In re A.C. CA3 ( 2021 )

Filed 3/25/21 In re A.C. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
In re A.C. et al., Persons Coming Under the Juvenile C092444
Court Law.
YOLO COUNTY HEALTH AND HUMAN (Super. Ct. Nos. JVSQ193242,
SERVICES AGENCY, JVSQ193243)
Plaintiff and Respondent,
v.
R.C.,
Defendant and Appellant.
Mother, R.C., appeals from the juvenile court’s six-month review order
concerning her children A.C. and Z.C., arguing: (1) the Yolo County Health and Human
Services Agency’s (Agency) failure to provide mother with reasonable visitation
precludes the court’s reasonable service and reasonable efforts findings; (2) the court’s
minimal progress finding should be reversed for the same reason; (3) the juvenile court
1
improperly delegated to the minors the power to determine whether visitation would
occur and abused its discretion in providing visits with Z.C. would continue via Zoom;
and (4) the juvenile court erred in limiting mother’s educational rights without “a
concrete reason why such a limitation was necessary.”
We concur that the juvenile court erred in ordering visitation that was expressly
subject to the wishes of the minors and limiting mother’s education rights as to Z.C. only.
Because the visitation order has already been modified, we will remand for further
proceedings to determine whether it was necessary to limit mother’s educational rights as
to Z.C. only. We otherwise affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The Petition and Detention
On October 21, 2019, the Agency filed a Welfare and Institutions Code section
300 (statutory section references that follow are to the Welfare and Institutions Code
unless otherwise stated) petition alleging A.W. (age 17), A.C. (age 14), and Z.C. (age 8)
had suffered or were at substantial risk of suffering serious physical harm caused by
mother’s physical abuse of the minors (§ 300, subd. (a)). It alleged mother hit A.W. with
a closed fist and a hanger on October 16, 2019, causing significant bruising on A.W.’s
face, ear, and to the back of her neck. A.C. and Z.C. witnessed this incident. All minors
individually feared returning to mother’s home and reported that “mother routinely hits
them with a whip, a hanger, a brush, or her closed fists.” A.W. feared mother would kill
her. Mother’s short temper and threats of physical punishment as well as physical
punishment put the minors at risk of injury. Mother also withheld food as a punishment.
The Agency expressed concern about the level of mother’s violence, as well as her lack
of insight into the impact of this ongoing violence in the home. This petition was
amended after the minors’ detention to include allegations of mother’s failure to protect
A.C. and Z.C. (§ 300, subd. (b)(1)).
2
The severity of the incident resulting in Agency intervention was underscored in
the detention report, which reflected mother beat A.W. because of an argument over the
television, hitting her across the face with a hanger (ultimately breaking it on her),
throwing a cup at her, and then climbing on top of her and punching her repeatedly on the
head. Two doctors diagnosed A.W. with “post-concussive syndrome” as a result of the
beating. A.W. worried her mother truly wanted to hurt her and might kill her given
mother’s reported dreams wherein she did just that. She reported that mother coerced her
siblings to lie about their physical abuse and cover up their bruises.
A.C. and Z.C. confirmed witnessing the altercation between A.W. and their
mother. Both minors confirmed mother physically hit them, relaying specific instances
of abuse involving fists or a whip. Marks were observed on Z.C.’s back. Mother told
Z.C. to hide signs of his abuse, which he did with clothes. Maternal grandparents were
aware of the abuse and tried unsuccessfully to intervene.
Mother took medicine for social anxiety, but denied mental health or substance
abuse problems. Mother denied hitting the minors with a closed fist, a hanger, a whip, or
a brush. Mother admitted to spanking A.W. and taking away her phone. She also
admitted her children were scared of her, but denied that any of the injuries observed on
the minors were because of her, instead providing ambiguous explanations that the
injuries occurred at school or during sports. Mother denied she intended to threaten A.W.
by telling her about her dream.
All minors reported being afraid of mother at their first visitation and displayed
signs of fear through facial expressions and body language. A.C. and Z.C. acquiesced to
mother’s request for a hug, but A.W. refused.
The minors were detained at the hearing on October 22, 2019. The juvenile court
ordered mother receive three hours a week of supervised therapeutic visits to begin after
the minors were enrolled in therapy and after mother enrolled in anger management
and/or individual counseling. The court awarded the Agency authority to accelerate
3
visitation as appropriate. A combined jurisdiction and disposition hearing was set for
November 26, 2019.
At the November 26, 2019 hearing, the juvenile court continued the contested
jurisdiction/disposition hearing until December 19, 2019. The contested
jurisdiction/disposition hearing was continued again until January 13, 2020, in light of
mother’s desire to retain private counsel.
Jurisdiction and Disposition
The December 19, 2019, jurisdiction and disposition report recommended the
juvenile court sustain the allegations of the amended petition for all minors and grant
A.W.’s father full legal custody of her. The report further recommended the court
declare A.C. and Z.C. dependents and provide reunification services to mother. In
addition to the facts supporting detention, the report also described an incident where
mother hit A.W. in the face with a pan. Mother admitted striking A.W. with a hanger on
one occasion and threatening all three minors with a hanger and whip. Mother also
admitted to open hand spanking A.C. and Z.C. on their bottoms.
