In re M.S.

Filed 5/22/07 In re M.S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Fresno County. John F. Vogt, Judge.

Janet H. Saalfield, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

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Samantha A. (mother) appeals after the juvenile court denied her Welfare and Institutions Code^[1]section 388 petition and established a plan of long-term foster care with respect to her two daughters. Mothers sole contention on appeal is that the juvenile court abused its discretion in purportedly ordering that visitation with her daughters was at the discretion of her daughters therapist. As we shall explain, we disagree and will affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2005, then seven-year-old M. and four-year-old Skylar were removed from mothers custody incident to her arrest for possession and sales of controlled substances. The Fresno County Department of Children and Family Services (Department) filed a dependency petition on the childrens behalf alleging their mothers drug use placed them at risk of harm. ( 300, subd. (b).)^[2]

At the June 2005 jurisdictional hearing, the court found the petitions allegations, which the parties had amended at the hearing, true, after mother submitted to the jurisdictional determination of the court. The dispositional hearing was originally scheduled for July 7, 2005. In the disposition report, the Department recommended that mother be ordered to participate in family reunification services. At the request of the girls counsel for a contested hearing, the court continued the dispositional hearing.

On August 31, 2005, the court gave the Department discretion to commence unsupervised visits between mother and the girls with the consent of the girls counsel. Prior to that order, mother had been receiving one supervised visit per week with M. and two supervised visits per week with Skylar. Visits were suspended, however, in November 2005, at the request of both the Department and the girls counsel, after the court found visitation detrimental to the girls based on mothers behavior.

The dispositional hearing was conducted as a contested hearing on December 7, 2005. Although the Department initially recommended mother receive reunification services, it now recommended she be denied services as she continued to test positive for controlled substances, did not appear to be benefiting from services, and the girls did not appear to benefit from visits with mother. The Department also recommended that Skylars presumed father, John M., be denied family reunification services due to his incarceration. The Department recommended the court set a permanency planning hearing. Mother submitted on the Departments recommendation, but requested a bonding study be performed, which the court ordered. The court adjudged the girls dependents, removed them from the custody of mother and John, denied reunification services to mother pursuant to section 361.5, subdivision (b)(13) and to John pursuant to section 361.5, subdivision (e)(1), and set the matter for a permanency planning hearing.^[3] The court ordered once per month visitation for mother, to be supervised by the girls therapist, as long as mother was testing clean and the visit was therapeutically advised.

After mothers counsel pointed out in a March 2006 hearing that she had not received visitation for the past three and a half months because the social worker failed to contact the therapist for approval, the court set a review hearing on visitation for April 12. At the April 12 hearing, the Departments counsel reported the therapist recommended mother not receive visits until the bonding study was completed. Mothers counsel submitted on that issue after pointing out that she did not like mother going into a bonding study without visits, but mother accepted the Departments recommendation since the bonding study was scheduled for April 20. Consequently, mothers counsel agreed with the court to leave the visitation order as it stood.

In the Departments report prepared for the July 19 permanency planning hearing, the Department recommended a permanent plan of long-term foster care because the social worker did not believe the girls were generally adoptable at that time, as they continued to struggle with ongoing behavioral problems which led to their second foster home placement in two months. The social worker stated in the report that on June 15, 2006, the girls therapist recommended visits with mother resume, and mother had been receiving Department supervised visits twice per month, which had taken place on June 28 and July 13. The social worker further stated that although the girls seemed to enjoy the time they spent with mother, following the July 13 visit, they made statements to their care provider that they would be returning to mother. The social worker noted that in the bonding study, the therapist concluded the girls shared a bond with mother and continuing that relationship would promote the girls well-being. The Department recommended in the report that visitation remain as therapeutically advised.

At the Departments request, the permanency planning hearing was continued so the Department could attempt to locate M.s alleged father. After the girls counsel requested in a subsequent hearing that mothers visitation be suspended because she was making inappropriate statements to the girls, the court set a review hearing regarding visitation for August 16, 2006. The Department prepared an addendum report for that hearing, which recommended mother be given one hour supervised visitation per month, to be supervised by the Department or the girls therapist. At the August 16 hearing, the juvenile court agreed with the Departments recommendation and adopted it.

