In re Martin D.

Filed 2/21/08 In re Martin D. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

C.V. (Mother) appeals from an order of the juvenile court requiring her visits with her son, Martin D., to be monitored. The monitor requirement was entered as part of the disposition order after the court had sustained a Welfare and Institutions Code section 387 supplemental petition alleging that Martins placement with the maternal grandmother was no longer suitable.[1] As we shall explain, we conclude that the court did not abuse its discretion by ordering that Mothers visits are to be monitored. Accordingly, we affirm the order.

factual and procedural background

Martin, born in May 2003, came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in December 2004. DCFS had received a referral from a hospital regarding Martin, indicating that he had suffered severe trauma to his abdomen. Martins father, Martin, Sr. (Father), told the social worker the child had slipped on some stairs and fell backwards while in Mothers care.[2] Father said the child did not appear to be injured at the time. The parents took him to the doctor three days later, when they noticed his stomach was swollen.

Martins physician reported that he had suffered blunt force trauma to the pancreas and laceration of the liver, as well as a fractured rib. His injuries were not consistent with having fallen down three stairs. Father later admitted to the police that he had just lost it, and had wrapped his hands around the childs mid-section and squeezed. He continued to deny wrongdoing to the social worker, however, and said the police made him confess to something he did not do.

Martin was detained by DCFS. On December 28, 2004, DCFS filed a petition pursuant to Welfare and Institutions Code section 300. The juvenile court found a prima facie case for detaining Martin, who remained hospitalized.

Martin was eventually placed in the home of the maternal grandparents. The court granted Mother monitored visits, and permitted the maternal grandmother, Miriam, to serve as the monitor. The court ordered DCFS to ensure that Miriam and her husband understood the meaning of monitored visits.

The court sustained the section 300 petition on April 25, 2005, finding true that Martin suffered from a life-threatening condition as a result of Fathers unreasonable acts. Father was denied reunification services pursuant to section 361.5, subdivision (b)(5). Mother was granted reunification services, and ordered to attend a 52-week parent education class and individual counseling to address case issues, including protection of the child, codependency, and her denial of the nature and cause of Martins injuries. Mother was granted unmonitored visitation in Miriams home, and monitored visitation outside of Miriams home. In July 2005, the court permitted Mother to have twice weekly, unmonitored visits outside the maternal grandmothers home. The court further ordered that Mother could have overnight visitation in the caregivers home, and in fact was permitted to live there.

At the six-month review hearing ( 366.21, subd. (e)), held in August 2005, the court found that returning Martin to Mothers physical custody posed a risk of detriment to the child, but it was likely that Martin could be returned to Mothers physical custody within six months. Mother was enrolled in parenting classes, though not a 52-week program as ordered, and was participating in individual counseling. She had not exercised her unmonitored visitation with Martin during the reporting period.

The twelve-month review hearing ( 366.21, subd. (f)) was held in February 2006. DCFS reported that Mother had continued to reside with Father, but apparently had moved elsewhere in January 2006. Mother said she was living with her sister, but had not provided the social worker with her address and telephone number. Although Mother and Father were living apart, there was no indication their relationship had ended. Mother had not enrolled in a 52-week parenting program, although such programs were available to her. Based on Mothers failure to comply with the case plan, DCFS recommended termination of reunification services. The court continued the matter for an evidentiary hearing.

At the hearing on March 28, 2006, the court terminated family reunification services for Mother, finding she had not made substantial progress in addressing the issues involved in the case. In Mothers presence, the court ordered that Mother could reside in the maternal grandmothers home once she is in complete compliance, meaning in individual counseling with the counselor who is dealing . . . with the issues that were supposed to be addressed in a 52-week parenting program. Her living with maternal grandmother was conditioned upon DCFSs confirmation that she was in complete compliance with the case plan. The matter was set for a selection and implementation hearing ( 366.26), and DCFS was ordered to provide permanent placement services for Martin. A home study of the maternal grandmothers home had been initiated.

On September 27, 2006, DCFS filed a section 387 supplemental petition, indicating that the social worker detained Martin from the maternal grandmothers home on September 22, 2006. The section 387 petition alleged that the maternal grandmother had created a detrimental home environment by allowing Mother to reside in the home and have unlimited access to Martin. The petition further alleged that the maternal grandmother had created a detrimental home environment by allowing the maternal uncle, Eric V., to reside in the home while he was on probation. On September 22, 2006, while the adoptions social worker was at the maternal grandmothers home, four police units had arrived, looking for Eric. The maternal grandmother first told the social worker that Eric was her nephew, but later admitted that he was her son. The maternal grandmother also admitted to the social worker that she had permitted Mother to move into her home two months before.

On September 27, 2006, the juvenile court returned Martin to the maternal grandmothers care, conditioned on Eric and Mother not residing in her home. Mothers visits were ordered to be held in a neutral setting, not at maternal grandmothers house.

