Filed 2/27/12 In re T.R. CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
In re T.R., a Person Coming
Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
MICHELLE R.,
Defendant and
Appellant.
F062171
(Super.
Ct. No. 09CEJ300084)
APPEAL
from a judgment of the Superior Court
of
County. Jane A.
Cardoza, Judge.
Karen
Elcaness, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kevin
Briggs, County Counsel,
and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Michelle R. (mother) appeals from the exit order the
juvenile court made when terminating jurisdiction over her daughter, T.R. Mother contends that the court prejudicially
abused its discretion by (1) granting the father sole
visitation, (2) allowing father to supervise telephone contact between mother
and the minor, and (3) allowing father to be “around” alcohol drinkers with the
minor. Finding no abuse of discretion,
we affirm the order.
BACKGROUND
Thirteen-month-old
T.R. came to the attention of child
protective services (CPS) in April of 2009 when mother brought her to a
police station for help after mother had used methamphetamine. According to mother, she could not give the
child to father because of an existing restraining order against him due to
ongoing domestic violence.
The
Family Services (the department) filed a Welfare and Institutions Code
section 300
title="">[1] petition alleging that mother had a substance
abuse problem, mental health issues, and that T.R. was at risk of harm because
mother had exposed her to domestic violence from father. The petition alleged that father had also
exposed T.R. to substantial risk of physical harm due to domestic
violence. The petition also alleged that
mother had lost custody of two other children on the East Coast due to juvenile
court intervention. In May of 2009,
mother attended a mediation with the department and thereafter submitted to the
petition on the social worker’s report.
The report
prepared in anticipation of jurisdiction stated that father admitted being
arrested twice for domestic violence and twice for driving under the
influence. He was on probation for a
driving under the influence conviction suffered in 2007 and would complete
probation in April of 2010. He had a
criminal history dating back to 1995.
Mother had spent time in prison for conspiracy to
manufacture/transport/sell a controlled substance in New
Hampshire. She
had had contact with law enforcement for domestic violence, mental instability,
and narcotic offenses and activity, but she had not been convicted of a crime
in California. The substance abuse assessment for father
found he “minimized his [a]lcohol use,” and the department recommended that he
complete an intensive outpatient substance abuse treatment program.
At the
court found T.R. to be a person described under section 300, subdivision (b),
made her a dependent of the court under section 360, subdivision (d), removed
her from the custody of her parents, and placed her in foster care. Services were ordered for both parents,
evaluation and recommended treatment, and drug testing. Mother was to submit to a psychological
evaluation to assess her ability to benefit from services.
neither was to visit if under the influence of drugs or alcohol. The department was given discretion to allow
father unsupervised visitation, which it did beginning in November of 2009.
At the
six-month review hearing in March of 2010, the department recommended continued
reunification services for both parents, as they were generally compliant with
their respective service plans. After
father tested positive for alcohol on three separate dates in November and
December of 2009, his unsupervised visits were changed to supervised
visits. The department recommended that
they be returned to unsupervised visits because of father’s subsequent compliance
with Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings and negative
random drug tests. Mother tested
positive for methamphetamine, cocaine, and opiates on several occasions, but
she also presented a prescription for Vicodin.
Her psychological evaluation found that she suffered from anxiety and
posttraumatic stress disorder and depression, but would benefit from continued
reunification services.
The
juvenile court adopted the recommendation of the department. T.R. was continued in placement in foster
care, and mother and father were granted six additional months of reunification
services. Father’s visits were ordered
to be unsupervised, and the department was given discretion to provide mother
with unsupervised visitation upon proper notice.
At the
12-month review hearing held June 9, 2010, the department recommended the
continuation of reunification services for both parents, that mother’s
unsupervised visits occur only at the inpatient substance abuse treatment
center she was in, and that the department be allowed to institute liberal
visitation between T.R. and mother and father.
Mother and
father both consistently and regularly visited T.R., who remained in foster
care. Mother “remained a constant
fixture in her daughter’s life,” exhibited appropriate parenting skills and
age-appropriate expectations, was very attentive to her daughter’s needs,
referred to T.R. in loving terms, and showed “incredible self-insight.” Despite relapses in her substance abuse
objective, mother successfully completed a parenting program, a victim-based
domestic violence treatment program, and continued with random drug testing and
individual therapy, both inside and outside her treatment program. Father successfully completed a parenting
class, intensive outpatient substance abuse and batterer’s treatment, and
continued to attend weekly AA/NA meetings and random drug test.