On August 31, 2006, mother submitted a section 388 petition seeking reunification services and increased visitation. The court ultimately set a contested hearing for November 2, 2006 on both mothers section 388 petition and a section 388 petition filed by M.s alleged father, by which he sought custody of the girls as a non-offending, non-custodial parent. The hearing on the two petitions was ordered combined with the permanency planning hearing.

At the combined hearing held in November 2006, the girls therapist, Kerri Freeman, testified the girls suffer from severe attachment related disorders, including reactive attachment disorder, and are on medication for ADHD. The girls were moved to their current foster home placement three to four months before the hearing. In their prior placement, they engaged in behaviors that included harming themselves, each other, and animals, as well as being destructive, defiant and withdrawn. In their current placement, the girls behavior was improving to the point where they were no longer self-harming, and were not acting out or fighting as badly, and they were forming healthy friendships.

Freeman testified that when she completed the bonding study in June 2006, she believed it was not in the girls best interest to place them in an adoptive home because the girls displayed a very strong attachment to mother which would be detrimental to sever. By the time of the hearing, however, Freemans opinion had changed and she now believed the girls should be placed in long-term foster care with the hope of adoption. Freeman based her changed opinion on how well the girls were doing in their current foster home placement.

Over the past three months, Freeman had monitored three therapeutic visits between mother and the girls, the last of which occurred the week before the hearing, and testified the girls were happy to see their mother and there appeared to be an attachment between them. Nevertheless, Freeman did not believe it would be in the girls best interest to continue visits with mother if they move[d] in the direction of adoption because if they were adopted, the relationship with mother would be severed, and since the girls were not requesting a relationship with mother as much as they were in their prior foster home placement, it would be okay at this time to stop visitation. Freeman did not believe the attachment between mother and the girls was as healthy as she once believed it to be, since after being placed in the new foster care home, the girls were not asking for their mother anymore, they were not as curious about her, and M. had stated she was concerned about mothers stability.

After receiving all of the evidence, the Departments counsel told the court that with respect to the girls permanent plan, it was asking the court to follow the requested findings and orders set forth in the July 2006 report, which included a permanent plan of long-term foster care, and [w]ere asking the court to not order visits for mother or -- until therapeutically advised, to not order visits for Mr. M[.] until therapeutically advised, and the same with [M.s alleged father]. Were asking the therapist to be the gatekeeper on that issue so -- The court then allowed the parties to make closing arguments. Mothers counsel requested the court provide mother with reunification services, but if the court ordered long-term foster care, she asked that mother receive more visits with the girls, which the therapist could supervise. The Departments counsel asked the court not to order visitation for mother, but if it did, it would be discretional to allow supervised visits as therapeutically advised. The girls counsel argued there should be visits with mother as therapeutically advised. Mothers counsel responded that she would submit it on the fact that [mother] have therapeutic sessions with the children along with Ms. Freeman, have the children and Ms. Freeman and [mother], and so we would submit it in that regard. She also argued for increased visitation and requested mother be allowed to have visitation with Ms. Freeman, be it supervised or not.

The court took the matter under submission. At a subsequent hearing on November 21, 2006, the court issued its decision. The court denied mothers section 388 petition, as well as M.s alleged fathers petition, although it found him to be M.s presumed father. The court adopted long-term foster care as the permanent plan with the permanency goal of a less restrictive foster placement. With respect to visitation for mother, the court stated that the visitation orders, as I understand it, are as therapeutically advised and shall remain in full force and effect. The minute order states that visitation between the girls and mother shall be reasonable [as arranged by DSS] as therapeutically advised.

