In re E.E. CA4/1

• Court: California Court of Appeal
• Decided: February 17, 2016
• Docket: D068547
• Status: Unpublished

Opinion

Filed 2/17/16 In re E.E. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re E.E., et al., Persons Coming Under the Juvenile Court Law. D068547 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J519168 A, C) Plaintiff and Respondent,

v.

LUZ J.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Sharon

Kalemkiarian, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and

Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula J. Roach, Senior Deputy County Counsel, for Plaintiff and

Respondent.

Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and

Beth Ploesch for Minor.

Luz J. (Mother) appeals from a juvenile court visitation order issued after the court

assumed dependency jurisdiction over her children. Mother contends the court

improperly delegated its authority to determine the nature and frequency of her visits

with her 12-year-old son (E). We reject Mother's contentions and affirm.

FACTUAL AND PROCEDURAL SUMMARY

Mother has three children; each has a different father. Mother challenges the trial

court's visitation ruling only as to the oldest child (E). We therefore omit facts relating to

the other children.1

In March 2015, the San Diego County Health and Human Services Agency

(Agency) filed dependency petitions alleging 12-year-old E and his two younger sisters

were at substantial risk of physical harm if they remained with Mother. E's petition

alleged that Mother and her current spouse (E's stepfather) had engaged in mutual acts of

domestic violence while E was present. The supporting documents also contained

information showing Mother abused drugs and alcohol and had attempted to jump out of

a vehicle while she was driving and while E was in the car.

1 Mother also filed a notice of appeal as to her youngest daughter, but she asserts no error pertaining to this daughter. We thus dismiss Mother's appeal as to her daughter. 2 After a detention hearing, the court found a prima facie showing Mother was

unable or unwilling to properly care for E, and continued care in the home was contrary

to E's welfare. The court stated these findings were based "primarily on the evidence in

the report showing issues of domestic violence and substance and alcohol abuse,

endangering the health, safety, and welfare of the children." The court placed E with his

paternal aunt and uncle. E's father (Father) had been in prison for a manslaughter

conviction since E was an infant. The court ordered that Mother be provided supervised

visitation with E.

At a hearing held the next month, the court found by clear and convincing

evidence the jurisdictional allegations to be true. (Welf. & Inst. Code, § 300, subd. (b).)

At the hearing, the Agency indicated its intent to continue E's placement in the paternal

relatives' home where E was doing well. Mother challenged this placement, requesting E

be placed with E's stepfather's father. The court set a contested disposition hearing for

May 28.

At the May 28 hearing, Mother's counsel was present but Mother did not appear

(although she had received notice). E was present with his counsel. Father was present

with his counsel. The court stated it had read and reviewed the detention,

jurisdiction/disposition, and updated reports. These reports summarized the violence that

had occurred in E's presence while he was living with Mother; the fact that E had been a

victim of some of the violence by his stepfather; Mother's alcohol and substance abuse;

and Mother's inappropriate behaviors towards her children.

3 In her most recent report, the Agency social worker recommended that Mother's

visitations with E occur only in therapeutic settings because the recent visits have had a

negative effect on E and his emotional stability. According to the social worker, Mother

had missed numerous visits causing emotional stress for E, and when Mother did visit,

she acted inappropriately and had no insight into the harm she has been causing E.

Mother's inappropriate actions included discussing adult topics with him, telling him he

needs to lose weight, and suggesting E was to blame for breaking up the family. After

these visitations, E became depressed, felt negative about himself, and acted out.

According to the social worker, Mother is not stable, and "has not taken any

responsibility for her actions or any statements that she has made towards E . . . ."

At the hearing, the social worker testified (by a stipulated offer of proof) that

Mother had missed four recent scheduled visits. The social worker said E is in therapy

and is reluctant to continue in-person visits with Mother, but he is willing "to do

supervised phone calls and supervised Skype visitation . . . ." The social worker also

suggested Mother send letters and drawings to E.

