In re K.M.

Filed 4/3/09 In re K.M. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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L.M.-H. (appellant), the mother of K.M., T.M., L.M., and B.M. (the minors), appeals following juvenile court orders sustaining allegations in dependency petitions and denying reunification services. (Welf. & Inst. Code,  395; further section references are to this code.) She contends that the court erred by limiting visitation with two of the minors, K.M. and T.M.

We will remand the matters to the juvenile court with directions to clarify its visitation orders regarding K.M. and T.M. and to amend its written visitation order regarding B.M. to conform with the order pronounced at the dispositional hearing.

FACTUAL AND PROCEDURAL BACKGROUND

The Sacramento County Department of Health and Human Services (the Department) filed dependency petitions in November 2007 as to K.M. (age 14), T.M. (age 15), L.M. (age 15), and B.M. (age 17), based on allegations that appellant (the minors great aunt and adoptive mother and her husband physically abused L.M. The alleged abuse included repeated stabbings, striking L.M. with various objects including a hammer, a broomstick, and a stick, and keeping L.M. locked in a closet. The petitions were later amended to include allegations that L.M.s injuries would require extensive reconstructive orthopedic, dental and cosmetic surgery and that the minors were all at substantial risk of suffering serious physical harm inflicted nonaccidentally by appellant. ( 300, subd. (a).) A social workers report stated the following:

L.M., who had scars over her body, with numerous chipped and missing teeth and described daily whippings by appellant when L.M.s siblings were not home, including being burned with hot water and an iron. L.M.s stepfather hit her with his fists, knocking three of her teeth out on one occasion. Another time, he body-slammed her causing her to hit the floor and break her arm. She was locked in the hall closet every day, which was where she slept and ate, and would knock when she needed to use the bathroom. T.M. and B.M. acknowledged that L.M. did not go to school, and the high school confirmed that L.M. had not attended since the previous school year. L.M. later reported that appellant said she would kill L.M. or have her killed if L.M. ever got appellant into trouble, and that the stepfather also had threatened to kill L.M.

A medical evaluation of L.M. reported physical findings consistent with extensive, repetitive physical assault over an extended period of time, leaving her extremely disfigured and scarred. She had multiple fractures, was anemic, had missing teeth and a heart murmur, and ha[d] undergone extensive emotional abuse. Her upper lip was healed with a big split, apparently caused by the stepfather kicking her in the face with a steel-toed boot. She had broken bones in her hands, resulting from a typical punishment of having her put her hand out flat and having it hit with a hammer.

B.M. was found to have too many scars to count on her face, neck, chest, upper extremities and back and many other injuries, the sum total of [which] is inconsistent with accidental trauma. K.M. had scars that were concerning for inflicted trauma.

Five-year-old A.M., who was in a guardianship with appellant and is not a subject of this appeal, reported she received daily whippings with a belt from appellant.

When B.M. was initially interviewed, she acknowledged some of the abuse appellant had inflicted on L.M. and B.M. Subsequently, B.M., K.M., and T.M. denied that appellant or their stepfather used physical discipline, and denied seeing L.M. be physically abused. All the minors except L.M. reported they wanted to return home.

When B.M. was interviewed by a detective, she said that she did not want appellant or her stepfather to know she had disclosed information about the abuse in the home. Similarly, T.M. explained: When I say I dont know anything about [an object used to lock L.M. in the closet], I mean I dont [want] to say something that will get someone in trouble. I dont want to be involved in my mom[,] L[.M.] and [stepfather] getting in trouble.

Expressing concern about appellant threatening [the minors] not to talk, and feeling that the minors were in more danger now than before, the minors great-aunt told the social worker that other relatives were afraid to come forward about appellants abuse of the minors. She pleaded with the social worker to disallow contact between appellant and the minors. Similarly, a maternal uncle disclosed that appellant had been physically abusive to other relatives in her care, and he was afraid appellant would threaten the [minors] not to say anything.