DISCUSSION

Mother contends the visitation order entered at the November 21, 2006, hearing that ordered reasonable visitation as therapeutically advised was an unlawful delegation of the courts exclusive authority and responsibility to determine parent-child visitation because it gives a private therapist discretion over whether visitation will occur, citing In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.) and In re Donnovan J. (1997) 58 Cal.App.4th 1474 (Donnovan J.). We disagree.

As a threshold matter, we address the Departments contention that mother forfeited her right to assert this error by failing to object to the as therapeutically advised condition of the visitation order in the juvenile court. It is true, as the Department contends, that 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. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, where they may be corrected. (Id. at p. 590.) Dependency matters are not exempt from this rule. (See, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [failure to request court to order bonding study]; In re Kevin S. (1996) 41 Cal.App. 4th 882, 885-886 [failure to challenge the setting of a permanency planning hearing when court determined that no reasonable reunification efforts were made].)

We do not agree with the Department, however, that mother failed to object to the as therapeutically advised condition. At issue at the permanency planning hearing was whether mother would receive visitation and the conditions of that visitation. The Departments counsel argued that mother should not receive any visitation, but if visitation was ordered, it should be as therapeutically advised. The girls counsel argued mother should have visitation as therapeutically advised. In response, mothers counsel requested increased visitation, which she agreed could be supervised by the therapist. The court then ordered reasonable visitation as therapeutically advised. In our view, mothers request for supervised visitation was sufficient to preserve the issue of the propriety of the as therapeutically advised portion of the visitation order, since she requested an order different from the one the court ultimately issued.

Turning to the merits of mothers argument, the trial court did not abuse its discretion by ordering that visitation should be as therapeutically advised. The superior court, sitting in dependency cases such as this, has the power and responsibility to regulate visitation between dependent children and their parents. [Citations.] To satisfy this responsibility, a court must define the rights of the parties to visitation. [Citation.] The court may delegate ministerial tasks of overseeing the right [to visitation] as defined by the court to a child protective services agency. [Citation.] Within guidelines established by the court, the child protective services agency may exercise flexibility in managing the visitation. [Citations.] (Donnovan J., supra, 58 Cal.App.4th at p. 1476.)

The evil that juvenile courts must avoid when making visitation orders is the improper delegation, to an entity that is neither the court itself nor an arm of the court, of the power to determine whether or not visitation will take place. Thus, it is error to make an order leaving the granting of any visitation at all to a private therapist. (Donnovan J., supra, 58 Cal.App.4th at p. 1477 [visitation order that simply stated Father has no visitation rights without permission of minors therapists was reversed as improper because it neither required the therapists to manage ordered visitation, nor did it set any criteria (such as satisfactory progress) to inform the therapists when visitation was appropriate, and gave them unlimited discretion to decide whether visitation is appropriate].) Similarly, it is error to allow a child to control whether visitation occurs. (See Hunter S., supra, 142 Cal.App.4th at p. 1505 [court improperly delegated to child unlimited discretion to control whether visitation occurred when court issued order granting monitored visitation as can be arranged and therapists gave child virtually complete discretion to veto visitation with his mother].)

On the other hand, granting the Department such power may be acceptable, because of its role as an arm of the juvenile court. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374-1376 (Moriah T.) [juvenile court delegated to county social worker the responsibility to manage details of visitation such as the time, place, and manner thereof, but did not delegate absolute discretion to determine whether any visitation shall occur; order affirmed; appellate court stressed that limited delegation was to a public entity statutorily bound to act as a cooperative arm of the juvenile court]; accord, In re Jennifer G. (1990) 221 Cal.App.3d 752, 756-757 (Jennifer G.).)

The bottom line is that if a visitation order sets parameters within which to organize visitation, then someone more directly involved, on a current level, with supervising the parents and childrens progress with dependency-related issues may make some decisions related to when (not if) visitation should occur. Thus, for example, a therapist may be allowed to determine when, but not if, court-ordered visitation should begin. (In re Chantal S. (1996) 13 Cal.4th 196, 213-214 (Chantal S.) [order vesting some discretion, in a therapist of parents choice, to determine when parent had made satisfactory progress so that the ordered visitation could begin was proper].)