On September 30, 2006, the DCFS social worker visited Fathers last known address. A paternal relative living next door told the social worker that Mother still lived there with Father. The social worker had repeatedly asked Mother where she was living and if she knew Fathers whereabouts, but Mother did not disclose that she was apparently continuing her relationship with him.

On the previous day, the social worker had met with Erics probation officer. During that meeting, the probation officer telephoned the maternal grandmothers home. The maternal grandmother answered the phone, and called Eric to the phone when the probation officer asked to speak with him. Eric confirmed that Martin was also in the home. The probation officer asked if there was a problem with Eric living at home while Martin was there. Eric confirmed there was a problem, but said the social worker would not find out. As a result, on October 4, 2006, DCFS again removed Martin from the maternal grandmothers home.

At a hearing on October 4, 2006, the court ordered Martin removed from his placement with the maternal grandmother, and placed in foster care. No changes were made in Mothers visitation orders. The matter was continued for adjudication of the section 387 petition.

DCFS reported that during an unmonitored visit with Martin on October 18, 2006, Mother took the child to a medical clinic because she believed he was being physically abused by the foster caregiver. She did not inform the social worker or foster mother that she had done so. However, the physician informed the social worker, and said there was no indication of any abuse. The foster caregiver requested that Martin be removed because she did not want to have further contact with Mother, or to be subjected to continuing accusations of abuse.

The social worker expressed concern that the maternal grandmother and Mother had been evasive in disclosing necessary information to DCFS to ensure the childs safety, and both had continued to mislead DCFS as to their current living arrangements, the nature of the visitations, and Mothers relationship with Father. Mothers access to this child has nullified [DCFSs] efforts to protect this child from further harm by his parents. DCFS also noted that the court had given it discretion to allow Mother to live with the maternal grandmother, but because Mother did not complete her classes and continued her relationship with Father, that discretion was not exercised.

The section 387 petition was adjudicated on November 13 and 14, 2006. Mother testified that her lawyer had told her it was permissible for her to live with the maternal grandmother. She did not discuss the matter with the social worker; Mother did not speak to the social worker because Mother did not like her. Mother testified that she ended her relationship with Father when DCFS told her she had to in order to regain custody of Martin. She denied that Eric was living in the maternal grandmothers home. Asked to state her current address, she said that it was somewhere by Florence, but she did not know the address or even the name of the street.

The court sustained the section 387 petition, finding that Martins placement with the maternal grandmother was no longer appropriate. Counsel for DCFS requested that Mothers visits with the child be monitored. Martins counsel joined in that request. The court found that Mother had been allowed to reside in the home and was given unlimited access to the child without approval, and furthermore, Mother had refused to have contact with the social worker who was to have evaluated Mothers visits with Martin. The court ordered that Mothers visits were to be monitored by a DCFS-approved monitor, at least weekly.

This timely appeal followed.

discussion

Mother contends that the order requiring that her visits with Martin be monitored was unwarranted. She argues that the courts actions restricting her contact with Martin will erode the parental relationship and could undermine any later attempt to come within the exception to adoption pursuant to section 366.26, subdivision (c)(1)(A). She further contends that the courts reasons for ordering that visits be monitored her living with maternal grandmother and refusing to contact the social worker were not based on any detriment to Martin, but instead were the result of the courts anger at Mother and the maternal grandmother for misrepresenting Mothers living in the maternal grandmothers home. As we shall explain, we find no abuse of discretion and affirm the order requiring visits to be monitored.

An order setting visitation terms is generally reviewed for abuse of discretion. [Citation.] (Los AngelesCounty Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.)

Section 366.21, subdivision (h), provides that once family reunification services have been terminated, [t]he court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, other than the childs siblings, who are important to the child, consistent with the childs best interests. Thus, in the absence of a finding that visitation would be detrimental, the court was required to continue to permit Mother to visit Martin. Such a visitation order, however, must be consistent with the childs best interests. [T]he parents interest in the care, custody and companionship of their children is not to be maintained at the childs expense. (In re S.H. (2003) 111 Cal.App.4th 310, 317 [pre-termination of reunification services].)

The courts order here was fully justified by Mothers refusal to comply with the case plan, which required her to take parenting classes and cooperate with the social worker. She was dishonest and evasive regarding her relationship with Father, where she lived, and whether Eric was living in the same home with Martin. She refused to acknowledge that the environment in the maternal grandmothers home was likely to be detrimental to Martin. In short, she demonstrated that she was not focused on Martins best interests. It was therefore entirely reasonable for the court to order that Mothers visits with Martin be monitored. Any erosion of the parental relationship or undermining of Mothers ability to come within the exception to adoption found in section 366.26, subdivision (c)(1)(A), has been caused by Mothers irresponsible conduct and poor judgment, not by any anger or animosity on the part of the court. The court did not abuse its discretion in ordering monitored visitation.

disposition

The order requiring Mothers visits with Martin to be monitored is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

[1] All undesignated section references are to the Welfare and Institutions Code.

[2] Father is not a party to this appeal.