In re A.O.

Filed 4/18/07 In re A.O. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsels, for Plaintiff and Respondent.

No appearance by the Minor.

* * *

Angela O. appeals from the trial courts orders made at the Welfare and Institutions Code section 364, subdivision (c),^[1]six-month review hearing regarding her 14-year-old daughter, A. The court reduced Angelas visits and telephone contact with A., and refused to order conjoint counseling for them. We find no abuse of discretion and affirm the orders.

I

This dependency case began in 2005, when then 12-year-old A. and her two half sisters were taken into protective custody. Angela had struck A.s eye with her hand, pulled her hair, threw her into a stroller, and scratched her arm with a butter knife. A. reported the abuse had been going on for years. For example, Angela would repeatedly dunk her head in a bathtub full of water as a form of discipline, and she withheld food from A., telling the child she was fat.

Angela was arrested for child abuse. A.s two half sisters went to live with maternal relatives. A. was placed in the custody of her father, Y.P., who had not seen A. in awhile due to difficulties with [Angela]. Y. was married and had five other children. He claimed he was unaware A. was being abused by Angela.

Angela and Y. pled no contest, and the court sustained the petition brought under section 300, subdivision (b). The court gave Y. custody of A. under a court-supervised plan of family maintenance services. Angela did not receive reunification services, but rather the court ordered an enhancement plan, which included counseling, anger management classes, and parenting classes.

After approximately one month in her new placement, A. reported to the social worker she liked living with her father and wanted to stay with him. She speculated the reason why her father didnt see her before was likely because he didnt want to have to deal with her mother[.] She also expressed concern about her mother, stating, It scares me what she would do to get us back. A. confided her mother said things that scare and freaks her out.

The social worker reported the childrens respective caretakers all had complained Angela was being manipulative when trying to schedule visits and expected the caretakers to work around her schedule, even though she was not working. A.s stepmother reported that often A. would become more defiant after speaking with Angela on the phone. She opined the child had low self-esteem and probably suffered from physical abuse because when she got into trouble at home, her first automatic response was to say, Dont touch me, dont hit me. Angela and A. would often bicker during visits and during phone calls.

At the six-month review hearing, the parties stipulated, and the court ordered, A. would remain with Y. under a plan of family maintenance services. A.s relationship with her father and stepmother had taken a turn for the worse. A.s stepmother stated the family was in a lot of turmoil because A. was being defiant, acted out, and was disrespectful to other family members.

A. and Y. were participating in counseling, which sometimes included the stepmother. The counselor opined A. was currently displacing anger at her mother and expressing it towards her stepmother and half-siblings. . . . She . . . believe[d] [A.] is also struggling with living in a home with structure and discipline, when she previously lived in a home with few rules to follow.

A. had told the social worker she no longer wanted to live with her father because she felt excluded from the family, and was made to feel she does not belong there. Prior to moving there, she did not have a strong relationship with her father, and she was having a difficult time bonding to her stepmother. The social worker concluded A. was emotionally struggling at her fathers house.

Angela was failing to make progress in her therapy sessions. Her counselor at Olive Crest opined Angela had mental health issues that were impeding progress. Angela participated in a court ordered Evidence Code section 730 evaluation (hereafter, 730 evaluation), and was referred to a new counselor having more experience with personality disorders. In addition, it was recommended Angela receive additional anger management classes. Angela told the social worker that only she could adequately care for her children, and often made negative statements about A.s father and his wife in front of A. She was having weekly two-hour visits and monitored phone calls with A.

A. spent Christmas week with her maternal cousin Diana A., and her family. She told the social worker she wanted to live with Diana, rather than with her father and stepmother. A.s stepmother reported, the childs disrespectful attitude and aggression towards her half-siblings [had] diminished somewhat, but that she feels that the relationships within the family [had] not improved.

The visitation monitor reported the progress as hot and cold on the part of both A. and Angela. She explained, Sometimes the visits will go extremely well, and other times the children are argumentative and difficult. [S]ometimes the mother can handle the scuffles appropriately, and other times she cannot. [Angela] is often very stressed, and appears to be easily angered. During one visit, the monitor called the social worker and asked her to come to visitation area to diffuse an argument between Angela and A.

Over the next month, the social worker explored the possibility of having A. live with Diana. However, after further reflection and additional contact with A., Diana informed the social worker her family was no longer interested in having A. live with them. Diana explained that after a telephone call in which A. was extremely disrespectful and demanding, Diana realized she had been minimizing the situation and she was concerned about her familys well-being.