The
juvenile court found that it would be detrimental to return T.R. to the custody
of her parents and ordered that she remain a court dependent in her current
placement and that reunification services to both mother and father be
continued. Unsupervised visitation at
mother’s treatment facility was continued.
Liberal visitation with father would begin after the department visited
father’s home and cleared everyone who lived there.
In
September of 2010, mother left the grounds of her inpatient treatment facility
without permission, and a few days after that she engaged in an altercation
with another resident. She was then
discharged from the program. Supervised
visitation was ordered for mother.
The
18-month-review hearing in January of 2011 was heard only as to father as
mother requested a contested hearing.
The department recommended that father begin family maintenance services
since he had met his service objectives and was able to maintain housing and
full-time employment over the past year.
The department had “growing concerns” about mother’s “instability
emotionally and otherwise,” and her behavior led the department to believe that
she did not possess “the capacity to safely and appropriately parent
[T.R.]” She was unable to complete any
of the five substance abuse programs she attended, she was no longer random
drug testing, and she was living in a motel.
The juvenile court ordered placement of T.R. with father under a plan of
family maintenance.
At the
contested 18-month review hearing for mother on March 18, 2011, the
department recommended that father be given sole custody of T.R. and that
mother be given supervised visits once a week.
The department had originally recommended joint legal custody in its
report of March 11, 2011, but made the change in recommendation at the
hearing.
At the
hearing, a substance abuse specialist, Clyde Gosser, testified that mother
could find “good recovery” in NA/AA meetings and working with a sponsor. Mother attempted to introduce a drug
assessment from Central California Recovery, which Gosser identified as coming
from that agency. The juvenile court
sustained objections of father’s counsel and county counsel to Gosser’s
testimony about the recommendation in the assessment on grounds of lack of
foundation and relevance.
The current
case social worker for mother testified that mother’s visits were changed from
unsupervised to supervised due to her discharge from the treatment center in
September 2010. The department had no
information that mother had used drugs, although she was dropped from a testing
program due to consistent no-shows.
Supervised visits were also ordered due to “emotional outbursts” on
mother’s part, although the last such outburst occurred in late November or
early December of 2010. The social
worker no longer had concerns about these “outbursts” and mother had been doing
“okay” during visitations. T.R.’s
reaction to mother had improved and she invited and included mother in
activities.
Mother
testified in her own behalf. Her 2009
and 2010 AA/NA attendance slips were admitted into evidence. The slips stopped at February 17, 2011,
but mother testified that she had been attending meetings since then and had a
sponsor. She attributed her emotional
“outbursts” to doctor prescribed medication.
She had changed doctors in January of 2011 and he adjusted the dosage of
the medication. Mother testified that
she had not drug tested because she could not afford the $2 copay for each
test, and the department declined to provide her with a free test
facility. Mother was currently enrolled
in relapse prevention, mental health counseling, and she had completed a
domestic violence victim program.
Mother
believed she was ready for unsupervised
visitation with T.R. Although father
allowed her to call T.R. more than once a week, half the time he did not answer
the telephone and said he didn’t need to because he could do whatever he wanted
with T.R. living with him. Mother
believed that without unsupervised visits, father would prevent any contact.
County
counsel, minor’s counsel, and father’s counsel all asked that the juvenile
court adopt the department’s recommendations as its findings and orders on the
18-month review and exit orders. Father
objected to certain parts of the order:
(1) to paragraph 2.03, because it allowed “unsupervised, telephonic
contact between mother and the minor”; (2) to paragraph 4.05, which stated that
when the child was with the parent, that parent was not to associate with
anyone using alcohol, and was therefore unduly restrictive; and (3) to
paragraph 6.02, which he wished to amend to include, in addition to completion
of a drug treatment program, mother’s “[p]roof of a pattern of sobriety of some
months’ duration” and “proof of successful mental health treatment beyond”
medication before being allowed to move for a change in custody or visitation. Mother objected to the change recommended in
paragraph 4.05, to allow father to associate with alcohol users while T.R. was
in his care.
