In re BarryL.

Filed 6/16/08 In re BarryL. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In this juvenile dependency matter, the juvenile court ordered that appellant Barney L. have no further contact with his son, Barry L., and instructed the agency not to send any further reports to the father. On appeal, Barney contends that the juvenile court abused its discretion by issuing its no-contact order and committed reversible error by ordering the agency not to send him any further reports. We affirm the juvenile court order.

I. FACTS^[1]

The facts of this case are familiar to us, as we have issued three prior appellate opinions in this matter.^[2] Appellant Barney L. is the father of Barry, who was born in December 1997. In September 2004, Barry came to the attention of child protective authorities, having displayed significant aggression and violence. As Barney was incarcerated in state prison with an expected release date of July 2007,^[3]he was unable to protect or provide for his son. In November 2004, Barry was declared to be a dependent child and placed in a therapeutic group home. Barney was not offered reunification services because of his on-going incarceration. (See Welf. & Inst. Code,  361.5, subds. (b)(12), (e)(1).) By April 2005, seven-year-old Barry was being given psychotropic drugs to help him control his hyperactivity and explosive violent conduct. These drugs were given to him continuously, often over Barneys objection.

Issues of visitation and written communication between Barney and Barry arose frequently in the juvenile court proceedings. Initially, the juvenile court barred physical visitation, but permitted written correspondence between Barry and Barney, if Barrys therapist found this to be in the minors best interest.^[4] At the six-month review hearing in July 2005, the juvenile court continued to allow Barney to have screened letter contact with Barry, but denied the fathers request to have contact visits with his son in prison.^[5] In September 2005, at Barneys request, the juvenile court ordered the social worker to provide monthly informal reports to him about Barrys educational and therapeutic progress.

At the 12-month review hearing in October 2005, Barneys request for visitation was again denied. At the 18-month review hearing in February 2006, the juvenile court again ordered that any written contact between Barney and Barry be screened by Barrys therapist. Supervised telephone contact between Barney and Barry was permitted only if Barrys therapist believed that it would be helpful to the minor and in his best interests. The juvenile court adopted long-term foster care as Barrys permanent plan.

In May 2006, Barney had verbal and written confrontations with the social worker about her handling of the case. In June 2006, he sought formal modification of the juvenile courts prior orders. (See Welf. & Inst. Code,  388.) He complained that the social worker and Barrys therapist were not sending him the monthly reports that the juvenile court had ordered. Barney also asked the juvenile court to compel Barrys therapist to help the minor respond to Barneys letters. According to the therapist, Barry had been hesitant to or had refused to write letters to Barney for many months. At the hearing, the juvenile court denied Barneys request. It reduced the frequency of the social workers informal reports from a monthly to a quarterly basis.^[6] In August 2006, the juvenile court approved Barrys continued placement after a review hearing.^[7]

In January 2007, Barney petitioned the juvenile court for an order compelling Barrys therapist to read the fathers letters to the minor, without success. (See Welf. & Inst. Code,  388.) In the summer of 2007, Barry was transitioned from his group home to a therapeutic foster home for a few weeks, but his unmanageable behavior prompted a termination of this placement. By this time, the minors medication was being monitored biweekly by a psychiatrist who was treating his mental health issues.

By August 2007, Barry had been placed back in a therapeutic group home. His therapist censored Barneys letters to Barry, finding them to be counterproductive to the minors treatment. The therapist and the agency asked the juvenile court to terminate this correspondence. The agency also sought to end the requirement that it give informal quarterly reports to Barney. At this time, the juvenile court was advised that Barney was scheduled to be released from state prison in June 2008.

In September 2007, Barney filed an amended petition for modification, again seeking more stringent enforcement of the juvenile courts order requiring informal reports to be provided to him. The juvenile court denied this request. Later that month, the juvenile court conducted another review hearing. It heard evidence that Barry did not want to communicate with Barney and that the fathers letters were inappropriate. Barney testified that he preferred Barry to be placed with his family rather than with strangers in a foster care setting. He also wanted to reduce Barrys use of medication.