The social worker spoke with Z.C., who confirmed his previous statements of
mother’s physical abuse, which he said occurred “ ‘a lot,’ ” but clarified that he had only
heard his mother’s confrontation with A.W. Z.C. told his maternal grandparents mother
hit him, and they told him to obey mother. Z.C. was glad everyone was engaged in
counseling and thought things would be safer at home if mother received treatment for
her anger. Z.C. later said that he wanted to go home and planned to stay safe by not
upsetting mother.
A.C. disclosed mother had been physically abusing her for a number of years
(using a hanger, whip, and spatula) and that A.C. did not think she would be safe living
with mother. Maternal grandparents’ home would also not be safe, because they “would
4
not hold boundaries with her mother.” She also disclosed receiving a text from her
mother before the interview that stated, “ ‘don’t lie for [A.W.]’ ”
Mother denied her abusive behavior at her November 1, 2019, meeting with the
social worker, complaining about the previous social worker and downplaying the
incident. Mother accused A.W. of making up the allegations for personal reasons.
Mother initially denied hitting with a fist, brush, or hanger, stating she only threatened
spanking and sometimes used curse words. However, mother later admitted using a
hanger for discipline approximately two times per month, but denied leaving marks. She
also admitted hitting A.W. on the back with an open fist. Mother denied ever
withholding food. When confronted with the minors’ statements, mother agreed it was a
problem that the minors feared her. Mother agreed to obtain mental health services and
parent education, the first of which she was already receiving.
Mother met with the social worker again on November 8, 2019, arguing Z.C. and
A.C. should be immediately returned because there was no proof supporting the
allegations. When confronted with that proof (including her own previous admissions),
mother protested that “she did not leave any marks nor injuries.” Mother refused to
discuss prior reports that she had been subject to psychiatric holds under section 5150 in
2008 and 2012 and denied that she had any current mental health problems.
Mother’s request to select and arrange counseling for the minors was denied. The
social worker worked diligently to secure therapists for the children and initiate therapy
so that the clinicians would be enabled to make recommendations regarding the ordered
therapeutic visitation. This process was difficult and complicated by Z.C.’s escalating
behaviors, necessitating Z.C.’s enrollment in WRAP services. The social worker kept
mother informed of this progress. A.C. was receiving counseling, although her therapist
recently switched because of a conflict. Both A.W. and A.C. separately stated a
preference not to visit their mother or their grandparents. Mother consistently requested
5
visits with the minors and wrote letters to them. A.C. and A.W. refused mother’s letters,
but Z.C. accepted his letter and wrote back.
The Agency referred mother for counseling, anger management, and parenting
classes, which mother had started. According to the head of mother’s anger management
program, Bobby Stewart, mother denied abusing her children and portrayed herself as a
victim. “[M]other appears to have deep denial about her anger issues, struggles with
managing anger and has not admitted any behaviors or issues where she has struggled
with managing her anger or frustration.” Mother was engaged in weekly therapy with
Melissa King, MFTI, but the social worker had not been able to communicate with King
regarding mother’s progress. The Agency further recommended that mother undergo a
psychological assessment given her “denial and current decision-making.”
In light of this information, the Agency recommended against immediately
returning the minors to mother, who continued to be in deep denial of her actions and the
corresponding effects on her children. The Agency also recommended against returning
the minors to the maternal grandparents: (1) who were aware of the minors’ abuse, but
failed to act to protect them; (2) who had struggled to follow visitation guidelines,
whispering to the children and making promises; and (3) with whom neither A.W. nor
A.C. wanted to live. The Agency recommended declaring A.C. and Z.C. dependents and
maintaining them in their out-of-home placements, which was a foster home for A.C. and
a group home with WRAP services for Z.C.
At the January 13, 2020, contested jurisdiction and disposition hearing, mother
waived her right to testify and present evidence, electing to submit on the petition. The
court sustained the petition under both section 300, subdivisions (a) and (b). The court
awarded full legal custody of A.W. to her biological father and dismissed the case as to
A.W. only. As to A.C. and Z.C., the court adopted the findings and orders prepared by
the Agency for disposition and set the matter for six-month permanency planning on
6
May 4, 2020. The goal of the case plan was reunification with mother. Mother’s
visitation order remained the same.
Mother’s case plan directed her to obtain a psychological assessment to determine
which mental health services would be best for her. The plan also directed mother to
participate in transparent individual counseling to identify what may be impairing her
ability to safely parent. This included that mother “develop an understanding of what
constitutes physical and emotional abuse, identify how her past behaviors have impacted
her children’s physical and emotional health and safety, and coping skills to effectively
manage frustration and anger in a healthy, nonthreatening, [and] positive manner.”
Mother was directed to openly and honestly participate in an anger management/domestic
violence program for the same reason. Finally, mother was directed to participate in
parent education classes to obtain the skills necessary to parent without being physically
and emotionally abusive.