In response
to mother’s request for joint legal custody, the juvenile court stated that it
was “not inclined” to order it. The juvenile
court found that the department had offered reasonable services designed to
assist mother in overcoming the problems which led to the initial and continued
removal of the child, and terminated reunification services as to her. The court ordered supervised telephone
contact with T.R. on Friday evenings between 5:00 and 6:00 p.m., supervised by
father. The court ordered paragraph 4.05
amended: from refraining from being around
others “using” alcohol to “abusing” alcohol.
The court ordered paragraph 6.02 amended to state that satisfactory
compliance was conditioned upon mother showing a period of sobriety. The court ordered supervised visits to take
place at an agency for an hour once a week.
Father was
ordered to have sole legal and physical custody of T.R. under sections 304,
361.2, and 362.4. Dependency was
terminated under section 364, subdivision (c).
DISCUSSION
I. Standard of Review
“[T]he
juvenile court has broad discretion to make custody orders when it terminates
jurisdiction in a dependency case (§ 362.4) ….” (In re
Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) We review the juvenile court’s order for
abuse of discretion. (
798, 806.) A juvenile court abuses its
discretion “‘“‘by making an arbitrary, capricious or patently absurd
determination.’”’ [Citations.]” (Ibid.)
Protective
orders after termination of the juvenile court’s jurisdiction are authorized by
section 362.4, which provides in relevant part, that “[w]hen the juvenile court
terminates its jurisdiction over a minor who has been adjudged a dependent
child of the juvenile court prior to the minor’s attainment of the age of 18
years, … the juvenile court on its own motion, may issue … an order determining
the custody of, or visitation with, the child.”
“The standard which governs all determinations in dependency proceedings
is to protect the welfare and best interests of the child.” (In re
Elizabeth M. (1991) 232 Cal.App.3d 553, 569, abrogated on other grounds in
811, 817.) Thus, when making an exit
order pursuant to section 362.4, the standard that guides the juvenile court is
the best interests of the child. (
973; In re Jennifer R. (1993) 14 Cal.App.4th
704, 712.)
II. Sole Legal Custody
Mother
contends first that the juvenile court abused its discretion in granting father
sole legal custody of T.R. because “the court did not articulate the findings
upon which it based its order,” and that the findings cannot be implied from
the evidence. We find no abuse of
discretion.
Under the
Family Code, “‘Sole legal custody’ means that one parent shall have the right
and the responsibility to make the decisions relating to the health, education,
and welfare of a child.” (Fam. Code,
§ 3006.) An exit order determining
custody must be made “in the context of the peculiar facts of the case before
the court.” (In re John W, supra, 41
Cal.App.4th at p. 965.)
Here the
evidence clearly supports the juvenile court’s decision to grant father sole
legal custody of T.R. The child was
originally brought to the attention of the department in April of 2009 when
mother brought her to a police station, unable to care for her due to mother’s
drug use. Almost two years later, her
inability to complete any of the five substance abuse programs she had
attended, her lack of participation in random drug testing, and her volatile
behavior solidified the department’s opinion that she “did not possess the
capacity to safely and appropriately parent her daughter.” At the time of the 18-month review hearing in
March of 2011, mother had still not completed a drug treatment program,
although she was currently enrolled and in compliance with such a program. Mother’s continuing drug addiction, her
volatile behavior, and her failed attempts at rehabilitation support the
juvenile court’s determination that her participation in making important
decisions about T.R.’s welfare would not be in T.R.’s best interests. Mother has not cited any evidence that
supports her apparent claim that she is capable of sharing legal custody or
that joint legal custody would be in T.R.’s best interests.
Sufficient
evidence supports the juvenile court’s determination that it is in T.R.’s best
interests that father have sole legal custody.
The juvenile court’s order does not, however, forever bar mother from
sharing legal custody of T.R. If the
circumstances that caused the juvenile court to award father sole legal custody
change, mother may seek joint legal custody.
(§ 362.4; In re Jennifer R.,
supra, 14 Cal.App.4th at pp. 712,
714.)