Based on this record, the Agency's counsel requested the court to "order

supervised visitation with discretions," noting the record showed "supervised visitation

for now is the phone calls and the letter writing and Skype . . . and we are working on the

[in]-person component . . . supervised visitation."

Mother did not present any affirmative evidence. But Mother's counsel disagreed

with the Agency's plan to begin with Skype visits and urged the court to immediately

order "supervised in-person visitation between her and [E]." Counsel argued:

4 "It is very important to [Mother] that [she] see her son face-to-face . . . and that they have an opportunity to begin repairing their relationship. [¶] She is in agreement with conjoint therapy, given the facts of this case; that makes a lot of sense, but it would be detrimental to this family's ability to reunify, to the minor, and would be unfair to my client to at this point, simply stop face-to-face visitation. . . . [¶] And unless there's some legal detriment that should prevent face-to-face contact it is always a good idea. In this case, it certainly is. Skype contact and letters and phone calls are great. But we believe that this mother and this son should see each other frequently to begin the process of healing at this stage."

Mother's counsel also said she "understand[s] where [E is] coming from [in not wanting

in-person visitations], but children aren't really the ones who get to make decisions in this

court about the extent of contact with their parents."

E's counsel responded that he agreed "the case law is really clear . . . that a minor

doesn't get to delegate or choose the visits." But he asserted the proposed plan is not

based on E's preferences and instead reflects an attempt to meet E's current mental health

needs. E's counsel urged the court to adopt the Agency's plan, noting it contains

flexibility to meet changing circumstances of the mother-son relationship:

"The Court would be offering supervised visits with some modality of those visits. And at this juncture, we also have to pay attention to the emotional needs of the minor [referring the court to the social worker's supplemental report].

"And . . . I certainly would hope that with conjoint therapy and . . . Skype or phone visits, that that relationship gets rebuilt. The Court is not creating a barrier to the mother's ability to visit the minor by allowing those visits and somehow saying, okay, let's work with baby steps at this time and work that relationship up to a point where the face-to-face visitation can be beneficial to all."

After considering the evidence and arguments, the court agreed with the Agency

that visits should begin on a limited electronic basis and that in-person visits could then

5 resume once the relationship improves or stabilizes. In explaining its reasoning, the court

stated it agreed that E could not be in charge of the visitation decision, stating: "It is

never a good idea to let kids be in control of what happens because you're a kid." But the

court made an express finding that "it would be abusive at this point to force [E] to see

his mother in a direct face-to-face supervised visit because I do believe, based upon the

evidence that I have, that her behavior vis-à-vis [E], has been very harmful and

disturbing." (Italics added.) The court said, "I also believe [Mother] loves him and she

wants to see him and she wants to have interaction, but the plan as laid out makes sense,

and that's what I'm going to order." The court concluded: "So the visitation between [E]

and his mom will be supervised. At this time it will be phone calls, Skyping, letters and

photos that will be sent to the social worker. And then upon the recommendation of . . .

E's therapist, we can go to some family therapy." The court also stated it would add a

drug testing component to Mother's reunification plan.

At the end of the hearing, the court found that clear and convincing evidence

supported E's removal from Mother's custody under applicable statutes. (See Welf. &

Inst. Code, § 361, subd. (c)(1).) The court ordered that Mother's visits with E be

supervised, and that the Agency social worker would have discretion to permit

unsupervised and/or overnighkt visits with 60-day advance notice to E's counsel. The

court also stated: "[W]e want to be sure it is clear that the visitation will be [initially]

supervised with his mother as for the terms we have already laid out. Only in-person

visits upon a recommendation by the therapist to the social worker to move to that next

level. And I give the social worker discretion to do so." (Italics added.)

6 After the court made these rulings, the court asked whether counsel had any

questions. Mother's counsel responded: "Your Honor, does the Agency have discretion

to begin providing in person visitation between [E] and my client should the Agency and

[E] agree to it?" The Court replied: "Yes absolutely. And the standard discretions to lift

supervision and allow overnight visits with notice, 60-day trial visit with concurrence.