Mother did not appeal this decision.
The Six-Month Review
Following continuances: (1) on the juvenile court’s own motion due to COVID-
19, (2) because of mother’s request due to her change of counsel, and (3) because of
mother’s request to get paperwork together, the contested six-month review hearing was
held on August 3, 2020. Leading up to this hearing, the Agency submitted a six-month
review report (filed April 30, 2020) and supplemental report (filed June 25, 2020), which
recommended against the return of the minors and for an additional six months of
reunification services.
The Agency reported, mother was on pre-trial release pending three charges of
infliction of corporal injury on a child (Pen. Code, § 273d, subd. (a)) and three charges of
abusing or endangering the health of a child (Pen. Code, § 273a, subd. (a)). Her
probation officer was satisfied with her performance on release, but relayed mother’s lack
7
of interest in that officer’s discussion encouraging mother to take responsibility for her
actions, as opposed to merely participating in her court mandated CPS services.
Mother completed her parent education classes, although her instructor Nancy
Chavez, opined that mother should engage in more classes to further her understanding of
“the importance of listening to her children and practicing safe discipline techniques.”
Ms. Chavez recommended mother “engage in counseling services to increase her insight
on the impact of her abuse on her children, take responsibilit[y] for her actions and work
through her own possible mental health issues.”
Similarly, mother’s first anger management instructor, Bobbie Stewart, reported
that mother made minimal progress and needed to continue taking classes “to work on
accountability, taking responsibility, gain insight as to her issues and why her children
were removed from her care.” While mother attended classes with limited participation,
she continued to deny she physically abused her children and accused her daughter of
lying. Stewart also worried whether mother suffered from mental health issues that
needed to be addressed. Ultimately, mother failed to successfully complete this program,
despite having attended 42 sessions, because mother refused to accept responsibility for
her actions requiring her treatment and failed to meaningfully participate in groups.
Mother’s second anger management instructor, Myrna Brady, confirmed mother’s
enrollment and participation in anger management classes consisting of an online
assessment and workbook exercises. She also reported that mother did not provide her
court documents or mother’s case plan. Repeated efforts to obtain a release of
information to provide Ms. Brady with the relevant information were unsuccessful.
Mother reported engaging in counseling since October 25, 2019, with Vanessa
King, MFTI, but numerous attempts to contact King to obtain information were
unsuccessful until June 2020. King reported that mother was learning new skills through
therapy, but continued to deny physically abusing her children.
8
At a February 26, 2020, meeting with mother to discuss her case plan,
reunification timeline, and services, etc., mother stated she would not complete her
psychological evaluation with the referred provider, although she could not say why.
Mother refused assistance in locating another provider and acknowledged receipt of the
requirements for any psychologist and examination.
Thereafter, mother hired psychologist Amy Kline in March to conduct the
assessment, but despite repeated requests of mother and Ms. Kline, the social worker was
not able to obtain a release of information so that Kline would have the Agency
information relevant to the court ordered examination. Ms. Kline also displayed
questionable professionalism and impartiality because Kline had met with mother five
times prior to contacting the Agency and made statements indicating a bias in mother’s
favor in communications with the social worker. Due to these concerns, Agency counsel
contacted mother’s counsel to warn that Ms. Kline’s work as then being conducted would
not comply with the case plan. Counsel provided contact information for two different
providers for mother to choose from to complete her court ordered assessment.
Rather than heeding the Agency’s warning, mother submitted a May 23, 2020
evaluation from Dr. Kline, which was prepared without the benefit of any information
from the Agency and which did not discuss the minors’ reported abuse by mother, nor
mother’s ongoing denial of those reports. According to this report, mother suffered from
anxiety and dependent personality disorder with avoidant personality traits and obsessive
compulsive personality features. The Agency told mother and her counsel that Kline’s
report failed to satisfy the case plan and directed mother participate in the court ordered
evaluation with one of two proffered providers.
According to the Agency, A.C. was doing well at her placement and school. She
began therapy in December 2019, wherein she worked on processing her trauma as well
as learning self-awareness and relaxation techniques. Both A.C. and her therapist agreed
she should continue her treatment. A.C. felt happy, stable, and comfortable at her
9
placement. Notably, A.C. exhibited distress following a CASA visit wherein her CASA
worker repeatedly told her that mother loved her, resulting in reassignment of that
worker.
Z.C. began individual therapy in December 2019, had successfully completed
WRAP services, was doing better in school, and his behavioral issues (including tantrums
wherein Z.C. kicked/hit others and/or destroys others’ property) were decreasing. In light
of this, the Agency moved Z.C. from a group home to a therapeutic foster home on
June 22, 2020. Z.C. was starting to open up regarding mother’s physical abuse, which he
had disclosed to his therapist, as well as group home staff, but had been unable to
therapeutically discuss. Z.C. was diagnosed with posttraumatic stress disorder and mild
oppositional defiant disorder. He suffered from nightmares, negative moods, and a
refusal to forgive unless the offending individual was first punished. Z.C.’s therapist
discussed his reports of abuse with mother, who denied the abuse, accused Z.C. of lying,
and demanded to question him about his reports. Z.C. volunteered a preference to live
with maternal grandparents, rather than mother.