III. Supervised Visitation and
Telephone Contact
Mother next
argues that the juvenile court abused its discretion when it reduced her
supervised visits to one hour per week, down from two hours per week, and when
it authorized father to supervise telephone contact between her and the
minor. We find no abuse of discretion.
As a result
of the proceedings, a new visitation order was issued restricting mother’s
visits to supervised visits one hour a week and granting her once a week
telephone contact with T.R., monitored by father. The visitation order challenged by mother was
made as part of the juvenile court’s exit order pursuant to section 362.4, when
the court terminated jurisdiction and dismissed the dependency case. Despite mother’s claim to the contrary,
section 362.4 does not require a finding of detriment to deny visitation in the
exit orders. The Legislature knows how
to require the juvenile court to make an express finding of detriment, and it
did not do so.
Here, the
record supports the juvenile court’s decision to limit contact between mother
and T.R. to one hour a week and to weekly telephone contact supervised by
father. Mother cites the department’s
12-month review report which states that mother consistently and regularly
visited T.R., that she exhibited appropriate parenting skills, age-appropriate
expectations, and was very attentive to T.R., and the social worker’s testimony
at the 18-month review in which she stated that visits were going well.
But the
juvenile court also had before it the report prepared for the March 11,
2011, hearing which disclosed that mother began unsupervised visits with T.R.
in April of 2010, but returned to supervised visits after her relapse. In June of 2010, mother was again granted
unsupervised visits but returned to supervised visits when she was discharged
from the substance abuse treatment facility.
Supervised visits were arranged at another treatment facility but
terminated due to mother’s “too explosive” behavior, which placed the staff at
risk. Mother was said to be very
argumentative, yelled, cussed and made numerous complaints about the
staff. She was unsatisfied with the
terms of the visits, claiming that the 10:00 a.m. start time was too late, but
when changed to 9:00 a.m., said they were too early. Mother had become very angry when told that
using a knife with a three-year-old to carve a pumpkin was not appropriate.
Supervised
visits were then arranged at the next treatment facility, but mother again
displayed explosive behavior, which resulted in the first visit being
cancelled. Mother’s supervised visits
had to be relocated to another facility due to concerns for staff safety. The report prepared in anticipation of the
March 2011 hearing recommended that mother’s visits remain supervised and be
reduced to two times per month “[d]ue to [mother’s] unpredictable pattern of
behavior.”
Under these
circumstances, we cannot say the juvenile court abused its discretion in
limiting mother’s visitation in the exit orders.
Nor can we
say that the trial court abused its discretion in authorizing father to
supervise telephone communication between mother and T.R. The exit order provides, in relevant part,
“The mother shall have supervised telephone
communication with the child every Friday between 5 p.m. and 6 p.m. These telephone communications shall be
supervised by the father.”
Mother
argues that the order was an abuse of discretion in that it effectively gave
father “veto power” over mother’s rights to telephone visitation. At the hearing, father’s counsel wanted the
court to “understand” that “[t]here’s times when [the minor] walks away from
the phone.” The court replied
“Understood.” Mother claims this
exchange was an indication that the court order allowed father to determine
whether the telephone visitation would in fact occur. She cites to In re T.H. (2010) 190 Cal.App.4th 1119, 1123, for the proposition
that a visitation order may not give one parent the power to determine whether
visitation will occur at all.
But in
issue stated that visitation would occur only upon “agreement of the
parents.” (In re T.H., supra, 190
Cal.App.4th at p. 1123.) This, the
appellate court found, was “more than simply a delegation of the authority to
set the ‘time, place and manner’ of the visitation—it effectively delegates to
[one parent] the power to determine whether visitation will occur at all.” (Ibid.)
This is not
the case here. The order specifically
states that mother “shall have supervised telephone communication with the
child every Friday between 5 p.m. and 6 p.m.”
The order does not give father the power to determine whether visitation
will occur. Father’s counsel’s statement
that T.R. might not always have the patience to remain on the line for that
length of time is simply a reality when dealing with a three year old.
In sum,
mother has not established that the juvenile court abused its discretion by
authorizing father to supervise telephone contact between mother and the minor
in the exit orders.
