In re Dominic C.

Filed 4/26/07 In re Dominic C. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal from the juvenile courts denial of a request by appellant Sandra L. (mother) for a contested hearing on the issue of her visitation with her son, Dominic C. Mother contends the juvenile court, in denying her request, violated her rights to due process, abused its discretion, and improperly delegated judicial authority to respondent Alameda County Social Services Agency. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This is mothers second appeal in these dependency proceedings. In the first appeal, A113444, this court affirmed the juvenile courts order declaring Dominic a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b).[1] The factual and procedural background set forth here includes an abridged version of the factual and procedural background set forth in our earlier opinion.

The Section 300 Petition.

On February 3, 2006, the Alameda County Social Services Agency (agency) filed a petition under section 300, subdivisions (a) and (e), alleging Dominic, born prematurely in November 2005, had (1) suffered, or was at substantial risk of suffering, serious physical harm inflicted non-accidentally by his parent or guardian, and (2) suffered severe physical abuse by a parent or by a person whom the parent knew or reasonably should have known was physically abusing him. On March 21, 2006, the agency amended the petition to include an allegation under section 300, subdivision (b) that Dominic had suffered, or was at substantial risk of suffering, serious physical harm as a result of his parents failure or inability to adequately supervise or protect him, or as a result of his parents willful or negligent failure to adequately supervise or protect him from the conduct of the custodian with whom he was left.

The allegations stemmed from two hospital visits Dominic made in January 2006. On January 22, mother and father, Jose C. (father), took Dominic to the hospital after he spit up blood while being bathed. During the visit, hospital staff observed one mark on Dominics cheek and another on his abdomen. When asked about the marks, mother falsely indicated they were birthmarks. Doctors diagnosed Dominic as having gastritis.

On January 30, mother and father (collectively, parents) took Dominic to the hospital for cough, congestion, decreased appetite and stomach discomfort. While treating Dominic, hospital staff observed the marks on his cheek and abdomen had disappeared, and thus must have been bruises rather than birthmarks. Suspecting possible child abuse, hospital staff performed x-rays on Dominic that revealed two actual and five possible broken ribs.

On February 1, 2006, Drs. Jim Crawford and Rachel Gilgoff, specialists in child abuse and neglect, met with parents and other family members. At the meeting, parents were shocked by news of Dominics broken ribs, and had no knowledge of what caused them. Mother informed the doctors Dominic, since birth, had been cared for only by family members, including parents, maternal grandparents, paternal grandmother, and a maternal aunt and uncle. Mother questioned whether Dominics ribs had been broken by hospital staff rather than by his caregivers. She claimed the bruises on Dominics cheek and abdomen were likely caused by father, who often kisses him hard because he loves him so much. She explained that she previously told hospital staff the bruises were birthmarks because she feared child protective services would be called.

Drs. Crawford and Gilgoff suspected Dominic had been non-accidentally injured, and reported his case to the agency. On February 3, 2006, Dominic was detained and placed in the relative foster home of his paternal aunt and grandmother. The agencys section 300 petition followed.

The agency thereafter recommended out of home placement for Dominic, as well as reunification services for parents. The agency noted parents had been cooperative and in compliance with all supervision requirements during visitation, and that hospital staff had observed they were appropriate and ask[ed] good questions during Dominics treatment.

The Jurisdiction/Disposition Findings and Order.

A contested hearing began February 27, 2006. Witnesses testifying at the hearing included parents, Dr. Gilgoff, and social worker Krystal Fortner.

Based on her examination of Dominic and review of his medical records, Dr. Gilgoff opined his broken ribs occurred sometime in January and were likely caused by a compressive force, such as somebody holding the baby underneath the armpits with the thumbs usually on the front of the baby and then squeezing. Rib fractures are not common in babies, and thus, when unexplained, are highly suspicious for non-accidental trauma.

Dr. Gilgoff made clear Dominics caregiver at the time he broke his ribs must have known something had happened because, due to the intense pain, he would have been very upset and difficult to console. A person, including his mother, who did not see Dominic until several hours after the injury may not have realized he was hurt.

Dr. Gilgoff opined Dominics facial bruise was caused sometime during January by a blunt impact force to the face and was highly suspicious for child abuse. She referred to a study showing that bruises appear on infants under six months old less than point six percent of the time. With respect to Dominics spitting of blood, Dr. Gilgoff opined it could have been caused by a traumatic force and, particularly in light of his other unexplained injuries, was highly suspicious for child abuse.

