In re H.R.

Filed 1/19/10 In re H.R. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from orders of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Referee. Dismissed as moot in part and affirmed in part.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal County Counsel.

________________

Robert R., the father of three-year-old H.R., appeals from the juvenile courts order denying his petition pursuant to Welfare and Institutions Code section 388^[1]to modify the courts previous orders limiting him to monitored visitation with his daughter and requiring him to participate in a drug treatment program. Robert R. also appeals from the courts order pursuant to section 362.4 terminating dependency jurisdiction and awarding sole physical custody of H.R. to her mother, E.F., to the extent that order also restricts Robert R. to monitored visits. We dismiss as moot the appeal from the order denying the section 388 petition and affirm the restriction on visitation included in the order terminating dependency jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

1. Overview of the Dependency Proceedings

a. The section 300 petition

In mid-July 2006 the Los Angeles County Department of Children and Family Services (Department) filed a dependency petition pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling), alleging that H.R.s mother, E.F., had a positive toxicology screen for cocaine three days before the childs birth and had a multi-year substance abuse problem that rendered her incapable of providing regular care for the child. The petition also alleged E.F.s three older children had been removed from her as a result of conditions caused by her drug abuse problem and E.F. had continued to use illegal drugs notwithstanding prior court orders to participate in substance abuse rehabilitation programs. As to Robert R., the petition alleged he had mental and emotional problems, including a diagnosis of schizophrenia, which rendered him unable to provide regular care for the child and further alleged, as amended by interlineation, Robert R. failed to take psychotropic medication as prescribed because of the side effects. The juvenile court sustained the petition as amended on August 21, 2006, set a contested disposition hearing to address whether E.F. was entitled to reunification services and ordered monitored visitation for both parents.

At the disposition hearing on September 26, 2006 the Department was directed to provide reunification services to both parents. Robert R. was ordered to attend parenting classes, obtain mental health counseling and treatment, submit to nine random drug tests and complete a drug treatment program if he failed or missed a test. Visitation for both parents remained monitored, but the Department was given discretion to liberalize visitation.

b. The review hearings

At the six-month review hearing ( 366.21, subd. (e)) in March 2007, the court found both parents in compliance with their case plans (as to Robert R. based on his statements to the court and the courts willingness to take him at his word) and ordered additional reunification services. The court noted that E.F. at this point had unmonitored visitation, including overnight and weekend visits with H.R., and directed the Department to consider further liberalization of visitation and to work with E.F. to investigate whether a home-of-parent-mother order would be appropriate. On June 4, 2007 the court terminated the suitable placement order as to H.R. and ordered her placed in E.F.s home under the supervision of the Department. The Department was directed to provide E.F. with family maintenance services.

At the 12-month review hearing ( 366.21, subd. (f)) in October 2007, Robert R. was found in partial compliance with the case plan; and a permanency planning hearing ( 366.22) as to Robert R. and a judicial review hearing pursuant to section 364 as to E.F. were set for January 16, 2008. Pending that hearing Robert R. was to be provided with further reunification services. Robert R.s visitation remained monitored.

The contested 18-month hearing as to Robert R. took place in March 2008. Although the court terminated reunification services for Robert R. because the maximum time for such services had elapsed, it encouraged his counsel to submit an appropriate section 388 petition for modification once all of the information regarding his compliance with the case plan and progress with therapy and medications was available. The court also directed the Department to consider liberalizing Robert R.s visitation based on the additional information and gave the Department discretion to do so. The home-of-parent-mother order was continued, and the Department was ordered to address termination of jurisdiction at the July 2008 review hearing if E.F. and H.R. no longer needed services. Robert R.s visitation remained monitored.

c. The section 388 petition for modification

Robert R. filed a section 388 petition on July 8, 2008. As new evidence or a change of circumstances, he alleged he was in substantial compliance with court-ordered counseling and had continued to test clean but for two missed tests for which father has excuses.^[2] Robert R. asked for a joint custody order or, in the alternative, unmonitored visitation with H.R., as well as an order that he did not have to complete a drug treatment program. Attached to the petition was a psychological evaluation completed in April 2008 by Dr. Dorothy M. Tucker of Families In New Directions (FIND), where Robert R. was receiving counseling services. On July 10, 2008 the court ordered the petition set for hearing on the issue of unmonitored visitation. The court also indicated it would consider terminating jurisdiction and issuing an appropriate family law exit order at the next judicial review hearing.