Mother diligently visited Z.C., but had had no visits with A.C. Further
information regarding visitation will be discussed, post.
At the six-month review hearing on August 3, 2020, the Agency presented the
testimony of Christiana Ebere, the social worker, that the Agency recommended six more
months of reunification services. Ebere testified that mother engaged in a pattern of
participating in services, but failing to fully disclose the reason for the services, thus
precluding a focus on the issues that mother needed to address in order to be successful
with her services. Ebere also had difficulty communicating with mother, who refused to
speak over the phone without recording the conversations and demanded that
communication be in e-mail. However, mother’s e-mail communication was one-sided,
with mother contacting Ebere when she wanted something, but failing to respond to or
even acknowledge Ebere’s e-mails.
10
Ebere reiterated mother’s failures to comply with the case plan requirements as
previously described in the reports, including her failure to obtain a qualifying
psychological evaluation, her failure to acknowledge that she had abused the minors, her
failure to take responsibility for her actions in anger management resulting in her
discharge from her first anger management program, and her failure to provide her
successive anger management provider information concerning the need for services and
cooperate in obtaining releases so that such information could be shared. Mother’s
parenting class provider was concerned that mother may be suffering from untreated
mental health issues.
Ebere confirmed checking with A.C. monthly regarding visits with her mother, but
that A.C. had refused such visits. Z.C. struggled with Zoom visits with mother, often
having tantrums after being told it was almost time for visits. Z.C. continued reporting
mother’s abuse and expressed fear that if he was returned home, the abuse would resume
and mother will hide it so that no one would know. Given mother’s lack of progress,
continued denial of the reason for CPS intervention, possible mental health problems, and
the minors’ ongoing fear of mother, Ebere opined it would be detrimental to return the
minors to mother.
No further testimony was presented. Mother’s counsel argued for the immediate
return of Z.C. and for therapeutic visits to immediately commence with A.C. so that she
could be transitioned home as soon as possible. Counsel continued that mother had
diligently complied with her case plan by completing the psychological evaluation, anger
management, and parenting classes. Further counsel complained that the true issues
associated with Z.C.’s visits with mother was the Zoom medium, not mother herself, and
that he should be immediately returned to her so that she could demonstrate what she
learned from her services.
Z.C.’s counsel vehemently objected to his being returned to mother, highlighting
that mother still denied the abuse occurred and had avoided real progress in her court
11
ordered services. The Agency argued it was unquestionable that there would be a
meaningful risk to the minors if returned to mother, that mother had not meaningfully
participated in services, and that mother should be ordered to participate in a
psychological evaluation with Dr. Wilkenfield. The Agency continued that the minors
consistently maintained that mother abused them, and mother persisted in saying the
children are lying. The Agency recommended six more months of services.
Thereafter, the court found by clear and convincing evidence that returning the
minors to “mother would create a substantial risk of detriment to their safety, protection,
or physical or emotional well-being.” The court reasoned that mother had made minimal
progress even though she was taking classes because she failed to take responsibility for
her actions and continued asserting that the minors (who feared her) were lying. The
court ordered mother to comply with her case plan, including the execution of all
necessary releases of information and that mother participate in the psychological
evaluation with Dr. Wilkenfield. The court further found the Agency had complied with
the case plan and made reasonable efforts to return the minors, but that mother had “only
made minimal progress towards alleviating and mitigating the causes necessitating
placement.” The court adopted the Agency’s recommended findings and orders and set
the case for 12-month review on December 22, 2020. Mother timely appealed.
DISCUSSION
I
The Agency Provided Mother Reasonable Services
Mother does not challenge the adequacy of Agency plans to treat the issues
requiring the removal of her children by requiring that she participate in and referring her
for a psychological evaluation, parent education, anger management, and individual
counseling. Nor does she challenge the Agency implementation of these services.
Rather, she challenges whether she received adequate visitation with A.C. and Z.C.,
12
arguing the lack of visitation precluded the juvenile court’s reasonable services finding.
The Agency disagrees, arguing substantial evidence supports the juvenile court’s finding.
We will address mother’s arguments as to each minor in turn and find the evidence
supports the finding that the Agency provided reasonable visitation under the
circumstances.
A. The Applicable Law
“Family reunification services play a critical role in dependency proceedings.
(§ 361.5; [citations]; see 42 U.S.C. § 629a(a)(7).) At the dispositional hearing, the court
is required to order the agency to provide child welfare services to the child and his or her
parents. (§ 361.5, subd. (a).) Services ‘may include provision of a full array of social
and health services to help the child and family and to prevent reabuse of children.’
(§ 300.2.) Reunification services should be tailored to the particular needs of the family.”