Mother testified she and father were Dominics primary caregivers, but that on several occasions other family members had cared for him. When mother returned to work full-time on January 18, 2006, father became the primary day-time caregiver. Dominics maternal aunt cared for him on January 22 and 28, and reported nothing unusual had occurred.

Mother, among other things, reiterated her belief that Dominics facial bruise was caused by fathers unusually hard, but loving, kisses. She admitted misleading hospital staff about the nature of the bruises, and explained she did so out of fear they would call child protective services, who would not believe fathers kisses had caused the bruises. Mother also testified she had no idea how Dominics ribs were broken and insisted no changes to Dominics childcare arrangements were necessary based on his injuries, but then agreed to do whatever the court or [the agency] asks, including disallowing unsupervised contact between Dominic and father, to secure Dominics return to their home.

Like Dr. Gilgoff, social worker Fortner expressed concern that parents had no information regarding the cause of Dominics rib fractures, and that mother had misled hospital staff regarding his bruises. Because of her concerns, Fortner believed Dominic should remain out of the home while parents received reunification services. She acknowledged parents appeared to behave appropriately with Dominic, and that they have a good family support system in place. She did not believe either parent posed a danger to Dominic, and was unaware of any case where kissing had bruised a two month old child. She believed, however, parenting education classes could teach parents to be more aware of Dominics health and safety, and of potential problems that may occur when others care for him. She recommended parents adopt a safety plan to prevent and address situations where Dominic is placed in potentially dangerous situations.

On March 30, 2006, the juvenile court sustained the petitions allegations under section 300, subdivisions (a) and (b), but dismissed the allegation under subdivision (e). Dominic was thus adjudged a dependent child and his removal from parents physical custody was continued.

The 3-Month Interim Review.

The 3-Month Interim Review Status Report.

The juvenile court scheduled a 3-month interim review hearing for June 29, 2006. In preparation for the hearing, the agency filed a status report signed by Cynthia Schwenger, who had assumed Fortners role as the social worker assigned to the case. The report noted parents remained cooperative and eager to reunify with Dominic, and commended them for complying with the case plan by, among other things, attending parenting classes and agreeing to obtain psychological evaluations. The report also noted, however, that parents remained ignorant of how Dominic was injured, and seemed to be focused on their own pain from Dominics removal rather than on Dominics pain from his abuse.

In recommending weekly infant/parent psychotherapy, the agency reported that personnel from SEED, a specialized parent-child development program to which parents had been referred, had observed an emotional distance between mother and Dominic. Rosario Mungra, a medical professional at Oakland Childrens Hospital and SEED team member, observed Dominic avoiding eye contact with mother and becoming very serious in her presence. Mungra also observed mother had difficulty reading Dominics cues; for example, mother continued to feed Dominic even after he turned away and began to cry. Mungra concluded definite signs of a disrupted relationship existed between Dominic and mother, and that Dominic appears to use his defense mechanisms, such as sleeping or avoiding eye contact as his way of dealing with his previous trauma of being injured.

According to the report, Mungra observed no such issues involving fathers interactions with Dominic. To the contrary, she reported Dominic maintained good eye contact with father and did not appear uncomfortable in his presence.

Regarding visitation, the report noted both parents consistently visited Dominic at the home and under the supervision of his caregivers, the paternal aunt and grandmother. However, while Fortner, the former case social worker, had encouraged parents to visit as frequently as possible, Schwenger, the current assigned social worker, recommended a more limited visitation schedule. As a result, with parents agreement, visitation had been reduced from daily visits of unlimited duration to twice weekly, two-hour visits.

Based on the circumstances, the agency recommended that Dominic remain a dependant child and that the matter be continued for a 6-month status review. Parents agreed with those recommendations, and expressed no objection to the revised visitation schedule, or any other matter, prior to the 3-month review hearing.

The 3-Month Review Hearing and the Juvenile Courts Order.

At the hearing, the juvenile court questioned Schwenger regarding parents progress with reunification and the reduced visitation schedule. Schwenger commended parents cooperation in working toward reunification, but noted the case plan she received when assigned to the case called for visitation once a week. As such, Schwenger was surprised to learn her predecessor, Fortner, had allowed parents to visit daily. Daily visits concerned Schwenger because it remained unknown who abused Dominic, and because observations from Mungra indicated Dominics relationship with mother was strained. Schwenger concluded: [T]he relationship with the parents and the child needs to be supported clinically and under some clinical supervision, and I feel that this is the most appropriate visitation plan at this time until we learn more information from the evaluations and . . . from [Mungra] at Childrens Hospital Oakland about how theyre doing with the baby.