In an interview review report dated September 17, 2008 the Department opposed the requested change to unmonitored visitation due to ongoing concerns about fathers mental health status and recommended E.F. be granted sole physical custody of H.R. with the termination of dependency jurisdiction (with both parents having joint legal custody). The Department did not oppose vacating the order requiring participation in a drug treatment program, explaining that Robert R. would be better served by continued mental health treatment.

The contested section 388/judicial review hearing was continued several times. On December 2, 2008 the court indicated it intended to issue a final order terminating the case with a visitation order for Robert R. On January 9, 2009 the court continued the hearing to March 3, 2009 to allow Dr. Tucker to be present to testify. Over the Departments objection the court also permitted Robert R. to have one unmonitored day visit per week, not to exceed two hours and to take place in a public setting.

d. The juvenile courts orders denying the petition for modification and terminating its jurisdiction

On March 3, 2009 the court denied the section 388 petition, terminated its jurisdiction and issued a section 362.4 exit order granting sole physical custody to E.F. and joint legal custody of H.R. to E.F. and Robert R. The order, which indicates Robert R. needs further progress with his mental health counseling, permits him reasonable, supervised visitation, but provides E.F. may allow unmonitored visitation.

2. Robert R.s Mental and Emotional Health and the Issue of Monitored Visitation

In its July 2006 detention report the Department described Robert R., who had been identified by E.F. as the father of H.R., as becoming very angry and confused when the childrens social worker (CSW) attempted to interview him at the hospital following the childs birth. Robert R. was later escorted out of the hospital by security at E.F.s request. In a subsequent interview Robert R. stated he had mental health issues, had been diagnosed with schizophrenia and acknowledged he was not taking his prescribed medication.

A criminal background check, summarized in the Departments August 2006 jurisdiction/disposition report, indicated Robert R. had a criminal history that included convictions for robbery, weapons possession charges and possession of a controlled substance. In that same report the Department quoted E.F. as describing Robert R.s behavior as erratic: He is paranoid kind of severely. . . He talks to himself and argues with himself. . . . E.F. stated she did not want H.R. around that type of behavior.

Following the September 26, 2006 order for reunification services, in telephone conversations with the CSW assigned to the case Robert R. became agitated very quickly, raised his voice and expressed his thoughts in an irrational and disconnected manner. During initial visits with H.R. that were monitored by H.R.s foster mother, Robert R. made comments and accusations that caused the foster mother to feel uncomfortable and was again observed to become easily agitated. In subsequent visits monitored by social workers and services aides Robert R. was often upset and frequently became confrontational when problems or difficulties arose.

The Departments June 18, 2007 interim review report attached a March 9, 2007 letter from Dr. Tucker, providing an update on Robert R.s evaluation and therapeutic plan based on his participation in a parenting group at FIND. Dr. Tuckers letter stated Robert R. takes initiatives, follows through and explores comfortable and uncomfortable situations and challenges. This behavior differs from the testing profile depiction, which portrays him as unreliable, irresponsible, has planning difficulties and little regard for social standards. [] While he occasionally expresses resent[ment] of rules and regulations, he abides by them. Dr. Tucker also reported, Any agitation and dissatisfaction is related to external restrictions, dissatisfaction with his current life situation, and ambivalence about institutions that influence his life and his ability to make decisions. [] . . . Systems interventions and prior experiences cause him to over-question, want to shut down and be less trusting. The letter concluded by indicating Robert R. was progressing well in his treatment plan and his [p]rognosis for psychological intervention is generally good.

The status review report for the 12-month hearing originally scheduled for September 2007 indicated E.F. had to end several of Robert R.s visits with H.R. early because of his confrontational behavior (apparently primarily directed to the Departments female employees with whom he had contact). The interim review report prepared for the continued 12-month review hearing the following month included E.F.s continued concerns about Robert R.s irrational behavior. E.F. told the CSW she did not object to Robert R.s involvement in H.R.s life, but said she was fearful of having [H.R.] alone with father if he becomes too agitated. Mother said she does not believe father would harm [H.R.] deliberately, but worries about [H.R.s] safety should father have an altercation with someone if [H.R.] was with him alone.

