App.5th at p. 1221.) We conclude the juvenile court did not err in issuing the disputed order.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.