The court
exercised its discretion, guided by the best interests of the minor, in
determining how often to permit visitation and in ordering father to supervise
telephone contact. (§ 362.4;
14 Cal.App.4th at p. 712; In re Roger S.
(1992) 4 Cal.App.4th 25, 30-31.)
IV. Father Allowed to be Around
Alcohol Drinkers in Minor’s Presence
Mother next
contends that the juvenile court abused its discretion when the exit order
allowed father to be “around” alcohol drinkers with T.R. We find no abuse of discretion.
The
original recommended exit order would have disallowed either parent from being
in the presence of anyone who was using alcohol or illicit drugs when T.R. was
in his or her care:
“When the child is in the care of either parent, that
parent shall not associate with anyone using alcohol or using illicit
drugs. It is the responsibility of each
parent to provide the child with a drug free and sober environment. A violation of this provision may be
considered a change of circumstance.”
At the review hearing, father’s counsel argued that this
order was “a little tough” on father, who could not control the behavior of
others. The court mediator suggested
substituting “abusing” for “using” alcohol.
The court ordered the amendment over mother’s counsel’s objection.
According
to mother, father’s past history of under the influence arrests, convictions,
and probation did not make him “a likely candidate to distinguish ‘using’ from
‘abusing.’” But at the time of the
order, the juvenile court had before it a significant amount of evidence that
father had done very well in his reunification services. According to the social worker’s report,
father had been able to meet “all of his case plan objectives,” which included
mental health assessment and treatment, parenting class, batterer’s treatment,
substance abuse treatment and random drug testing. He had maintained his sobriety and, for the
past year, maintained permanent housing and full-time employment, “while still
meeting the needs of [T.R.].” As of
March of 2011, father submitted to 103 of a possible 104 random drug tests and
had tested clean for all substances since December 9, 2009. He consistently attended weekly AA/NA
meetings, where he was an active participant at each meeting and a facilitator
at one meeting per week.
The social
worker also found father’s relationship with T.R. to be appropriate. Father began weekly visits with T.R. in July
of 2010, but by the time of the January 2011 status review report, T.R. was
staying with father at his house six nights per week. According to the foster parent, father was
always timely and consistent with the visits, appropriately met T.R.’s needs,
and made necessary adjustments when needed.
Mother’s
contention that the juvenile court abused its discretion in allowing father to
have the minor “around” people drinking alcohol fails because the juvenile
court had before it substantial evidence that, as of March 2011, father had
taken all of his obligations under the case plan seriously and successfully
completed the services offered. Mother
has failed to establish that this particular order constitutes an abuse of discretion.
V. Prejudice
Finally,
mother argues that the exit order was
prejudicial because of the probable difficulty in any attempt on her part to
modify the order in the future. She also
contends that T.R. was prejudiced because the order abrogated the minor’s bond
with mother and was not in her best interests.
We disagree.
Relying on
190, 196, mother argues that she was prejudiced because any attempts on her
part to modify the order in family law court in the future will be unduly
difficult. As stated in
“[W]e presume some prejudice from the simple fact that a
family law court will naturally defer to a recent order of the dependency court
concerning custody and visitation.…
Since the orders made by a juvenile court at a section 364 hearing are
necessarily made while dependency jurisdiction continues, it follows logically
that a family law court would defer to those orders and hesitate to
second-guess the juvenile court judge, at least absent something more than the
ordinary showing of changed circumstances.”
(Id. at p. 196.)
First, we
agree with respondent that, lacking any demonstrated error in making the exit
order, any discussion regarding future prejudice is premature. Second, we also agree with respondent that
physical and legal custody to father with monitored visits to mother was made
after twice denying mother an evidentiary hearing. (In re
Michael W., supra, 54 Cal.App.4th
at p. 197.) Here, no such error occurred
as mother had a full hearing on the proposed terms of the exit order.
DISPOSITION
The
judgment is affirmed.
__________________________
DAWSON, J.
WE CONCUR:
________________________________
LEVY, Acting P.J.
________________________________
DETJEN, J.
name="_ftn1" title="">[1]All
further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
name="_ftn2" title="">[2]The
department sought to bypass mother’s reunification services under section
361.5, subdivision (b)(10) and (11), but was unable to support its position
because it lacked documentation on the cases of mother’s older children.