Thereafter, A.s relationship with her father and stepmother started to improve. The stepmother stated she is prepared to work to integrate the child into their household. She stated that she previously wanted to avoid the situation due to her frustration, but now knows that she cannot do that. She stated that she and the child had a very good week together . . . and is hopeful that it will continue. She stated that in spite of her frustration, she feels empathy for the child for all she has gone through. She talked of how happy it makes her to see the moments in the childs life when she is really happy and enjoying herself with the family. A.s father agreed the situation seemed to be better. He indicated . . . he want[ed] what is best for the child, and want[ed] to see her having a happy life. He further stated . . . he is committed to helping the child succeed.

A.s visits with her mother remained problematic. She started to ask the monitor to end her visits with Angela early. The monitor reported A. and her mother often had heated arguments and A. appear[ed] to have little respect for her mother by her responses and the grimaces she made towards her mother. Angela kept pressing A. with a multitude of questions about her and her family life and family members. [Angela] told A. that her stepmother [was] not her stepmother but her fathers wife.

On one occasion, the security officer had to intervene after Angela attempted to prevent the visit from ending, by talking loudly, making a scene, and physically trying to move the children away from the monitor. On another occasion, Angela told A. to [s]hut up in Spanish when she asked about her cousin. Later that day, A. and her mother got into what was described as a wrestling match, fighting over a piece of paper A. was holding and Angela wanted to see. The security officer had to intervene, and told Angela her behavior was not appropriate, and that she needed to behave more like an adult.

The following month, a different monitor reported, she observed [Angela] to frequently touch the children, despite them saying that they do not want her to do so. She stated that the mother was angry and defensive when redirected. [S]he [also] observed the mother to tackle . . . A., in an attempt to take away a picture that the child had.

At the termination review hearing in February 2006, the social worker recommended it would be in the best interest of the child and the family to terminate continued supervision by the court and the Orange County Social Service Agency (SSA). She concluded the family would most benefit from being given the opportunity to move forward as a family, without the added stress and obligation that involvement with the [SSA] inevitably brings. The court disagreed and continued jurisdiction. It set a termination review for April and a six-month family review hearing for June 2006.

In April 2006, the social worker reported A. had made some positive adjustments, but was continuing to struggle in other areas. A. had indicated things were going okay in [her fathers] home . . . [and] she spoke excitedly about being involved in church activities and talked of her friends there and at school. She would likely have to repeat eighth grade, and Y. had enrolled her in a tutoring program and an after-school homework club to address this issue.

Y. and his wife reported they had noticed some improvement in their relationship with A. Their struggles often related to A. and her schoolwork. Y. noted [A.] seems to decline in some ways when she is reminded of the circumstances surrounding her mother and her siblings. He stated . . . [A.] is often down after visits and after sessions with her therapist . . . . He stated that at other times, she appear[ed] to be a normal child, able to go about her daily life.

A.s relationship with her mother remained tumultuous. Angela would visit alone with A. two hours per week, and then come again later for two hours with A. and her two half sisters. The social worker observed that over time, A.s visits with her sisters became more and more chaotic. The child appeared to be disrupting the visits at times, and arguments between her and the mother characterized most of the visits. . . . The child and the mother would often spend the time criticizing one another, to the point that the other two children were being ignored. The child was open in her anger towards [Angela] for the history of abuse in the family and openly critical of her parenting style. According to the social worker, Angela recognized she was unable to control or redirect A.s behavior and requested visits with the sisters be stopped until A. learned to behave better. The social worker agreed. A. expressed great anger at the fact that she [was] no longer able to attend the visits with her sisters.

Despite this setback, A. stated she was willing to have unmonitored visits with her mother in a public setting. Y. took over supervision of their phone calls. He gave Angela a schedule of times to be available to receive calls from A. Although he would remind A. to call her mother, A. often said she was busy with other things and forgot to call. The half sisters caregivers agreed to facilitate visitation between the sisters and A.

Although Angela was participating in counseling, her therapist opined another 730 evaluation would be beneficial because (1) she suspected Angela was suffering from borderline personality disorder, and another evaluation would refine Angelas diagnosis; and (2) it is likely Angela would benefit from psychotropic medication. The therapist reported Angela remained focused on making the system at fault and had not accepted responsibility for her previous abuse of her children. She noted Angela often engages in stream of consciousness speaking, in which she jumps from one topic to another and had exhibited some paranoid tendencies. The court ordered a second 730 evaluation.

As for A.s individual therapy, her counselor reported A. has made progress in past months, but has lost ground this month. She is confused about what she wants. I suspect she is afraid of losing connection with her sisters and this drives her acting out and confusion.