During monitored visits that took place before the 18-month review hearing, Robert R. acted appropriately and interacted well with H.R. Dr. Tucker informed the CSW she was working with Robert R. to better manage his anxiety and believed they were making progress in that regard. On January 15, 2008 Dr. Tucker provided a progress letter stating Robert R. was participating in individual therapy sessions at FIND and has shown improvement in parenting and his interpersonal skills. Addressing the issues of overly aggressive behavior repeatedly raised by the Department, Dr. Tucker wrote, While he occasionally expresses resentfulness of rules and regulations, he abides by them. When he feels the rules do not meet the standard of explanations and recommendations, he becomes anxious, feels victimized, and may strongly demand more information. She also observed, Any agitation and dissatisfaction related to external restrictions, and institutions that influence his life and his ability to make decisions tend to impact his thoughts and emotions.

Although evaluations of Robert R. were apparently performed by two different psychiatrists (Dr. Haffar and Dr. King), no psychiatric report was ever presented to the juvenile court. (Information provided to the court indicated the first psychiatrist, Dr. Haffar, refused to prepare a report; no reason was given. No explanation was proffered for the absence of the second psychiatrists report; to the contrary, Dr. Tucker assured the court she would obtain it and provide it to the court.) Nonetheless, in March 2008 Dr. Tucker informed the court Robert R. had met with a psychiatrist five times and was now taking Abilify (used in the treatment of schizophrenia and manic and mixed episodes associated with bipolar disorder and as an add-on treatment to antidepressants for major depressive disorder).

As discussed, attached to Robert R.s section 388 petition filed July 8, 2008 was Dr. Tuckers most recent psychological evaluation of him, apparently completed in late April 2008.^[3] Dr. Tucker reported Robert R.s current stressors include not having his children live with him, a recent move, legal/financial concerns due to work availability and trying to gain legal custody of his daughter. Robert R. self-reported that, during these stressful times, while he is watching television, voices begin to portray some of the things he has done. In addition, she reported Robert R.s MMPI-2 [Minnesota Multiphasic Personality Inventory-2] suggests he is somewhat immature and impulsive, a risk-taker who may do things others do not approve of . . . generally oriented toward thrill-seeking and self-gratification. He may occasionally show bad judgment and a tendency to be somewhat self-centered, pleasure-oriented, and narcissistic.

Dr. Tucker stated Robert R. had been diagnosed with a Major Depressive Disorder with Psychosis. A subsequent diagnosis was R/O Schizoaffective Disorder. He has been prescribed Abilify . . . . He is taking his medication and is progressing well. The medication helps with his anxious feelings and reduces his stress. She indicated Robert R. would benefit from an extended modified visitation plan and stated he is making strides in understanding rules and regulations, areas at times that present challenges for him.

The Department took issue with Dr. Tuckers positive evaluation of Robert R. and her recommendation for more liberalized visitation. In its September 17, 2008 report the Department stated Robert R. continued to be irrational and argumentative with Department staff and with personnel from the agency that monitored his visits with H.R. The report continued, Father is easily agitated and at that time he becomes irrational and has difficulty expressing himself. Fathers inability to control his emotions in public when he is irritated could place [H.R.] in jeopardy of harm. No one is able to predict fathers reaction to any event that he views as imposing on his rights. The CSW reported she had discussed this concern with Robert R., who admitted he does become frustrated and acts out when he feels he has been done wrong.

A specific instance of the acting out behavior that concerned the CSW was described in the Departments report for the next hearing date: Robert R. apparently called E.F., told her he had become involved in an altercation with a neighbor who had used his designated parking space and threatened the neighbor with physical violence (telling E.F. he was going to beat his ass).

In her January 2009 report to the court Dr. Tucker stated that Robert R. continued to participate in individual therapy and parenting consultation at FIND and reiterated that his current (and correct) diagnosis was major depressive disorder, not schizophrenia. Dr. Tucker described Robert R. as compliant, reliable, flexible, and open to learning and gaining in insight. She also repeated her prior descriptions of Roberts occasional resentfulness of rules and regulations, but stated he now tends not to feel anxious or victimized and applies new conflict management skills to engage in problem solving/resolution behavior. Dr. Tucker recommended joint custody and [e]xpanded and unmonitored visitation to continue the attachment and bonding process for the next 45-60 days. At the end of this period, an assessment for overnight visitation to occur.