(In re M.F. (2019) 32 Cal.App.5th 1, 13.) Visitation is an essential component of any
such services provided pursuant to the reunification plan. (In re Alvin R. (2003)
108 Cal.App.4th 962, 972; accord, In re M.F., at p. 16.)
“At each review hearing, if the child is not returned to his or her parent, the
juvenile court is required to determine whether ‘reasonable services that were designed to
aid the parent . . . in overcoming the problems that led to the initial removal and the
continued custody of the child have been provided or offered to the parent . . . ’
(§§ 366.21, subds. (e)(8) & (f)(1)(A), 366.22, subd. (a).) The ‘adequacy of reunification
plans and the reasonableness of the [Agency’s] efforts are judged according to the
circumstances of each case.’ [Citation.] To support a finding that reasonable services
were offered or provided to the parent, ‘the record should show that the supervising
agency identified the problems leading to the loss of custody, offered services designed to
remedy those problems, maintained reasonable contact with the parents during the course
of the service plan, and made reasonable efforts to assist the parents in areas where
13
compliance proved difficult . . . .’ ” (In re M.F., supra, 32 Cal.App.5th at pp. 13-14.)
The services provided do not have to be the best services that could have been provided,
rather they must have been reasonable under the circumstances. (See Elijah R. v.
Superior Court (1998) 66 Cal.App.4th 965, 969 [citing In re Misako R. (1991)
2 Cal.App.4th 538, 547].)
The standard to be applied to a reasonable services determination under section
366.21, subdivision (e)(8) where services to the parent are continued is unclear. The
statute does not say. (See 1 Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure
(2020) Part I Analysis, § 2.152 [noting where a § 366.26 hearing is not set, § 366.21,
subd. (f)(1)(A) does not specify which standard applies].) Under these circumstances, the
preponderance of the evidence standard normally applies. (See Katie V. v. Superior
Court (2005) 130 Cal.App.4th 586, 594 [citing Evid. Code, § 115].) However, assuming
without deciding that a clear and convincing evidence standard applies, we still find
substantial evidence supports the juvenile court’s order.
As recently explained by our high court: “When reviewing a finding that a fact
has been proved by clear and convincing evidence, the question before the appellate court
is whether the record as a whole contains substantial evidence from which a reasonable
fact finder could have found it highly probable that the fact was true. In conducting its
review, the court must view the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-
1012.)
B. Analysis
Because of the severity of the abuse and the minors’ trauma as demonstrated at
mother’s first supervised visit, the court ordered therapeutic visitation only after the
14
minors were enrolled in individual counseling and mother enrolled in anger management
and/or individual counseling. Mother did not object to this order entered at the detention
hearing on October 22, 2019.
The social worker acted diligently, and the minors were enrolled in individual
counseling by the originally scheduled disposition hearing on November 26, 2019. While
mother complained that she had not yet had any visits, the social worker explained that
the parties were waiting on word from the minors’ counselors that they were ready to
begin those therapeutic visits. Mother was reminded that she could file a noticed motion
if she wanted to change the court’s order, and the visitation order remained in place as
previously entered.
Mother’s visitation order remained the same following the contested jurisdiction
and disposition hearing on January 13, 2020 (three hours per week supervised),
recognizing that therapeutic visits with A.C. would only occur once cleared with her
therapist. Mother’s counsel confirmed, “Just to be clear, so it’s between the therapist, the
Department and [A.C.] as to when the visits will commence with the idea is hopefully
soon.” A.C.’s counsel clarified, “Consulting [with] the therapist . . . and I will ask for
them to consult me as well.” Mother’s counsel did not object to this arrangement,
stating: “Thank you.”
1. Visitation with Z.C.
Following this hearing, mother diligently visited Z.C. in person and later via video
chat as scheduled. These video chats were up to three hours once a week, but had to be
reduced to one hour a week after Z.C. complained that he was “overwhelmed with all the
video telephone call visitations.” Z.C. was displaying signs of anxiety and acting out.
He sometimes shut down during visits and refused to participate. On one occasion,
mother became upset when Z.C. tried to cut a video call short to go to the park. Mother
called the police complaining that Z.C. was in danger due to coronavirus, resulting in
15
Z.C.’s exclusion from park outings. Z.C. requested help informing his mother that he
wanted shorter visits. He was afraid to tell mother he did not want to visit, and when
Z.C. attempted to cut visits short, mother ignored his efforts. The reduction in video
visits also applied to grandparents and his siblings, which could be increased upon Z.C.’s
request.
Mother complains she was not afforded make-up visits and should not have been
forced to continue with online visitation following the end of Yolo County’s stay-at-
home order. However, she has not shown that it was unreasonable given the
considerations of the ongoing COVID-19 epidemic for the Agency to continue her
supervised visits in an online medium, nor did she seek relief from the court for any
perceived deficiency arising from the manner of those visits.