Later in the hearing, Schwenger reiterated she was not drawing any conclusions at this point regarding mothers relationship with Dominic; rather [w]ere collecting information. Further, Schwenger was perplexed that Dominics reactions with his father are very different . . . than with his mom, even though both parents were visiting him less often.

Dominics counsel agreed mothers visitation should remain twice weekly for the time being given Dominics negative reactions to her. Dominics counsel had no objection, however, to increasing fathers visitation.

The juvenile court noted it had no information explaining why Dominic was responding negatively to his mother but not to father. The juvenile court thus agreed to increase fathers visitation, but made clear mother would not be allowed additional visitation until more information was gathered.

Mothers counsel objected to the juvenile courts ruling, arguing his clients relationship with Dominic changed . . . dramatically when Schwenger was assigned to the case and reduced visitation. Mothers counsel thus requested daily visits be restored and a contested hearing be held so Fortner and Dominics caregivers could testify their relationship was positive when daily visitation was allowed. He also requested mother be permitted to address the court because this is a serious concern of hers, and she believes its correct when Miss Schwenger says the minor is fearful of her.

Counsel for the agency, father and Dominic opposed the contested hearing. Dominics counsel reasoned the evidence before the court supported the agencys decision to reduce visitation based on observations from the highly specialized and objective SEED professionals. Moreover, he pointed out, Fortners testimony would not be helpful because she had not been involved in the case since Dominic was 3-months old. The agencys counsel agreed a hearing would have little utility, particularly given Fortners lack of current information.

The juvenile court denied mothers request for a contested hearing. In doing so, the juvenile court made clear its focus was on Dominic, an infant who had suffered several unexplained injuries. It also noted the next scheduled hearing the 6-month review hearing was just a couple months away, if that, when more information from SEED professionals would be available to better assess why [Dominic] is shutting down. Waiting until the 6-month review hearing would also give SEED professionals time to work with parents on parenting skills to reduce Dominics risk of further injury.

The juvenile court further ordered the agency to provide all parties with a copy of all written SEED reports or assessments at least 10 days before the 6-month review hearing. The juvenile court expressed a willingness to revisit the issue of a contested hearing once more information was known regarding Dominics behavior.

This appeal followed.

DISCUSSION

Mother contends the juvenile court erred by: (1) denying her request for a contested hearing regarding her visitation with Dominic, and (2) delegating its authority to the agency, and in particular to social worker Schwenger, to set the visitation schedule.

The Juvenile Court Properly Denied a Contested Hearing.

Mother contends the juvenile courts refusal to conduct a contested hearing regarding her visitation with Dominic was an abuse of discretion and violated her rights to due process. The agency responds mother had no right to a contested hearing at that point in the proceedings. The agency further contends any error in the juvenile courts ruling was harmless because the ruling did not put mother in a worse position.

We conclude the juvenile courts denial of a contested hearing under the circumstances of this case was proper.

The Juvenile Court Did Not Abuse Its Discretion.

The juvenile court has broad discretion to control dependency proceedings. ( 350, subd. (a)(1).) In particular, the juvenile court may limit a parents control over the child where necessary to protect the child. ( 361, subd. (a).) The juvenile court may also exercise broad discretion in making decisions that promote the childs best interests. ( 361.2;  300.2.) Moreover, in exercising its discretion, the juvenile court may balance a parents due process rights against the courts duty to conduct dependency proceedings in a prompt and efficient manner. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 759-760.) And even if the juvenile court abuses its discretion in making a decision, its decision will be disturbed on appeal only if a miscarriage of justice resulted. (Id. at p. 759.)

The statutory law sets forth a detailed framework governing dependency proceedings. Once a child under age 3 is removed from a parents custody, the parent is entitled, except in limited circumstances, to a minimum of 6 months and a maximum of 18 months of reunification services. ( 361.5.) During the reunification period, the juvenile court must review the case at least once every 6 months from the date of the initial dispositional hearing. ( 366, subd. (a); In re Johnny M. (1991) 229 Cal.App.3d 181, 188.) A statutory presumption exists during this period that the child will eventually be returned to the parent. Accordingly, [a]t 6-, 12-, and 18-month review hearings the juvenile court must return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the childs physical or emotional well-being. ( . . .  366.21, subd. . . . (f);  366.22, subd. (a).) (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)

If, within the maximum 18-month reunification period, the juvenile court determines it would be detrimental to the child to be returned to parental custody, the court may terminate reunification services and order a permanent plan for the child. ( 366.21, subds. (f)-(g);  366.22, subd. (a).) When reunification services are terminated, the courts focus shifts away from the parents interest in reunification and toward the childs need for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at pp. 308-309.) Accordingly, if the child is not returned home at the 18-month review hearing, the juvenile court must set a hearing pursuant to section 366.26, at which the court must adopt one of four alternative permanent plans, one of which is adoption. ( 366.22;  366.26, subd. (b)(1)-(4).)

