In re D.M.

Filed 12/11/08 In re D.M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge.

Hana Balfour, under appointment by the Court of Appeal, for Defendant and Appellant.

Janelle E. Kelley, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant C.M. challenges the juvenile court's ruling to not order visitation with her 16-year-old son, D.M., pending further evaluation by the minor's therapist, during the reunification period. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and P.M. were married and the parents of a son, D.M. (born 1991), and a daughter, T.M. (born 1998). The parents were very involved with the children, and provided for their needs and a stable home. At some point, however, the parents lost their home and moved the children from place to place, staying with friends or relatives. Both parents had substance abuse problems with methamphetamine and alcohol, and often left the children alone while they were using drugs. The parents subsequently separated and divorced.

In December 2005, appellant was arrested on a warrant for possession of a controlled substance, and charged with possession of paraphernalia. In January 2006, appellant was convicted of felony possession of a controlled substance and placed on probation. In March 2006 and April 2007, appellant was arrested on a warrant for possession of a controlled substance.

In May and June 2007, respondent, the Fresno County Department of Children and Family Services, received referrals of general neglect that the children were living with their father and his girlfriend in a dirty home, without adequate food, clothing, or care, the father was abusing drugs, and appellant was incarcerated. Respondent was unable to locate the family to confirm the referral. On or about September 2007, the father left both children with their maternal grandmother. The father did not have a job or income other than government assistance, and he did not provide any financial support for the children.

In November 2007, respondent received another referral, that the father was homeless, the grandmother lacked means to support the children, and they were not being cared for. D.M. was living with a family friend. Appellant had been incarcerated, but she was out of jail and homeless.

In December 2007, appellant and the father agreed to accept Voluntary Family Maintenance Services to address their substance abuse problems, domestic violence, and homelessness issues. However, the parents did not make themselves available to participate in the services. Respondent determined that both appellant and the father continued to be homeless, D.M. was living with a family friend, he had not attended school since October 2007, and he did not receive financial support from his parents.

On January 4, 2008, respondent received another referral of general neglect that appellant's whereabouts were unknown and she was believed to be homeless, and a family friend was trying to find relatives to take care of the children. On that date, appellant met with a social worker and admitted she had a history of abusing methamphetamine. She had been incarcerated and was on probation. Appellant stated she had already completed an inpatient drug program at West Care, and was currently in another drug program at Sierra Institute. Appellant admitted her drug problems contributed "to her lack of parent-to-child bonding and involvement, inability to properly parent and maintain a clean and safe house for the children. Her substance abuse issues have also [led] to [appellant] having unhealthy and unsafe associations/activities in her home which affects the safety of the children. In addition, there are domestic violence issues in her relationships with [the father]." Appellant did not have a job and was homeless.

"[Appellant's] homelessness, being divorced, having violent arguments with the father and not the primary care provider for the children is cause for chronic family stress, conflict and violence which severely impedes the children's sense of safety and security. [Appellant] does not appear to be able to control her anger, which results in limited positive interactions with the father and others, poor social skills and frequent conflict."

The children's father stated he drank alcohol to intoxication, and used marijuana, opiates, and methamphetamine. As a result, he lost his home, vehicle, boat, "and now he has lost his children." The father also had domestic violence issues with his current girlfriend and was unable to control his anger.

Also on January 4, 2008, respondent met with D.M. Respondent previously had been informed that D.M. was living with appellant, but D.M. reported that appellant lied about that fact, and he had not lived with his mother since she had been incarcerated. He was still living at a friend's house. D.M. said he knew his parents used drugs because "they act very different then [sic] what they use to, to where they do not care about anything. He stated that he has been on his own for the last couple of years ...." His father had seen him at the friend's house on a few occasions, but did not ask how he was doing or provide any financial support. D.M. stopped attending school "due to his parents not having a stable home for him to live at." D.M. said "he is tired of not having stability and that he wants to live with a relative."

Respondent substantiated this referral for general neglect because the parents continued to be homeless, did not cooperate with the voluntary services, did not address their substance abuse problems, and appellant's whereabouts were still unknown.

On January 4, 2008, D.M. was taken into protective custody and placed in foster care. T.M., who was nine years old, was living with relatives, who were in the process of obtaining a legal guardianship over her.