At the hearing on March 3, 2009 Dr. Tucker testified that unmonitored and overnight visits with Robert R. would not pose a risk to H.R. She also testified that, in her opinion, although he had heard voices in the past, Robert R. was not having hallucinations or hearing voices at that time. The court asked Dr. Tucker about the altercation with the neighbor over the parking space (Robert R. had not previously reported the incident to Dr. Tucker). Dr. Tucker said she did not believe Robert R. would act the same way if H.R. were present.

As discussed, at the conclusion of this hearing the court denied Robert R.s petition to modify and terminated dependency jurisdiction with a family law exit order that maintained supervised visitation for Robert R., but gave E.F. discretion to allow unmonitored visitation when she believed it was appropriate to do so. Explaining its rulings, the court stated: I want Mr. R[.] to understand, and know that he has made substantial progress since he first came in here little over two years ago. And my only concern is, my major concern is the age of the child. If Im dealing with a five-or-six-year-old young girl, I wouldnt hesitate to allow him to have unmonitored visits. Im concerned because of her age to allow him to have unmonitored visits at this point would possibly put the child at risk . . . . Ive observed Mr. R[.] since this case came in, and watched him progress and, frankly, Im happy that hes doing what hes doing, and hes made substantial progress. He sees this psychologist on a weekly basis, and has tried to deal with his issues, and I think he is. I dont know if mother noticed, [E.F.] has noticed any difference, I certainly have . . . . And when I make these orders of monitored visits, if [E.F.] feels comfortable at a later time without any court intervention, she can allow him to have reasonable unmonitored visits, and eventually overnights when the child reaches school age. . . . And its just the age, and I keep harping back to it, but I think shes just at a tender age where I dont want to expose her to, expose you to the possibility of having an incident occur, and putting you at risk even though you think youre fine.

DISCUSSION

1. Governing Law and Standard of Review

a. Section 388

Section 388 provides for modification of prior juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the childs best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; see Cal. Rules of Court, rule 5.570(e).)^[4] It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)

Ordinarily, the juvenile courts decision concerning a section 388 petition is reviewed for an abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) We do not inquire whether substantial evidence would have supported a different order, nor do we reweigh the evidence and substitute our judgment for that of the juvenile court. (Ibid.)

b. Section 362.4

When the juvenile court terminates its jurisdiction over a dependent child prior to the child reaching the age of 18 years, the court may issue an order determining the custody of, or visitation with, the child. ( 362.4; see In re ChantalS. (1996) 13 Cal.4th 196, 203 [[w]hen the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court].) In making such a custody and visitation order, the juvenile court must look to the best interests of the child. (See In re John W. (1996) 41 Cal.App.4th 961, 972-973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 713.)

We normally review the juvenile courts decision to terminate dependency jurisdiction and to issue a custody (or exit) order pursuant to section 362.4 for abuse of discretion (In re Stephanie M., supra, 7 Cal.4th at p. 318) and may not disturb the order unless the court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. (Ibid.; see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 301.)

2. The Juvenile Courts Order Denying Robert R.s Section 388 Petition Is Moot in Light of the Courts Termination of Dependency Jurisdiction

As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot. (In re C.C. (2009) 172 Cal.App.4th 1481, 1488; In re Michelle M. (1992)8 Cal.App.4th 326, 330.) However, dismissal for mootness in such circumstances is not automatic, but must be decided on a case-by-case basis. (In re Kristin B. (1986) 187 Cal.App.3d 596, 605; see In re C.C., at p. 1488; In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) An issue is not moot if the purported error infects the outcome of subsequent proceedings. (In re Dylan T. (1998)65 Cal.App.4th 765, 769.)