“On March 4, 2020, due to the outbreak of the COVID-19 virus, Governor Gavin
Newsom declared a state of emergency. On March 11, 2020, the World Health
Organization (WHO) declared COVID-19 a pandemic. On March 19, 2020, Governor
Newsom issued an executive order directing all Californians not providing essential
services to stay at home.” (In re M.P. (2020) 52 Cal.App.5th 1013, 1016.) Likewise, on
March 18, 2020, Yolo County issued a shelter-in-place order,1 ordering individuals to
stay home because one of the known ways to prevent the spread of COVID-19 is “to limit
interactions among people to the greatest extent practicable.” In recognition of the
ongoing crisis, the Judicial Counsel promulgated an emergency rule meant to address
visitation in juvenile dependency proceedings, which would expire 90 days after the
lifting of the state of emergency related to COVID-19. (See In re M.P., at p. 1017; Cal.
1 We grant mother’s request for judicial notice of this order, but find it unnecessary to
take judicial notice of the Yolo County April 30, 2020, press release also attached to
mother’s request.
16
Rules of Court, appen. I [Emergency Rules Related to COVID-19], rule 6(d).) However,
the COVID-19 state of emergency endures.
Emergency Rule 6(c)(7) states in pertinent part, “During the state of emergency
related to the COVID-19 pandemic, previously authorized visitation must continue, but
the child welfare agency is to determine the manner of visitation to ensure that the needs
of the family are met. If the child welfare agency changes the manner of visitation for a
child and a parent or legal guardian in reunification, . . . the child welfare agency must
notify the attorneys for the children and parents within 5 court days of the change. All
changes in manner of visitation during this time period must be made on a case by case
basis, balance the public health directives and best interest of the child, and take into
consideration whether in-person visitation may continue to be held safely. Family time is
important for child and parent well-being, as well as for efforts toward reunification.
Family time is especially important during times of crisis.”
This rule authorized an attorney for a minor or parent to seek modification of the
changed manner of visitation and made clear that the moving party bears “the burden of
showing that the change is not in the best interest of the child or is not based on current
public health directives.” (Cal. Rules of Court, appen. I, Emer. Rule 6(c)(7)(A).)
Even assuming, as mother now argues, that “better” visitation, such as visits in an
outdoor fora, could have been provided at some point, perfection in services is not
required. (Elijah R. v. Superior Court, supra, 66 Cal.App.4th at p. 969; In re Misako R.,
supra, 2 Cal.App.4th at p. 547.) Emergency Rule 6 expressly authorized the Agency to
modify the manner visitation, taking in consideration the public health directives, best
interest of the child, and safety considerations. (Cal. Rules of Court, appen. I, Emer. Rule
6(c)(7).) We are unconvinced that the record shows that the Agency failed to abide by
this directive. Nor are we convinced by mother’s argument in her reply brief that the
Agency’s alleged failure to notify her counsel within five court days that it was acting
pursuant to its emergency authority provides additional support for mother’s argument
17
that she was not afforded reasonable reunification services because she was denied due
process and an opportunity to be heard. It is undisputed that mother failed to challenge
the Agency’s decision to require virtual visits via the emergency rules (Cal. Rules of
Court, appen. I, Emer. Rule 6(c)(7)(B)) or via a noticed motion for specific enforcement
of her court ordered visitation. In the absence of such complaint, and in light of the
reasonable visitation services provided, the record does not show the Agency abused its
discretion to set the manner of visitation.
Further, mother’s argument that she should have been provided make-up visits
ignores that her right to visitation may be curtailed in light of the “well-being” of Z.C.,
who was clearly distressed by his three hour long virtual visits with mother, as shown by
his acting out prior to visits and refusal to participate in those visits. (See Serena M. v.
Superior Court (2020) 52 Cal.App.5th 659, 673 [“visitation must be as frequent as
possible, consistent with the well-being of the child”]; § 362.1, subd. (a)(1)(A).) Thus, it
was reasonable for the social worker and Z.C.’s caregiver to limit his online visitation
time on a weekly basis. Under those circumstances, it is clear that additional visits to
“make-up” any time lost in the shorter visits would not have been in Z.C.’s interest, and
thus, it was reasonable to refuse them.
2. Visitation with A.C.
Mother argues the Agency failed to make reasonable efforts to overcome A.C.’s
opposition to visiting. Mother had no visits with A.C. in this reporting period because
A.C. continued to refuse such visitation, affirming her choice in monthly meetings with
the social worker. A.C.’s therapist confirmed that A.C. had not indicated she wanted to
visit with mother. Mother had been previously advised of her right to request a change
order, but did not request a different visitation order or enforcement of the court’s prior
order for a three-hour supervised therapeutic visit each week. (See In re Sofia M. (2018)
24 Cal.App.5th 1038, 1046 [when child cannot be persuaded to visit pursuant to a
18
lawfully issued visitation order, it is incumbent upon the parent to move for juvenile
court intervention].)
However, as of the June 29, 2020 addendum, A.C. had recently expressed interest
in a face-to-face therapeutic meeting with mother so that A.C. could tell mother how
mother’s actions impacted and continued to impact her. The social worker coordinated
with both A.C.’s and mother’s therapists regarding such a meeting, and mother’s
therapist indicated pre-meeting coaching with mother would be required so that mother
would be able to “stay in her space, stay present and absorb what her child is going to say
to her.” While, A.C. was concerned about signing a release so information could be
shared with mother’s therapist because she worried such information might be disclosed
to mother, there is no indication this concern prevented the meeting.