California courts have recognized the 18-month review hearing occurs at a critical juncture in dependency matters, as it ordinarily marks the last opportunity for a parent to obtain the childs return to parental custody. (Ingrid E., supra, 75 Cal.App.4th at p. 753.) As such, it is an abuse of discretion for the juvenile court to deny a parents request for a contested 18-month review hearing to present evidence that the childs return would not be detrimental to the child. (Id. at pp. 759-760.)

Similarly, California courts have found parents entitled to a contested hearing at the juncture in the dependency proceedings at which the juvenile court determines a permanent plan for the child. (In re Johnny M., supra, 229 Cal.App.3d at p. 190.) Basic notions of fundamental human rights and fairness compel giving a parent a contested hearing when the options before the juvenile court are returning the child to parental custody or terminating reunification services and determining a plan for permanent placement with another person. We cannot imagine allowing such a decision to be made without input from the child's mother. (Ibid.; see also In re Kelly D. (2000) 82 Cal.App.4th 433, 439-440 [the juvenile court abused its discretion under the circumstances by denying father a contested hearing in the post-reunification, post-permanency planning phase of the proceedings].)

Here, the denial of mothers request for a contested hearing was made before the permanency planning phase and only three months into the reunification phase of Dominics dependency proceedings. As mother admits, she had no statutory right to the 3-month review hearing. Rather, the juvenile court exercised its broad discretion under sections 350 and 365 to schedule it. Nonetheless, mother contends she had a right under section 350 to a contested 3-month review hearing because her request came at a very critical stage of the proceedings. She explains the ruling impact[ed] . . . her long-term chances for successful reunification because [f]requent and consistent visitation during the statutory reunification period is typically required for a parent to reunify and, ultimately, becomes critical when a parent must prove the existence of a parental bond in the final phase of a dependency to forestall or preventing [sic] adoption of the child.

We disagree section 350 gave mother a right to a contested hearing at this stage in the proceedings. Section 350, subdivision (a)(1) provides: The judge of the juvenile court shall control all proceedings during the hearings with a view to the expeditious and effective ascertainment of the jurisdictional facts and the ascertainment of all information relative to the present condition and future welfare of the person upon whose behalf the petition is brought. Except where there is a contested issue of fact or law, the proceedings shall be conducted in an informal nonadversary atmosphere with a view to obtaining the maximum cooperation of the minor upon whose behalf the petition is brought and all persons interested in his or her welfare with any provisions that the court may make for the disposition and care of the minor. (Emphasis added.)

Here, it was undisputed Dominic was reacting differently to mother than to others by avoiding eye contact and engaging in avoidance techniques such as sleeping in her presence. Mothers counsel suggested Dominics behavior was due to Schwengers decision to reduce mothers visitation. The juvenile court and other counsel questioned this suggestion, pointing out Dominic was not withdrawing from father, whose visitation had also been reduced. While no one suggested mother was at fault for Dominics behavior, the consensus was more information was needed to determine its cause.

Schwenger, for example, testified the agency was not drawing any conclusions at this point, rather [w]ere collecting information. Dominics counsel agreed, suggesting the parties wait until the upcoming 6-month review hearing to allow more time to truly understand why he is acting the way he is with his mom and hes not acting that way with his dad and they have the same visits. Dominics counsel also stated that everybody is rooting for mom here, and hoping the agency, through SEED, can help mom so that . . . Dominic is more engaging with [her].

The evidence also revealed parents acquiesced to Schwengers decision to reduce visitation for the time being, a decision she made over two months before the 3-month review hearing when she took over as the social worker assigned to the case. Further, Schwengers decision to reduce visitation was disclosed to the juvenile court and to the parties in the status review report filed in connection with the 3-month review hearing. The report reflects that parents agreed with the agencys recommendations to maintain Dominics status as a dependent and continue the matter until the 6-month review hearing. It was not until the 3-month review hearing, after Schwenger expressed concern about Dominics recent behavior toward mother, that mothers counsel first complained of the reduced visitation.