Here, the order in question provides that mother shall receive reasonable visitation [as arranged by DSS] as therapeutically advised. By this language, the court ordered mother receive (1) reasonable visitation, (2) to be arranged by the Department, and (3) as therapeutically advised. The order does not state that mother will not receive visitation without the therapists permission, as did the order in Donnovan J., neither does it state that she is entitled to visitation as can be arranged[,] as did the order in Hunter S. Instead, the order grants mother reasonable visitation to be arranged by the Department, which is a permissible delegation of authority to the Department. We have repeatedly held that the visitation order need not specify the frequency and length of visits. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009, citing In re Albert B. (1989) 215 Cal.App.3d 361, 384-385.) Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine. (In re Christopher H., supra, 50 Cal.App.4th at p. 1009; see also Moriah T., supra, 23 Cal.App.4th at pp. 1375-1377 [visitation order granting regular visits at the discretion of child protective services as to time, place, and manner, provided adequate guidelines for CPS to administer the details of the visitation order].)

By adding the term as therapeutically advised[,] the court was merely stating that the therapist would have input into the time, place and manner of visitation, and did not leave it to the therapist to determine if visitation should begin. Mother implicitly acknowledged that therapeutic input into the visitation process was appropriate by conceding in her argument to the juvenile court that the therapist could supervise visitation. Neither does she challenge the need for therapeutic input on appeal. Since the order does not specify that visitation will not begin until the therapist permits it, the order did not improperly delegate judicial authority to the therapist and was proper under Chantal S., supra, 13 Cal.4th at pp. 213-214.

Mother contends that despite the orders language, the court actually intended to delegate to the therapist full authority over whether visitation would occur. In support of her assertion, she points to a statement the Departments counsel made to the court prior to closing arguments, in which he stated the Department was asking the court to not order visits for mother until therapeutically advised. Mothers reliance on this statement, however, is misplaced, as the court did not adopt the order the Department requested. Instead, its order states that mother shall have reasonable visitation as therapeutically advised. The order does not deny visits until the therapist allows them. That the court did not grant the order the Department requested shows the court intended the order to be different than the one the Department sought.

Mother asserts that the courts order granted visitation in theory but none was permitted in reality, citing Hunter S., supra, 142 Cal.App.4th at p. 1505. Mother reasons thatbased on the Departments argument that the therapist should be the gatekeeper regarding visitation, the court was well aware the Department would interpret this order as giving the therapist carte blanche to deny visitation, and as the therapist had made it clear to the court in her testimony that she had no intention of permitting visits since she believed that the children should be adopted[,] the court created an order that appeared to provide for visitation, but actually left it entirely up to the therapist to deny visits altogether.

This argument fails for the simple reason that the therapist never testified she had no intention of permitting visits. Instead, the therapist testified that she believed the girls should be placed in long-term foster care with the hope of adoption, and if that was the plan, she did not think continued visits with mother was in the girls best interests because the girls relationship with their mother would be severed anyway by the adoption. The plan the court ordered, however, was not for adoption, but instead was for long-term foster care with the permanency goal of a less restrictive foster care placement. Nothing in the therapists testimony suggests the therapist would not follow the courts order for reasonable visitation given the plan the court adopted. To conclude that the therapist would not do so would require pure speculation. Should the therapist refuse to comply with the courts order, mother has the right to petition to modify or enforce the visitation order. (See Jennifer G., supra, 221 Cal.App.3d at p. 757; Chantal S., supra, 13 Cal.4th at pp. 213-214.)

DISPOSITION

The courts order regarding visitation is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Wiseman, J.

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^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]According to the detention report, M. and Skylar previously had been the subject of dependency proceedings after Skylar tested positive for methamphetamine at birth. Mother received reunification services and was reunited with the girls in October 2002.

^[3]M.s alleged father, Vincent S., previously had been denied reunification services pursuant to section 361.5, subdivision (a), as he was an alleged father.