The hearing scheduled for June was continued several times and eventually held in August. During those months, several reports detailed more emotional struggles with her stepmother, as well as additional tumultuous visits with Angela.

Y. stopped A.s therapy in May, believing it was not beneficial for her to dwell on her past rather than look to making her future a positive one. A. became increasingly argumentative with her stepmother, and struck her during an argument in May. A. reported she was angry and resentful of the fact her stepmother favored her biological children. A. did not feel like she belonged in the family. The social worker expressed concern A.s arguing with her stepmother [had] result[ed] in her being marginalized within the family, as the other five children in the home would tend to side with the stepmother. The social worker stated she was afraid the child was being excluded from family events due to her strained relationship with her stepmother, and [t]he childs mental and emotional state surely is impacted by this[.] The social worker opined, The childs anger towards her mother is an ongoing difficulty that impacts the childs functioning.

It was also reported Angela was not being compliant in maintaining visitation schedules or in calling A. Angela frequently called to change the day and time of visits, and spoke to Y. and his wife in an argumentative and disrespectful fashion. The social worker noted Y. appeared to be genuinely concerned about A. and wanted her to have a relationship with Angela, but admitted actually arranging and maintaining consistent contact with the [Angela was] extremely difficult. He [stated Angela] routinely call[ed], making accusations and was argumentative. He explained that simply arranging a visit or phone call becomes a frustrating chore.

The social worker expressed concerns about how the mental health of [Angela] was impacting her ability not only to parent, but also to care for herself. . . . [Angela] seem[ed] unable to maintain any kind of ongoing stability in her life, and ha[d] lost her home, her job, and her car. Moreover, the social worker reported Angelas mental health issues were impacting her ability to act in the best interests of her child. She noted, [Angela] routinely encourages the child to misbehave, to refuse to follow the directives of the stepmother, and to be disrespectful to the stepmother. This disrupts the childs living situation and negatively impacts the well-being of the child. The social worker attempted to stop this misconduct by reinstating a monitor for visitations. But, she realized Angela had already caused A.s relationship at home to deteriorate significantly. A. reported she was very unhappy in her stepmothers care.

In June 2006, Y. informed the social worker that A.s maternal cousin, Diana, was again interested in caring for the child, but felt she could not handle ongoing regular contact with Angela. He asked if SSA could limit Angelas contact with Diana. A. was enjoying more overnight visits with Dianas family.

A. had told the social worker she wanted to see her half sisters, but not her mother. She explained her mother had been acting weird again and making ominous statements about A.s stepmother such as, if I ever meet [her] in a dark alley . . . . Nevertheless, the social worker persuaded A. to attend a visit with her sisters and mother. All went well until her sisters left the visit. A. and Angela began to have a heated argument. A. told her mother she was worried about her, telling Angela she was smart and could get a job and a place to live if she would just stop acting crazy. The social worker ended the visit early, and A. was extremely upset and cried on the way home.

In the next interim report, Diana reported to the social worker that A. had returned from a second visit with her mother in tears. A. told Diana that Angela was threatening to get her stepmother, was taunting her, and was threatening to have her removed from Dianas house. A. admitted she got frustrated when talking with her mother, and calling Angela was not on [her] priority list. She stated she wished her mother would be normal and would like to have another visit with her for a shorter period of time. A. knew Angela was making harassing phone calls to Diana at home and at work, which was upsetting Diana.

After one month of caring for A., Diana told the social worker A. could no longer live with them. She explained, A. was arguing, not listening, not doing chores, does not like the rules, hits her sons, . . . [and was] disrespectful[.] She noted A. does not sleep well at night, averaging approximately four hours and often yells and argues in her sleep.

A few weeks later, Angela told the social worker visits with A. had been difficult, and she was afraid the child would physically attack her. The monitor reported that on one visit, Angela began by hitting A. on the buttocks, and then the two called each other names and yelled at each other. The monitor stated the fighting escalated to a point where she found it hard to intervene. The social worker opined, The visits have become detrimental and the child returns to the home of the father very anxious and displaces her anger on the rest of the family. A. told the social worker she hated her mother when she hits her on the buttocks, constantly criticizes, and humiliates her. A. recognized she becomes angry and agitated during visits with Angela and requested the amount and duration of visits be reduced. A. complained Angelas phone calls each day were disruptive to her fathers family, and she wanted it to stop.