The petition

On January 8, 2008, a petition was filed in the Superior Court of Fresno County on behalf of D.M., alleging that he was within the meaning of Welfare and Institutions Code section 300, subdivision (b). It was alleged that D.M.'s parents had substance abuse problems that negatively affected their ability to provide D.M. with regular care, protection, and supervision. The parents were homeless, appellant's whereabouts were unknown, and they were unable to provide him with stable housing, food, clothing, and his educational needs.^[1]

On January 11, 2008, the detention hearing was held; the father appeared and the mother was not present. The court ordered reunification services, including substance abuse and domestic violence assessments, and random drug testing. The court also ordered reasonable, supervised visitation with both parents, and for respondent to assess D.M.'s possible placement with relatives.

On February 1, 2008, the jurisdiction hearing was held. Father's counsel was present. Appellant was on probation but could not be located. D.M. remained in foster placement. According to respondent's report, D.M. had a supervised visit with his father on January 15, 2008, and it was a positive visit. The father had enrolled in an inpatient drug program and domestic violence classes, but he walked out of both programs. The court found the petition's allegations true and provided for all prior orders to remain in effect.

The jurisdiction/disposition report

On February 22, 2008, a jurisdiction/disposition hearing was held. Appellant and counsel for the father were present. According to respondent's report, appellant was on felony probation for a drug offense. Both parents had been ordered to receive supervised visitation, but respondent could not arrange any visits because their whereabouts had been unknown.

Respondent's report stated T.M. was living with relatives. D.M. was still in foster care but relatives were being evaluated for placement. D.M. and T.M. did not wish to speak to their parents. D.M. was attending school and trying to catch up with his peers. D.M. was described as cooperative and with having a positive attitude, and that he knew "things will get better, despite the last couple of years." D.M. admitted he needed help with mental and emotional problems. He had smoked marijuana, and was angry about what and where his life was because of his parents' behavior. It was recommended that D.M. receive individual therapy. The court continued the matter for preparation of a new report as to appellant's status.

On March 21, 2008, respondent submitted a supplemental report. D.M. had been placed with relatives. Respondent reported that appellant met with the social worker on February 29, 2008, and said she was willing to complete any services ordered by the court. She provided documentation that she had completed a 90-day inpatient substance abuse treatment program in July 2007. She also completed a Proposition 36 aftercare program in February 2008, and provided documentation for her attendance of AA/NA meetings. She completed a domestic violence assessment and no further treatment was recommended, and she tested negative for drugs.

According to the report, both parents requested visitation with the children. Respondent's report stated:

"[B]oth children have stated to the undersigned that they do not want to visit with their parents at this time. The undersigned has asked of both children if they would be willing to write a letter to their parents explaining how they are doing with school, home, etc. Both the children agreed to write to their parents .... Both parents were very disappointed but stated that they understood."

Respondent's report included a letter from D.M.'s therapist, Parel Mathai, a senior licensed mental health clinician, who had seen D.M. in individual therapy for two months. The letter stated:

"Visitation with his parents has been an issue discussed between clinician and child. It appears memories of severe neglect by his parents, including homelessness, being bumped from place to place, deprivation of basic needs, not being sent to school, and exposure to fighting between the parents, are fresh in his mind. [D.M.] has been failed by parents many times in the past and is not prepared to experience his hopes raised and then dashed once again.

"It is the opinion of this clinician that the child is not ready to meet his parents. As time goes by and parents straighten out and stabilize their lives, it is possible later he will soften his stand. Since the best interest of the child and not of the parents is the crucial factor, no visitation with parents is recommended at this time."

On April 25, 2008, the court set the matter for a contested disposition hearing. The social worker stated both children did not want to visit their parents. The court issued an interim order suspending visitation between appellant and D.M. pending the contested hearing.

The contested hearing and the visitation order

On May 19, 2008, the court conducted the contested disposition hearing. Appellant and fathers counsel were present.

Eva Torres, the children's social worker, testified appellant had a lengthy history of alcohol and methamphetamine use. It was previously believed that appellant failed to comply with voluntary family maintenance services, but Torres learned appellant had been in a substance abuse residential treatment program. Appellant completed the substance abuse program in July 2007, including parenting classes, a domestic violence assessment, and random drug testing. Appellant reported she had obtained housing at a sober living facility but Torres had not confirmed that fact. Appellant had not obtained mental health counseling yet.

Torres testified appellant had not been in contact with either respondent or the children. Torres was concerned that appellant failed to maintain contact with respondent because they had "no idea what was going on at that time."