At the conclusion of the review hearing, the juvenile court ordered the agency not to provide any further informal reports to Barney and precluded any further contact between him and Barry. It also approved the request for Barrys continued medication, over Barneys objections. Barney filed a timely notice of appeal from this order.^[8]

II. NO-CONTACT ORDER

When the juvenile court cut off written contact between the father and son, it explained that the juvenile dependency process was about protecting Barrys interests, not Barneys. It rejected Barneys focus on himself and his genetic link to a child that barely knew him. It railed against the fathers refusal to accept that his son was not a possession, but a child with enormous daily needs that Barney was not yet able to meet. Speaking bluntly, the judge told him: Barry doesnt know you. Barry doesnt need to know you. . . . Barry is better off not knowing you. . . . You are all about you . . . . [Y]ou are not about Barry.

On appeal, Barney contends that the juvenile court abused its discretion by issuing this no-contact order. He argues that the trial court issued the order in a fit of pique to punish him, rather than acting within the bounds of reason for the benefit of his son. We disagree. The appropriate test for a no-contact order is whether the juvenile court abused its discretion by acting in excess of the bounds of reason. (See, e.g., In re J.N. (2006) 138 Cal.App.4th 450, 459.) We find no abuse of discretion in this matter. Barney was incarcerated when Barry was very young and Barry feels little connection to his father. It is apparent from the fathers inappropriate past contacts with his son and his opposition to Barrys placement and medication plan that he does not acknowledge the minors serious emotional problems. The juvenile courts comments at the conclusion of the hearing express its frustration about Barneys denial of his sons needs. We find that the juvenile court acted within its discretion when concluding that continued contact with Barney would not be in the minors best interest.^[9]

III. ELIMINATION OF QUARTERLY REPORTS

Finally, Barney contends that the juvenile court committed reversible error by ordering the agency not to send him any further reports. He argues that in so doing, the juvenile court violated the statutory requirement that he be given notice of agency reports generated before each review hearing. (See Welf. & Inst. Code,  366.21, subd. (c).) We are satisfied that this claim of error is based on a misconstruction of the juvenile courts order. We do not interpret the juvenile court order as barring the agency from sending Barney regular agency reports prepared in advance of review hearingsreports that the father is entitled to receive by statute. A reasonable reading of the record suggests that the juvenile court only ended its self-imposed requirement that Barney receive interim monthly or quarterly reports on Barrys progress. Viewed in this manner, we find the juvenile court acted within its authority when it ruled that no more photographs or letters needed to be provided to Barney in between the review hearing reports.

The juvenile court order is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

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^[1]We have taken judicial notice of several earlier appeals involving the same parties. (See Evid. Code,  452, subd. (d)(1), 459, subd. (a).)

^[2]Many of these facts are taken from these earlier appeals. (In re Barry L. (Apr. 19, 2007, A114699 [nonpub. opn.]; In re Barry L. (Jan. 13, 2006, A111182 [nonpub. opn.]; In re Barry L. (Sept. 29, 2005, A109665 [nonpub. opn.].) As Barrys mother is not a party to this appeal, we refer to facts pertaining to her only as they relate to the fathers appeal.

^[3]Barney has an extensive and violent criminal history, and he has been in and out of state prison for nearly 30 years. In the past, he has been convicted of felony threats to a school official, rape, kidnapping, robbery, false imprisonment, and inflicting corporal injury on a spouse. Since 2002, it appears that he has been incarcerated for failing to register as a sex offender and for a parole violation. (See Pen. Code,  290.) Barney is now scheduled to remain in prison until June 2008.

^[4]We rejected Barneys appeal of this ruling in September 2005. (In re Barry L. (Sept. 29, 2005, A109665 [nonpub. opn.].)

^[5]In January 2006, we rejected Barneys appeal of this ruling. (In re Barry L., supra, A111182.)

^[6]In April 2007, we rejected Barneys appeal of this decision. (In re Barry L., supra, A114699.)

^[7]Barney appealed the order after this hearing, but the appeal was dismissed after appellate counsel found no issues to raise and the father failed to file his own opening brief.

^[8]This is an appealable order. (See Welf. & Inst. Code,  395.) In January 2008, we denied Barneys application for a stay pending appeal.

^[9]Barney filed his own supplemental brief in this matter. Although the issues he raises in it were adequately discussed by counsel, we have considered it, as well. Despite the issues raised in both briefs, we find that the juvenile courts order is supported by substantial evidence.