In re Daniel M.



















Filed 12/10/12 In
re Daniel M. CA6

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SIXTH APPELLATE DISTRICT




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In re DANIEL M. et al., a Person Coming Under the Juvenile Court Law.	H038657 (Santa Clara County Super. Ct. Nos. JD12035, JD20298, JD20299, JD20300)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES, Plaintiff and Respondent, v. KIMBERLY M., Defendant and Appellant.

Appellant
Kimberly M. (the mother) appeals from an interim
visitation order entered after the court had held the Welfare and
Institutions Code section 366.26 hearing but before it had issued its
decision. Her sole claim on appeal is
that the juvenile court abused its discretion because the court erroneously
believed that it was increasing rather than decreasing the frequency of visitation,
and reduced visitation was not in the children’s best interest. We reverse the juvenile court’s order.



>I. Background

In September 2010, the court took
jurisdiction over the mother’s four children due to the mother’s long-standing
substance abuse. At the October 2010
dispositional hearing, the children were removed from parental custody, and the
mother was granted reunification services. The court ordered that she would have
supervised visits with the children once a week for two hours. At the six-month review hearing in June 2011,
the court continued reunification services and the same level of
visitation. As of October 2011, the
mother was actually visiting with the children twice a week. She continued to use PCP. At the contested 12-month review hearing in
February 2012, the court terminated reunification services and set a Welfare
and Institutions Code section 366.26 hearing for May 24. Visitation was continued at once a week for
two hours.

The
Department recommended that the permanent plan for the children be a legal
guardianship with their adult brother Anthony and his girlfriend. The children were placed with Anthony and his
girlfriend on May
11, 2012.
The mother was continuing to visit the children twice a week, but the
Department was recommending that her visitation be reduced to one supervised
visit each month. Anthony and his
girlfriend reported that the mother had harassed them.

At
the May 24,
2012 hearing, the mother’s trial counsel
told the court that the mother “objects to her
visitation . . . being reduced from one time a week to once
a month.” The court ordered the parties
to mediate the issues of the appropriate permanent plan, educational rights,
and visitation. The mediation was held
on July 5, 2012, and the mother requested a contested Welfare and Institutions Code
section 366.26 hearing, which was set for August 9.

At
the August 9,
2012 hearing, the mother informed the court
that she did not oppose a legal guardianship.
The Department informed the court that it had changed its recommendation
as to visitation from “one visit per month” to “two visits per month, which in
the intervening time the Department feels is more appropriate.” The mother sought weekly visits with the
children from “Thursday through Sunday.”
The children’s trial counsel agreed with the Department’s visitation
recommendation. “I think it’s an
appropriate minimum given the children’s very busy schedules and their capacity
for visits.” She opposed the mother’s
request for “weekend visits” that could not “be properly supervised.”

The
court said to the mother’s trial counsel:
“Well, let me then hear your arguments regarding visitation and the
reasons that you would request something different than the Department and
minor’s counsel are recommending.” The
mother’s trial counsel argued that “two times a month for two hours supervised
is just not enough and it’s not a natural setting.” The Department argued that “visitation needs
to remain supervised for the protection of the children,” and, because the
children had recently moved to Anthony’s care, “they need to transition to that
environment . . . .”
The children’s trial counsel argued that the children’s safety would be
at risk if they had unsupervised, extended visits with the mother. The advocates for the children agreed with
the Department’s recommendation regarding visitation.

The
court took a recess to review the reports.
After the recess, the court notified the parties that it would be
continuing the matter to October 11, 2012 for
decision. “In the interim, I am going to
increase the previously ordered minimum visitation for the mother from a
minimum visitation order of supervised one time a month for two hours to a
minimum of two times per month for two hours each visit. [¶] I
have considered the mother’s request for more expansive lengthier and overnight
visits, I do not believe it is in the children’s best interest given the
current circumstances to expand the minimum to her desires, but I do believe it
is appropriate to reflect the visitation that has been occurring and that has
been recommended by the Department by minor’s counsel and also by the advocates
who have spoken to that issue today and to allow the visits to be a minimum of
two times per month for two hours per visit.”


The
court’s signed minute order states: “The
Court modifies visitation as follows:
Mother is to have supervised visitation a minimum of two (2) times per
month for two (2) hours each visit.” The
matter was continued for decision to October 11, 2012. The mother timely appealed from the court’s
visitation order.



II. Analysis

Visitation
orders are reviewed for abuse of discretion.
(In re Brittany C. (2011) 191
Cal.App.4th 1343, 1356.) “The abuse of
discretion standard is not a unified standard; the deference it calls for
varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are
reviewed for substantial evidence, its conclusions of law are reviewed de novo,
and its application of the law to the facts is reversible only if arbitrary and
capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns.
omitted.)

Here,
we cannot properly evaluate the juvenile court’s exercise of its discretion
because its ruling was expressly based on inaccurate facts. As the mother correctly points out, the
juvenile court’s ruling contained three critical factual errors. The visitation order prior to the court’s
ruling was a minimum of one visit per week,
not, as the court stated, one visit per month. The “visitation that has been occurring” was
twice a week, not, as the court
stated, twice a month. The juvenile court’s ruling did not, as the
court stated, “increase” the mother’s visitation; it decreased her
visitation. These were not immaterial
mistakes. If the juvenile court had
really intended by its ruling to “increase” the mother’s visitation to “reflect
the visitation that has been occurring,” it would have granted the mother
visitation twice a week, not twice a month.
Due to these factual errors, we find the juvenile court’s ruling fatally
defective.

The
mother also claims that the juvenile court’s order was an abuse of discretion
because it was not in the children’s best interest. We do not agree with this contention. The juvenile court could have concluded that
a temporary reduction in visitation was merited while the children continued to
adjust to their new living situation, particularly in light of the mother’s
recent harassment of Anthony and his girlfriend. However, due to the court’s misunderstanding
of the facts, we cannot discern whether the court had a proper or an improper
basis for its ruling.

Consequently,
the appropriate remedy is to remand the matter to allow the juvenile court to
reconsider its ruling with an accurate understanding of the facts. Although the August 2012 interim visitation
order has presumably been replaced by a new order at the October 2012 hearing,
we cannot know whether the August 2012 order influenced subsequent visitation
orders by establishing a new status quo.
We therefore consider it appropriate to direct the juvenile court to
reconsider any subsequent visitation orders with a correct understanding of the
nature of the prior visitation orders and of the prior “visitation that has
[actually] been occurring.”



III.
Disposition

The
order is reversed.









_______________________________

Mihara,
J.







WE CONCUR:













_____________________________

Premo,
Acting P. J.













_____________________________

Bamattre-Manoukian, J.