Given this evidence, we conclude the juvenile courts decision to deny mother a contested 3-month review hearing was well within its discretion. Indeed, the juvenile court did not foreclose the possibility of holding a contested hearing in the future. Rather, the juvenile court found the need for a contested hearing was not yet apparent given the lack of available information regarding the cause of Dominics behavior toward mother. The juvenile court thus reasonably decided, consistent with section 350, to proceed in an informal nonadversary atmosphere with a view to obtaining the [parties] maximum cooperation until the 6-month review hearing, a mere few months away, when more information would be available from family members and SEED professionals regarding his behavior. ( 350.)

Mothers Due Process Rights Were Not Violated.

We further conclude the juvenile courts ruling was consistent with mothers due process rights. It is axiomatic that due process guarantees apply to dependency proceedings. [Citations.] (Ingrid E., supra, 75 Cal.App.4th at p. 756.) Due process requires procedural fairness, including the right to confront and cross-examine witnesses. (Id. at p. 757; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) Due process, however, is a flexible concept, whose application depends on the circumstances and a balancing of various factors. (Ingrid E., supra, 75 Cal.App.4th at p. 757; In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) [D]ue process does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest. (In re Tamika T., supra, 97 Cal.App.4th at p. 1122.)

As we have already explained, in denying a contested hearing, the juvenile court left open the possibility of granting one later, and provided all parties an opportunity to gather evidence that may or may not reveal a contested issue regarding whether more frequent visitation between mother and Dominic would be beneficial. The juvenile courts ruling thus kept intact mothers right to present evidence and cross examine witnesses on the visitation issue at a more appropriate time.

These facts distinguish mothers authority, In re Johnny M., supra, 229 Cal.App.3d 181 and Ingrid E., supra, 75 Cal.App.4th 751. For, unlike the parents in those cases, mother has several remaining opportunities to litigate the issue of her parental fitness as it relates to Dominics placement. (Cf. In re Johnny M., supra, 229 Cal.App.3d at p. 191 [error to refuse a contested hearing where it denied mother her last opportunity to litigate the issue of her parental fitness before the hearing to terminate her parental rights]; Ingrid E., supra, 75 Cal.App.4th at pp. 759-760 [error to refuse parent a contested hearing in the post-reunification, post-permanency planning phase of the proceedings].) These remaining opportunities before the case proceeds to the permanency planning phase include the upcoming 6-month review hearing and, should Dominics removal continue, the 12- and 18-month review hearings. ( 366.21, subd. (f);  366.22, subd. (a).)

Under these circumstances, after balancing mothers right to due process in challenging her sons removal against the juvenile courts interest in controlling and expeditiously concluding dependency proceedings, we conclude no contested hearing was required at this stage of the case.

The Juvenile Court Did Not Improperly Delegate Its Authority Over Visitation.

Mothers final contention is that the juvenile court improperly delegated judicial authority to the agency by granting it unfettered discretion . . . to arrange visitation on any schedule the [agency] deemed appropriate for Dominics needs. We disagree.

An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children as frequent[ly] as possible, consistent with the well-being of the minor. (In re Julie M. (1999) 69 Cal.App.4th 41, 49-50.) It is the juvenile courts responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. (In re S.H. (2003) 111 Cal.App.4th 310, 317; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374, 1376.) To sustain this balance the childs social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur. (In re S.H., supra, 111 Cal.App.4th at p. 317.)

The juvenile court, however, has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to the DSS. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine. (In re Moriah T.[, supra,] 23 Cal.App.4th [at p. 1374]; In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237 [order for Visitation in the discretion of DPSS and minors was not improper delegation of judicial powers].) (In re Christopher H., supra, 50 Cal.App.4th at. p. 1009.) The discretion to determine whether any visitation occurs at all must remain with the court, not social workers and therapists, and certainly not with the children.  (In re S.H., supra, 111 Cal.App.4th at p. 318.)

Here, the juvenile court did not delegate to the agency or to social worker Schwenger the discretion to determine whether any visitation between Dominic and mother would occur. Rather, the juvenile court ordered visitation to occur as frequently as possible consistent with the childs well-being, and merely gave the agency responsibility to manage the details of the visits, including the time, place and manner in which visits should occur. Under the law set forth above, the juvenile courts order was permissible. (In re S.H., supra, 111 Cal.App.4th at p. 317; In re Christopher H., supra, 50 Cal.App.4th at. p. 1009.) As such, mothers claim of error is misplaced.

DISPOSITION

The juvenile courts order denying a contested hearing is affirmed.

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Parrilli, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] Unless otherwise stated, all statutory citations herein are to the Welfare & Institutions Code.