Torres testified appellant had been "out of the picture" and "in and out" of the children's lives for the past four years. T.M. really did not know appellant, she did not want to be with appellant, and she became very nervous when Torres spoke about her parents. Torres stated that she spoke to T.M. about visitation, and T.M. stated that she did not want to visit her parents and she had nightmares when Torres asked about visits. Torres testified that a sober living home was not an appropriate environment for a nine-year-old child. T.M. lacked stability for a long time, but she was very stable now, attending school again, and doing better. T.M. was receiving counseling on these issues so she could have contact with appellant.

Torres testified 16-year-old D.M. also felt appellant had been an absent parent, and he did not want to visit or have a relationship with his parents at this time. D.M. felt his parents had abandoned him, and repeatedly said he did not want to see them. D.M. was stable, doing "really well" in school, and trying to catch up.

Torres testified that the children did not emotionally trust appellant because of her inability to provide a stable home or have a relationship with them for the past four years. Both children felt "they're going to be betrayed again and abandoned by their mother."

D.M. testified at the hearing that he was doing well in high school and scheduled to graduate on time.^[2] He had been seeing a therapist for three months, and they discussed how he felt about his parents and his school progress. D.M. testified he did not want to return to his mother's care because she had not "taken care of us that much. She was out of our lives for a while, and I know she was in jail for a while." He could not remember the last time he saw her because it had been a while.

D.M. testified it had been three or four years since he lived with his parents. They had lived in Clovis for about 10 years, the family was pretty stable then, and D.M. went to school. However, his parents fought a lot, his mother drank, and both parents used crystal methamphetamine. After his parents separated, D.M. stayed with his father and his girlfriend and they moved around a lot. He only saw appellant "[e]very once in a while" and only "in passing," and there was "[n]o set schedule" to see her over the past three or four years. He knew appellant had been incarcerated at some point during that time. Appellant lived in an apartment after her release, and D.M. briefly stayed with her when his father threw him out. He didn't stay long and went back to stay with his father and his father's girlfriend.

D.M. testified that in October 2007, he briefly lived with T.M., their father, and their grandparents. He did not see appellant during that time. In December 2007, he was living with a friend, and appellant came by about five times.

D.M. testified he was not ready for visitation with appellant. He was not afraid of her, but he felt "like they've waited too long to do anything about a problem that has been happening for so long." He felt T.M. should not return to appellant's care because his sister had "real strong like feelings" about their parents, "and we can't even talk about them because she has nightmares for three nights every time we talk about them ...."

Appellant also testified at the hearing, and admitted she was convicted of possession of a controlled substance in January 2006, served five days in custody, and was still on probation for that offense. Appellant also admitted she was incarcerated "a couple times" for probation violations. Appellant testified she had completed a substance abuse program, domestic violence assessment, and parenting program. She did not have a mental assessment yet. She provided drug tests once a week and attended AA meetings. She completed community service and still owed some fines for her probation period.

Appellant testified she last lived with the children and their father in 2004. Thereafter, the parents separated but appellant still had visits with T.M. every other weekend before she entered the drug treatment program in April 2007. After she finished the drug treatment program, appellant had custody of T.M. for a couple of weeks in August 2007, while she was living with her mentor. T.M. never said she was afraid of her. Appellant admitted that in September 2007, she was out of compliance with probation as to testing and reporting her address.

Appellant testified she had contact with D.M. "every chance I got," and visited when he lived with the father. She admitted that she did not see D.M. as much as T.M. She last saw the children just before Christmas 2007, when they were staying with a relative. Appellant conceded it was "a little five-minute meeting."

Appellant admitted D.M. never lived with her in 2007, despite a previous statement to respondent on that issue. She did not know about the children's living conditions during most of 2007, she thought they were living with the father, and she never discussed the children's status with the father. She never talked with the children about where they were living or how they were doing.

Appellant believed she could help the children get over their fear of being abandoned by returning into their lives and being able to talk with them. "I'm not quite sure where it's coming from that they are afraid and all that because they never have before that all came about." D.M. had never been afraid of her, but she believed he had better things to do than visit his mother.

At the conclusion of the hearing, the court found D.M. within the meaning of Welfare and Institutions Code section 300, subdivision (b), adjudged him a dependent, and continued his placement with relatives. The court also found the petition's allegations true as to T.M. The court ordered the children were not to have visitation with their parents because it would be detrimental to them. As to both children, the court ordered respondent to continue to assess visitation. Respondent was also ordered to provide written input from D.M.'s therapist for the court to consider at the next hearing, as to whether the therapist believed there had been any change as to whether D.M. should have visitation with his parents.