Appellant denied the allegations concerning L.M., claiming instead that L.M. had physically abused appellant and that L.M. had caused trouble ever since she was nine years old, when she became jealous that the stepfather wouldnt mess with her. Appellant reported having numerous medical problems, including arthritis of the spine, emphysema, diabetes, and high blood pressure. She also reported she has had bostic cancer in the womb and surgery for throat cancer and was diagnosed with leukemia several years earlier.

Both appellant and the stepfather were arrested for child endangerment, felony assault, and false imprisonment. The criminal court issued a no-contact order prohibiting appellant from having contact with L.M. and B.M.

At a juvenile court prejurisdictional hearing, the court concluded that allowing appellant visitation with the minors would be detrimental to them based on concern regarding threats and the possibility of coercion and on the minors desire not to see appellant in handcuffs or incarcerated. The court ordered K.M., T.M., and B.M. could write letters to appellant in a one-way communication.

At a hearing three weeks later, appellant requested visitation with T.M. and K.M., asserting the no-contact order in the criminal case had been lifted as to them. The juvenile court ordered that appellant could write letters to T.M. and K.M but that the letters would need to be screened. The court did not change the order as to L.M. or B.M., who continued to be the subjects of a no-contact order in the criminal matter.

At the jurisdictional and dispositional hearing, the juvenile court sustained the allegations in the amended petitions and denied reunification services, ordering emancipation as the permanent plan goal for the minors.

Counsel for B.M., T.M., and K.M. requested there be no physical contact between appellant and the minors, and urged the juvenile court to leave in effect its previous order for letter contact only. L.M.s attorney, who also represented A.M., wanted the no-contact order with her clients to remain in place. The Department concurred with the requests of the minors attorneys.

Stating appellant was still requesting visitation, her attorney explained: [Appellant] does understand that there is a criminal no-contact order with [L.M. and B.M.]. That order had been lifted with [K.M. and T.M.], and she is appreciative of the letter contact and wishes that to continue. She would like further visitation.

As to A.M., whose matter was also on calendar, the juvenile court ruled that visitation would be detrimental, in part based on the abuse that has been done to these children in this case and the reason for the bypass in this case and their fear. The court also found it would be detrimental for L.M. to have visits with appellant, and the no-contact order as to her remained appropriate.

The following exchange then ensued:

[THE COURT:] As to the remaining children the Court finds that -- go ahead.

[ATTORNEY FOR DEPARTMENT]: May I be heard briefly, Your Honor?

THE COURT: Sure.

[ATTORNEY FOR DEPARTMENT]: B[.M.] is -- my understanding is included in the criminal prohibition noncontact and in addition based on the further interview with her as well as her original statements to the police the Court just sustained allegations under . . . [section 300, subdivision] (b) regarding actually striking B[.M.] So I would ask at this point in time to include B[.M.] in that no-contact order, Your Honor. Although she has not suffered the extent of injuries that L[.M.] has she has been the victim of the physical abuse and also was locked in the closet as a form of discipline along with L[.M.] and we do believe that would be detrimental in this case.

THE COURT: Well, I believe [B.M.s attorney] is asking for a no contact for the reasons youve asserted. She is simply asking for letter contact. [] Is that correct, [B.M.s attorney]?

[B.M.s attorney]: As supervised by the Department per my clients request, Your Honor.

THE COURT: What Im prepared to do is maintain the no-contact order for B[.M.] as well. The Court will authorize . . . the letter contact, however, supervised directly by the Department[,] and the child has the ability to consent to or refuse any specific letter. She cannot be given the option to refuse or consent to future letters. So if there is a letter received, the Department looks at it, determine[s] if its appropriate, and then ask[s] the child if she wants to see the letter. Thats the way. I dont want her to say, no, I dont want them. I want the ability to be there for [appellant] to do that.

The court went on to discuss other visitation issues without specifically addressing appellants visitation with T.M. and K.M. The discussion included a request by the Departments attorney to exclude appellant, as the minors great-aunt, from the relative visitation order, which the court granted, stating: That is an appropriate amendment. Its perhaps implicit in the findings but I think it appropriate to spell it out specifically. However, the court adopt[ed] in their entirety the dispositional findings and orders recommended by the Department, which included an order that appellant shall have regular visitation with . . . K[.M.], T[.M.], and B[.M.], consistent with the [minors] well being.