Whether or not the juvenile court properly denied Robert R.s section 388 petition, the order he sought to modify has no continuing effect and no possibility of prejudice in subsequent family law proceedings. (See In re C.C., supra, 172 Cal.App.4th at p. 1489.) To be sure, Robert R.s visits with H.R. remain monitored (subject to E.F.s right to allow unmonitored contact when she deems it appropriate), but only because the section 362.4 family law exit order contains that limitation on Robert R.s visitation rights.^[5] Robert R. does not challenge the courts termination of jurisdiction or its order awarding sole physical custody of H.R. to her mother. Accordingly, the only question properly before usand the only issue as to which we could provide effective reliefis whether the juvenile court erred in concluding it was in H.R.s best interest to restrict Robert R.s visitation as part of its termination order.

3. The Juvenile Court Did Not Abuse Its Discretion in Limiting Robert R. to Monitored Visitation in Its Order Terminating Jurisdiction

H.R. was removed from Robert R.s custody following the jurisdiction and disposition hearings based on the juvenile courts findings, by clear and convincing evidence, that Robert R. had mental and emotional problems that rendered him unable to provide regular care for his daughter and that remaining in his custody placed H.R. at substantial risk of harm. (See 361, subd. (c).) At that time the court also concluded Robert R.s visitation with H.R. should be monitored (see 362.1, subd. (a)(1)(B) [no visitation order shall jeopardize the childs safety]; see also In re C.C., supra, 172 Cal.App.4th at p. 1491)a determination Robert R. has never challenged. Nonetheless, citing his progress during the two years the dependency proceedings were pending, as evidenced by the reports and testimony of his therapist, Dr. Tucker, as well as the lack of any inappropriate behavior during the limited unmonitored visitation he was permitted in January and February 2009, Robert R. argues the juvenile courts conclusion unmonitored visitation following termination of dependency jurisdiction would not be in H.R.s best interest constituted an abuse of discretion.

The juvenile court expressly recognized Robert R.s efforts to deal with his mental illness and acknowledged his progress in therapy. However, a consistent theme in Dr. Tuckers evaluations, the social workers reports and the concerns expressed by H.R.s mother, E.F., was that Robert R. still was resentful of rules and regulations and easily agitated by external restrictions and institutions that influence his life. Although Dr. Tucker testified to an improvement in Robert R.s anger-management and problem-solving skills, his frustration and resentment manifested itself throughout the course of the dependency proceedings by aggressive and confrontational behavior, particularly when his actions were questioned or criticized by women in positions of authority. In addition, Robert R.s limited improvements in controlling his behavior were made while he was consistently taking his prescribed medication; yet, as recognized in the findings of the juvenile court sustaining the original dependency petition, Robert R. had a history of discontinuing his medication when he found the side-effects uncomfortable.

Because of H.R.s age (she was not yet three years old when the court terminated dependency jurisdiction) and Robert R.s ongoing psychological and emotional issues, the court determined the risk to H.R. was simply too great to permit unsupervised visitation at this time. On this record we cannot say the juvenile courts conclusion exceeded the bounds of reason or was arbitrary, capricious or patently absurd. (See In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 300.)

DISPOSITION

The appeal from the order denying Robert R.s section 388 petition is dismissed as moot. The order terminating dependency jurisdiction, awarding joint legal custody of H.R. to Robert R. and E.F. but sole physical custody of H.R. to E.F. and restricting Robert R. to monitored visits is affirmed.

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] The actual number of missed tests and the adequacy of Robert R.s justification for missing them, as well as the explanation for several positive tests for opiates (codeine and morphine), although disputed in the juvenile court, were ultimately irrelevant to the courts rulings at issue in this appeal.

^[3] The report itself is dated February 1, 2008, but the body of the document indicates the evaluation process began on February 4, 2008 and ended on April 14, 2008. The facsimile transmission line at the top of the report shows a date of April 23, 2008.

^[4] Section 388 provides, Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .

^[5] Although the juvenile court on termination of dependency jurisdiction is authorized to require participation in counseling or treatment programs as a condition of custody or visitation (see In re Chantal S., supra, 13 Cal.4th at pp. 202-203), the exit order contains no reference to Robert R.s continued drug testing or participation in a drug treatment program, the other portion of the earlier order to which the section 388 petition was directed. Indeed, the juvenile court at the contested hearing on March 3, 2009 stated, Im not worried about the testing. Its not the tests. Rather, the court explained, the issue was whether H.R., then only two and one-half years old, would be at risk with unmonitored contact.