Thus, here, A.C. who had been in therapy since late 2019, had finally progressed
to a point in June of 2020 where she was ready to contemplate a therapeutic session with
her mother. Mother complains that this session had not occurred as of the August 3, 2020
six-month status hearing. However, we do not find the delay in setting up this meeting
unreasonable. On the contrary, mother’s own therapist requested time to prepare mother
for this difficult meeting. Given mother’s continuing denial that she had physically
abused her children, it is manifestly reasonable that mother required coaching before
meeting with A.C. to discuss that abuse and its impact on A.C. The reasonable efforts by
A.C.’s social worker as outlined above distinguishes this matter from In re Alvin R.,
supra, 108 Cal.App.4th at pages 972-973, where the social worker’s failure to timely aid
the family in securing individual therapy and apparent ignorance of successive orders
seeking to facilitate therapeutic visitation precluded a finding of reasonable services. We,
therefore, conclude that substantial evidence supports the juvenile court’s finding that
reasonable services were provided to mother.
19
II
Mother’s Minimal Progress
Mother complains the Agency’s lack of reasonable visitation services invalidates
the juvenile court’s determination that she had made only minimal progress towards
eliminating the need for the minors’ placement. At each six-month review hearing the
juvenile court must determine: “The extent of progress that has been made toward
alleviating or mitigating the causes necessitating placement in foster care.” (§ 366, subd.
(a)(1)(E).) Having previously rejected mother’s challenge to the visitation services
provided her, we highlight the substantial evidence supporting the court’s minimal
progress finding. (See J.H. v. Superior Court (2018) 20 Cal.App.5th 530, 535 [progress
finding is evaluated by substantial evidence standard].)
Mother failed out of her first anger management program, despite having attended
42 sessions, because mother refused to accept responsibility for her actions requiring her
treatment and failed to meaningfully participate in groups. Her instructor reported
mother’s minimal progress and continuing need “to work on accountability, taking
responsibility, gain insight as to her issues and why her children were removed from her
care.” While mother attended classes with limited participation, she continued to deny
she physically abused her children and accused her daughter of lying. Stewart also
worried whether mother suffered from mental health issues that needed to be addressed.
Mother failed to sign the releases necessary to provide her second anger
management instructor with the Agency information necessary to assure mother was
receiving targeted treatment, which had consisted of an online self-reported assessment
and workbook exercises. While mother had learned some new skills through individual
therapy, mother’s therapist reported her continued denial of any physical abuse of her
children.
20
Further, while mother completed her parent education classes, her instructor
worried that mother needed more classes to further her understanding of “the importance
of listening to her children and practicing safe discipline techniques” and that mother
needed to “engage in counseling services to increase her insight on the impact of her
abuse on her children, [and] take responsibilit[y] for her actions.” This provider worried
that mother was suffering from untreated mental health issues. Mother was also ordered
to participate in a psychological evaluation, but knowingly failed to obtain a
psychological evaluation that would comply with her case plan.
Moreover, the Agency had difficulty communicating with mother, who refused to
speak over the phone without recording the conversations and demanded that
communication be in e-mail. However, mother’s e-mail communication was one-sided,
with mother contacting the social worker when she wanted something, but failing to
respond to or even acknowledge the social worker’s e-mails. Mother further engaged in a
pattern of participating in services, but failing to fully disclose and/or inaccurately
disclosing the reason for the services, thus precluding a focus on the issues that mother
needed to address in order to be successful with her services.
It was against this backdrop that the juvenile court found mother had made
minimal progress even though she was taking classes because she failed to take
responsibility for her actions and continued asserting that the minors (who feared her)
were lying. Substantial evidence supports the juvenile court’s finding. (J.H. v. Superior
Court, supra, 20 Cal.App.5th at p. 535.)
III
The August 3, 2020 Visitation Order
Mother complains the juvenile court’s August 3, 2020, visitation order from the
six-month review hearing is in error because: (1) she should have been allowed to visit
with Z.C. in person and (2) the court improperly delegated its power to determine
21
mother’s rights to visitation under In re S.H. (2003) 111 Cal.App.4th 310 and In re
Julie M. (1999) 69 Cal.App.4th 41. Mother requests we remand the matter so that the
juvenile court may conduct a new visitation hearing.
At the six-month review hearing, Z.C.’s counsel argued for all visits with Z.C. to
be via Zoom. Counsel explained he was placed in a foster home with a high-risk family
member and that family had already lost another family member to COVID-19. Further,
Z.C. was doing well in this placement, necessitating the Zoom visitation. Counsel further
requested that the number of visits between Z.C. and A.C. increase, that the number of
visits with mother be reduced, that Z.C. be allowed to decide whether he wanted to visit
mother, and that he should not be forced to visit. The Agency had no objection to these
requests. Mother’s counsel objected for the record: (1) that mother requested in-person
visits, (2) to discretion for visits not to occur, and (3) requested as many visits as
possible. Mother complained the quality of visits with Z.C. would improve if conducted
in person where he could not get distracted or avoid the video visit.