Appellant objected to the visitation order because D.M. testified he was not afraid of his mother. Appellant argued visitation was a critical factor in reunification, and D.M. was just "not real interested in living with her and having contact, but that's not a reason to deny the visitation ...." The court replied: "[D.M. is] 16 years old and he wishes not to have any visits. And I think that was abundantly clear. And I think his testimony will lend further support in regards to [T.M.] and her emotional state in regards to contacts and visits with mother and father." Appellant countered that T.M.'s situation raised different issues, but visitation was critical as to her reunification with D.M.

The court agreed about the importance of visitation, but found D.M. was "of age that the court can take into consideration his wishes, and he does not wish to have visits with his mother. I have ordered [respondent] to obtain input from [D.M.'s] therapist." The court continued:

"This is a heart-breaking case. You know these children from all accounts the family lived together until 2004 and then for a variety of reasons, namely, the substance abuse issues between mother and father and domestic violence this family fell apart. That's heart breaking. It's heart breaking to see a young man come in here and testify about his parents and that they haven't been there for him."

The court was optimistic because the children were in therapy and doing well, but they had "an absolute right" to see their parents as stable and responsible. The court clarified the visitation order was "not forever and ever. It's an issue that the children are receiving their therapy, but parents need to show up and do what they need to do." The court acknowledged appellant was making progress "but one thing that was abundantly clear ... is mom needs to keep in contact with probation and with [respondent]." The court noted appellant failed to inform respondent and the probation department where she was living. The court ordered respondent to provide D.M.'s therapist with updated reports as to appellant's progress, and set the next hearings for June and July 2008.

DISCUSSION

Appellant contends there is insufficient evidence to support the court's order against any visitation with D.M. Appellant argues there is no evidence of detriment and D.M. admitted he was not afraid of his mother. Appellant also contends the court improperly vested D.M. and/or his therapist with the discretion as to whether visitation should occur.

"Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings. [Citation.] Visitation 'shall be as frequent as possible, consistent with the well-being of the child.' [Citation.] However, '[n]o visitation order shall jeopardize the safety of the child.' [Citation.] It is ordinarily improper to deny visitation absent a showing of detriment. [Citations.]" (In re Mark L. (2001) 94 Cal.App.4th 573, 580 (Mark L.).)

The court's decision on a visitation order is reviewed for substantial evidence. (Mark L., supra, 94 Cal.App.4th at p. 581 & fn. 5.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

"The court may deny a parent visitation only if visitation would be harmful to the child. [Citations.]" (In re S.H. (2003) 111 Cal.App.4th 310, 317 fn. 9 (S.H.).) "The focus of dependency law is on the well-being of the child," and the court may deny visitation by finding that forced contact between a parent and child may harm the child emotionally. (Mark L., supra, 94 Cal.App.4th at p. 581.)

"[A] parent's liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being. [Citation.] While visitation is a key element of reunification, the court must focus on the best interests of the children 'and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm specified in section 300.' [Citation.] This includes the 'possibility of adverse psychological consequences of an unwanted visit between mother and child.' [Citation.]" (In re Julie M. (1999) 69 Cal.App.4th 41, 50 (Julie M.).)

The juvenile court may not improperly delegate visitation decisions to a child's therapist. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 (Donnovan J.); In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 (Nicholas B.).) In Donnovan J., the court found the court's visitation order was an improper delegation of judicial power because the order "neither requires that the therapists manage visitation ordered by the court, nor sets criteria (such as satisfactory progress) to inform the therapists when visitation is appropriate. Instead it conditions visitation on the children's therapists' sole discretion. Under this order, the therapists, not the court, have unlimited discretion to decide whether visitation is appropriate. That is an improper delegation of judicial power." (Donnovan J., supra, 58 Cal.App.4th at pp. 1477-1478; cf. In re Chantal S. (1996) 13 Cal.4th 196, 213 [Supreme Court approves order requiring father's visitation be facilitated by the minors' therapist when satisfactory progress had been made by father].)