DISCUSSION

Appellants only contention on appeal is the juvenile court abused its discretion by allowing her only letter contact with K.M. and T.M. We requested supplemental briefing to address whether the court made any oral order regarding visitation with respect to K.M. and T.M. and, if not, whether the courts written visitation order accurately reflects the courts intent regarding visitation.

Visitation for a parent denied reunification services is governed by section 361.5, subdivision (f), which states in relevant part: The court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. The use of the term may in this section is permissive, i.e., as giving the juvenile court discretion to permit or deny visitation when reunification services are not ordered, unless of course it finds that visitation would be detrimental to the child, in which case it must deny visitation. (In re J.N. (2006) 138 Cal.App.4th 450, 458.) Thus, the court has discretion to order visitation when it denies reunification services unless it finds that visitation would be detrimental, in which case visitation cannot be ordered. The statute contemplates a continuation of visits, not the commencement of visits.

The juvenile court is vested with broad discretion concerning child custody and visitation. The exercise of that discretion will not be reversed unless the record clearly shows it was abused. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.)

Here, appellant had not been permitted to visit K.M. and T.M. prior to the dispositional hearing, and the juvenile court had found that visitation would be detrimental based in part on concerns that appellant would threaten the minors. Statements by the minors and their relatives supported this concern, and the egregious nature of the abuse by appellant and her husband warranted an exercise of discretion to allow appellant only letter contact with T.M. and K.M.

Appellant argues that T.M. and K.M. asked for visitation and their attorney advocated for supervised visits. But they later said they did not want to visit appellant while she was incarcerated; and, at the dispositional hearing, their attorney requested no contact between appellant and the minors other than letter contact.

There is no merit in appellants assertion that, given she was quite ill and it was unknown how much more time is available for [them] to physically see and speak with her, it was detrimental for T.M. and K.M. not to see appellant. As the Department correctly points out, there is no evidence in the record that appellant is terminally ill, and she did not make this argument in the juvenile court as a basis for allowing visitation.

As appellant in effect acknowledged in her opening and reply briefs on appeal, it appears the juvenile court intended to allow only letter contact with K.M. and T.M. This is so because, after the court was interrupted as it was about to articulate its orders regarding K.M. and T.M., the court stated its intention to maintain the no-contact order for B.M. as well, indicating a conclusion that appellant should have no contact with K.M. and T.M. except for the letter contact then authorized by the court.

However, because of the interruption by the Departments counsel, and the courts failure to explicitly return to the issues of visitation with K.M. and T.M., there was no actual articulation of such orders as to those two minors.

Although the court adopted the Departments recommended written findings and orders, which included an order for regular visitation with K.M., T.M., and B.M., these orders do not appear to reflect the courts intent regarding visitation, as they are in direct conflict with the courts oral order regarding B.M. and cannot be reconciled with the remainder of the record concerning visitation regarding K.M. and T.M.

It is true, as we have already observed, the record indicates the juvenile court intended to allow appellant only letter contact with K.M. and T.M., and the record contains ample evidence to support such orders; however, we conclude the appropriate disposition is to remand the matters to the juvenile court for it to state for itself the orders that it inadvertently omitted as to K.M. and T.M., and to modify its written visitation order regarding B.M. to conform with the order the court made at the dispositional hearing.

DISPOSITION

As to K.M. and T.M., the matters are remanded to the juvenile court with directions to clarify its visitation orders regarding those two minors. As to B.M., the matter is remanded with directions to modify the written visitation order to conform to the visitation order pronounced by the court at the dispositional hearing. In all other respects, the orders of the juvenile court are affirmed.

No issue having been raised as to L.M., the appeal in her matter is dismissed.

SCOTLAND , P. J.

We concur:

SIMS , J.

NICHOLSON , J.

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