But as to mom's supervised visits, yes, the Agency has discretion when it feels it is

appropriate to do so." (Italics added.)

Regarding visitation, the written minute order stated: "Mother may have

supervised phone contact, and may send the minor letters and pictures through the social

worker. Mother may have supervised in-person visits only when it is recommended by

the therapist to move it to that level. The Agency has discretion to allow Mother

unsupervised and overnight visits with notice to minor's counsel, and a 60-day trial visit

with concurrence of minor's counsel." (Capitalization omitted, italics added.)

DISCUSSION

We begin by stating what is not at issue in this appeal. Mother does not challenge

the court's findings that: (1) clear and convincing evidence supported that E should be

removed from her custody because there was a substantial risk of danger to his physical

health and/or that he was suffering severe emotional damage in her care, and there are no

other reasonable means to protect E; (2) it would be "abusive" to E to require in-person

visits between E and Mother (at the time of the hearing); and (3) Mother's visitations with

E must be supervised until the Agency social worker determines unsupervised visits are

appropriate.

7 Mother's primary appellate contention instead is that the court erred because it

delegated to the therapist the decision as to when to elevate Skype visitations to

supervised in-person visitation. (See In re Donnovan J. (1997) 58 Cal.App.4th 1474,

1476 [impermissible to delegate visitation decisions to therapist].) The Agency counters

that the juvenile court made "clear" that it was providing the social worker—and not the

therapist—the discretion to "enhance and elevate the mother's visits."

We recognize the court made certain conflicting statements regarding who had the

authority to move the Skype visits to supervised in-person visits. At several points, the

court suggested that in-person visits were permitted only upon the therapist's

recommendation or approval. But at the conclusion of the hearing, after Mother's counsel

asked for clarification, the court specifically identified the Agency as the entity that had

the authority to make this decision. Viewing the record as a whole and reading the

court's statements in context, we conclude the court provided the Agency social worker

(and not the therapist or E) the discretion to elevate the Skype visits to in-person visits,

and that this discretion was to be exercised after consulting E and E's therapist. To the

extent the written order did not capture this clarification, the court's oral pronouncements

control. (See In re A.C. (2011) 197 Cal.App.4th 796, 800; In re Aryanna C. (2005) 132

Cal.App.4th 1234, 1241 & fn. 5.)

Based on this conclusion, there was no improper delegation. The juvenile court

has the sole authority to decide whether a parent should have visitation rights with a

dependent minor. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373 (Moriah).) But

the court "may delegate to the . . . [county] social worker the responsibility to manage the

8 details of visitation, including time, place and manner thereof. . . . Only when a visitation

order delegates to the . . . county welfare department the absolute discretion to determine

whether any visitation occurs does the order violate the statutory scheme and separation

of powers doctrine." (Id. at p. 1374; accord Christopher D. v. Superior Court (2012) 210

Cal.App.4th 60, 72-73 (Christopher).) In making these time/manner/place visitation

decisions, the child protective agency is obligated to "act[ ] as an arm of the court in the

best interests of the minor" (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1234), and is

fully "accountable to the court" (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1166).

After the court has found visitation appropriate, for judicial economy and practical

reasons a child protective agency is best suited to implementing the order and making

necessary modifications in the face of often rapidly changing circumstances. (See In re

Brittany C. (2011) 191 Cal.App.4th 1343, 1356 (Brittany); Moriah, supra, 23

Cal.App.4th at p. 1376.)

Under these principles, the court properly delegated to the Agency the authority to

decide when it was appropriate to elevate the electronic visits to in-person visits.