"Similarly, visitation may not be dictated solely by the child involved although the child's desires may be a dominant factor." (Nicholas B., supra, 88 Cal.App.4th at p. 1138.) "To provide the minor and/or his therapist with a veto power over this essential reunification service seems to us to undermine any hope of actual reunification. [Citation.]" (Id. at p. 1139.) For example, in Julie M., the court reversed a visitation order which required the children's consent. The court pointed to the importance of visits to family reunification, with the danger of children's fears and anxieties increasing the longer there was no contact with the mother. "[T]he ultimate supervision and control over this discretion must remain with the court, not social workers and therapists, and certainly not with the children. [Citations.]" (Julie M., supra, 69 Cal.App.4th at p. 51.)

In contrast, In re Danielle W. (1989) 207 Cal.App.3d 1227 (Danielle W.), the juvenile court granted visitation with the mother at the discretion of both the Department of Children's Services and the detained children, and the court stated it would not "'force'" the children to visit their mother if they did not want to. (Id. at p. 1233.) Danielle W. held the visitation order was valid and did not represent an improper delegation of judicial power. (Id. at p. 1237.) The order merely required the Department to take into account the children's wishes in connection with visitation and "[i]n the context of this case, this means the children should not be forced to visit with their mother against their will and in no way suggests that the minors are authorized to do more than express their desires in this regard." (Ibid.) Danielle W. recognized that a child's aversion to visiting an abusive parent may be a dominant factor in administering visitation, but an order which grants the governmental agency with complete and total discretion to determine visitation would be invalid. (Ibid.)

Thus, "the power to decide whether any visitation occurs belongs to the court alone. [Citations.] When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine. [Citation.] The discretion to determine whether any visitation occurs at all 'must remain with the court, not social workers and therapists, and certainly not with the children.' [Citations.]" (S.H., supra, 111 Cal.App.4th at pp. 317-318, italics in original, fns. omitted.) While visitation may not be dictated solely by the minor, the minor's desires regarding visitation may be a dominant factor in the court's visitation decision. (Nicholas B., supra, 88 Cal.App.4th at pp. 1138-1139; Julie M., supra, 69 Cal.App.4th at pp. 48-51; Danielle W., supra, 207 Cal.App.3d at pp. 1237-1238.)

In the instant case, the court carefully considered the testimony of the social worker, appellant, and D.M., and the reports from respondent and the therapist about D.M.'s wishes and emotional state, before it decided that visitation would be detrimental to D.M. at the time of the contested disposition hearing. While D.M. testified he was not afraid of appellant, the presence or absence of fear was not the critical issue in this case.^[3] Instead, D.M. had suffered emotionally from appellant's lack of stability, extensive drug use, homelessness, inability to care or demonstrate concern for his living conditions, and her complete inability to maintain contact for lengthy periods of time. The court's decision against visitation was based on the emotional turmoil and lack of trust D.M. had experienced for nearly four years, and is clearly supported by substantial evidence.

Appellant complains the court's decision was solely based on D.M.'s stated desires, and the therapist's letter was insufficient to establish that D.M. would suffer detriment from visiting his mother. Appellant complains the court failed to weigh the rights of both the parent and child in denying visitation, and instead gave "complete deference" to D.M.'s wishes.

Appellant's assertions are refuted by the entirety of the record. The court acknowledged appellant's progress but was concerned by her failure to advise respondent, the probation department, and her children as to her whereabouts for substantial periods of time. Moreover, the court did not vest discretion as to visitation with either respondent, D.M., or his therapist, and the court's decision was not based upon D.M.'s purported flippant statement that he just did not want to see his mother. Instead, the court was concerned about D.M.'s strong feelings of emotional betrayal, that neither appellant nor his father had been there for him, and the court found that D.M. had an absolute right to deal with stable and responsive parents. D.M.'s therapist did not render his opinion simply based on the minor's wishes, but based upon his opinion that D.M. was not ready to meet with either of his parents because of their prior neglect and emotional abandonment. The court also clarified that D.M. would continue to receive therapy to address these issues, the visitation order would be reconsidered at the next hearing, and the parents needed to comply with the reunification plan.

Based on the circumstances which existed at the time of the contested disposition hearing, the court's order denying visitation between appellant and D.M. is supported by substantial evidence that D.M. would suffer emotional detriment.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] A petition was also filed on behalf of appellant's nine-year-old daughter, T.M., who was still living with relatives. While T.M. is not part of the instant appeal, T.M.'s situation will be addressed where relevant because there were joint hearings and reports issued as to both children.

^[2]The court granted the request of D.M.'s attorney for the minor to testify outside appellant's presence because he was intimidated and afraid to testify in front of her.

^[3]While D.M. testified he was not afraid of appellant, he did not want to testify in front of her because he felt intimidated.