The court ruled, “I do think all visitation for both [A.C.] and for [Z.C.], is
completely up to them. If they don’t want to visit with Mom, they don’t have to. I’m not
going to force either one of those children to visit with their mother if they don’t want
to.” Z.C.’s visitation would continue on Zoom. That the minors would be allowed to
choose whether to visit with mother was further reflected in the court’s minute order
which stated, “visits with mother are by children’s choice.” (Italics added.)
The juvenile court altered this visitation order on October 22, 2020, ordering that
A.C. would not have any visits with mother because those visits would be detrimental.2
Also on October 22, 2020, the court ordered mother would have one hour per week of
Zoom visits with Z.C., which could transition to in-person visits providing they could be
2We grant respondent’s request for judicial notice of the Yolo Court’s October 22, 2020
minute order.
22
safely conducted. Further, visits could increase following consultation with Z.C.’s
counsel.
Mother has failed to persuade us that the juvenile court abused its discretion in
ordering that mother’s visits with Z.C. should continue via Zoom. Z.C. was successfully
stepped down into a therapeutic foster home with a high-risk family member and a recent
death in the family due to COVID-19. We see no abuse in the juvenile court balancing
mother’s desire for in-person visits with the dangers associated with the pandemic and
Z.C.’s interest in maintaining his placement. (See In re R.R. (2010) 187 Cal.App.4th
1264, 1284 [court’s visitation order balancing the rights of parent with well-being of
minor is reviewed for an abuse of discretion].)
However, we do concur that a visitation order giving A.C. and Z.C. sole discretion
to determine whether any visits with mother would occur was error. (See In re S.H.,
supra, 111 Cal.App.4th at pp. 317-320 and In re Julie M, supra, 69 Cal.App.4th at
pp. 48-51.) Nonetheless, we find it unnecessary to remand for the requested visitation
modification hearing because it appears that such a hearing has already taken place and
the erroneous express conditioning of visits upon the will of the minors was removed.
Accordingly, there is no need to remand for a visitation modification hearing, even
though it is proper for this court to identify the error given its potential to impact future
proceedings in this matter. (See, e.g., In re Dylan T. (1998) 65 Cal.App.4th 765, 769-770
[mother’s release from jail did not moot challenge to juvenile court order denying mother
visitation in support of reunification while incarcerated]; In re C.C. (2009)
172 Cal.App.4th 1481, 1488-1489 [addressing mother’s complaints concerning order
denying visitation where that visitation was later restored because the original order could
impact subsequent proceedings in the case].)
23
IV
Mother’s Educational Rights
Mother complains the juvenile court’s order limiting her educational rights and
vesting educational rights for both A.C. and Z.C. in their caregivers and CASA workers
was error. Section 361, subdivision (a)(1) authorizes the juvenile court to limit a parent’s
educational rights to a minor child as “necessary to protect the child” and only “in the
best interests of” that child. We review the juvenile court’s order limiting mother’s
education rights for an abuse of discretion. (In re R.W. (2009) 172 Cal.App.4th 1268,
1277.) We discern no error in limiting mother’s educational rights as to A.C., but we
must reverse the order limiting mother’s educational rights as to Z.C.
The limitation of educational rights was addressed at the six-month review
hearing, but only as to A.C. While the court had originally indicated there was no reason
to limit mother’s educational rights to the minors, the Agency thereafter requested A.C.’s
educational rights be granted to her current caregivers or shared in light of the lack of
visitation, mother’s ongoing communication problems, and A.C.’s outstanding academic
performance. The Agency argued under these circumstances, the individuals providing
daily care for A.C. should “have some input into her education.” A.C.’s counsel agreed
that the foster parents should have educational rights and argued that the CASA worker
was also willing to hold educational rights, but that mother should not share those rights
because of her problems with cooperation. Mother’s counsel objected, requesting that
mother be allowed to share A.C.’s educational rights. Ultimately, the court determined
A.C.’s educational rights would be held by A.C.’s foster parents and CASA worker.
However, the court’s findings and orders issued after the six-month hearing limited
mother’s rights as to both A.C. and Z.C.
We discern no abuse in the court’s decision to limit mother’s educational rights to
A.C. given the Agency and A.C.’s counsel explanation for limiting those rights.
24
However, the juvenile court’s order limiting mother’s educational rights as to Z.C.
occurred without any discussion at the hearing, any recommendation in the Agency’s
documents, or otherwise apparent reason why such a limitation was necessary to protect
Z.C. or serve his best interests. This was error.
DISPOSITION
The juvenile court’s order limiting mother’s educational rights as to Z.C. is
reversed with directions for further proceedings to determine whether such limitation is
actually necessary. The judgment is otherwise affirmed.
HULL, J.
We concur:
BLEASE, Acting P. J.
RENNER, J.
25