Because this delegation concerned the manner of the visits (in-person or electronic), the

court could properly defer this decision to the social worker based on the parties' progress

and the changing needs and interests of both Mother and E. Additionally, the court had a

reasonable basis to require the Agency to consider the wishes of E and the opinions of his

therapist in making its determination. The court and all parties understood the court's

visitation order was made with the stated goal of reestablishing a positive relationship

between Mother and E, while protecting E from further abusive conduct. Input from this

9 older child and his therapist would only promote better decisionmaking to reach these

objectives. (See Brittany, supra, 191 Cal.App.4th at p. 1358.)

To the extent Mother argues the trial court did not have the discretion to initially

order Skype visitation rather than in-person visitation, the argument is without merit.

A juvenile court's visitation orders "must be viewed in the context of the family

dynamics in play." (Brittany, supra, 191 Cal.App.4th at p. 1356.) In this case, the minor

was a preteen who did not want to spend time with Mother because she had been

emotionally abusive to him. The social worker and therapist concurred that it would be

detrimental to this child to continue the in-person visitations until Mother gained some

insight into her behavior that was damaging her son. The record makes clear that all

parties were attempting to repair the relationship by taking "baby steps" to promote

healthy, structured contact between mother and son. The court acted well within its

discretion in concluding that this would best be achieved by starting with electronic

communications.

Mother devotes large portions of her appellate briefing to discussing the

qualitative differences between in-person visits and electronic visits. She notes that

electronic forms of communication often "lack the intimacy that only personal, one-on-

one contact can convey." She asserts: "Personal contact allows the full range of human

sensory power, including touch, smell, and even taste to come into play, whereas

electronic communication can, at best, include only sounds, and sometimes, sight."

Although accurate, these observations do not demonstrate error in this case. The

court found that at the time of the hearing allowing in-person visitation—even if

10 supervised—would negatively impact E's mental health. Based on this finding, the court

could have ordered no visitations until Mother was able to terminate her inappropriate

behaviors when in E's presence. (See In re Mark L. (2001) 94 Cal.App.4th 573, 580-581;

see also Brittany, supra, 191 Cal.App.4th at p. 1357.) But the court wanted to provide

some form of contact to promote the long-term relationship. The court's decision to do so

by permitting electronic communications was not an abuse of discretion. Although we

agree electronic visits (whether on a computer/phone screen or by telephone) are not the

same as personal visits, we reject Mother's argument that a court has no discretion to

order the more limited electronic visits under any circumstances. A court may order this

form of communication if the evidence shows the visits are in the child's best interests

and would promote reunification goals.

We also reject Mother's contention that because electronic forms of visits are

different from in-person visits, a court cannot delegate the decision when to elevate those

visits to an Agency social worker. Mother does not challenge the social worker's

authority to decide when in-person supervised visits should change to unsupervised

overnight visits. There is no logical distinction between this decision and the decision to

move from electronic visits to supervised in-person visits.

Mother also contends the court erred because the visitation order was improperly

vague as it did not identify the frequency and duration of the Skype visits. This argument

is not supported by applicable law. A juvenile court has the discretion to order

reasonable visits and to permit the social services agency to decide the frequency and

duration of the visits in conjunction with the parent, child, and the child's caretakers.

11 (See Christopher, supra, 210 Cal.App.4th at p. 72; Moriah, supra, 23 Cal.App.4th at p.

1376.) The evidence showed that E played on a soccer team and was a 12-year-old who

presumably had a busy school schedule. The evidence further showed that Mother had

missed numerous scheduled visits and was difficult to reach. Although Mother's counsel

argued that Mother wanted frequent visitation, there was no evidence to support this

assertion. She did not attend the disposition hearing to personally assert an interest in

visitation or state a preferred visitation schedule. Given these facts, the court could

reasonably decide that the Agency should work out the details of the visitation order to

respond to the particular family members' schedules, availabilities, needs, and desires. If

Mother or her counsel believes the Agency is not responding to her needs pertaining to

the visitation schedule, Mother has the option of bringing this issue before the court.

DISPOSITION

Order affirmed.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

AARON, J.