Y. had agreed to take A. back to individual counseling. The stepmother stated her relationship with A. was improving and the child was welcome to remain in their home. The social worker concluded, The placement of the child with her father is most important at this time, and it is crucial for the child to establish a positive relationship with her father, stepmother[,] and the five half-siblings, who also reside in the home. She recommended that in light of the above, visitation be reduced to two times per month for a maximum duration of one hour. In addition, the monitor was to end visitation if Angela and A. had any verbal altercations. Angela was to stop calling Y.s home, and A. could call Angela one time per week at her discretion.

At the hearing, the court heard testimony from A. and Angela, considered a 730 psychological evaluation, and admitted several SSA reports. In the 730 evaluation, Dr. Rubina Najeeb diagnosed Angela with Mood Disorder NOS (Not Otherwise Specified) with Personality Disorder traits. He reported Angela had a history of easy irritability, anger outburst, agressivity, . . . agitation . . . and periods of depression. The testing revealed she had narcissistic, antisocial, and borderline personality disorders. He wrote, She displays manipulative behavior, disregard for [the] safety of her children, lack of true remorse for what she has placed her children through. There is a sense of entitlement that everyone needs to work around her needs and a tendency to take advantage of others to meet her needs. There is a certain lack of empathy. She also displays some borderline traits by showing a pattern of unstable relationships, affective instability, inappropriate intense anger and transient stress related paranoid features. These behaviors have caused devastating consequences for her children. [] Due to her psychiatric illness she has exposed her children to emotional and physical abuse.

Najeeb concluded, Until and unless [Angela] receives prolonged and intensive individual therapy to help her address the issues of minimization/denial, learn better coping skills for her various life stressors through therapy, she will continue the cycle of abuse. He recommended Angela continue to attend anger management classes and parenting classes. He noted, She also needs to be seen by a licensed [p]sychiatrist to stabilize and monitor her depressed mood and mood [instability]. She will probably do well with either [a]ntidepressants and/or [m]ood stabilizers to help control her depression, anger, aggression, and agitation.

A. testified she felt safe in her fathers home. She admitted she did not initially make any effort to get along with her stepmother because, based on what her mother had told her, A. believed her stepmother hated her. A. now wanted her relationship with her father and stepmother to improve, and felt it was better not to see Angela. She was not interested in undergoing any more therapy, and said she would be fine with visiting her mother only twice a month.

A. explained, I love my mom and I will do anything for my mom. I just -- I dont mind seeing her, but . . . my attitude changes when I come back from the visits -- and I just want to be able to live with my dad and be able to get along with all the kids and my step-mom. . . . [Because] my attitude changes when Im with my mom, I just think that maybe its better that -- if I dont see her. [] But, I mean, maybe in a couple of years or whenever my mom changes, I would want to see my mom every day because shes my mom and like . . . . I feel sorry for my mom a lot sometimes, but then I just think that pity will go only so far . . . .

Angela testified she had only seen A. two times in the past month. She admitted she and A. often fought during visits and raised their voices, which she understood was inappropriate behavior. She realized A. was angry at her and believed A. was upset about things she has heard other people say about her mother. Angela said she would like to participate in conjoint counseling with A., and her previous requests for this service were ignored by the social workers. She believed her relationship with A. was strained because she was not permitted to have enough visits and phone calls. She denied having mental health problems or a need for medication. However, Angela said that she would see a psychiatrist and follow his orders if it was a condition to continuing visits with A.

Y.s counsel asked the court to terminate jurisdiction. Angelas counsel disagreed with this recommendation, requesting continued jurisdiction, as well as an order for conjoint counseling. Angelas counsel also argued against SSAs opinion reduced visits and phone contact was needed. A.s counsel requested a reduction in visitation and opposed conjoint therapy due to the results of Angelas 730 evaluation. A.s counsel agreed with Y. the court should terminate jurisdiction.

The court continued its jurisdiction over the case, and ordered visitation be reduced as recommended by the social worker. It denied Angelas request for conjoint counseling. It explained that after considering all the testimony, evidence and argument of counsel, that there . . . is significant stress on the minor A., given [Angelas] current mental health status when it comes to visitation, and that if the court were to increase the visitation or, in fact, leave the visitation as it currently stands, its the courts belief, based on the evidence, . . . that stress would only serve to further separate mother and child. [] The court does not feel that its in the best interest of the child, at this time, to order conjoint therapy. However, the court intends to direct the agency to continue to evaluate the appropriateness of conjoint counseling between [Angela] and [A.], and to provide referrals if its determined to be in A.s best interest. [] [T]he court is directing the agency to take into consideration, [Angelas] compliance with any mental health recommendations. I note that . . . Najeeb feels very strongly [Angela] needs to be in a course of intensive therapy that includes visits to a psychiatrist for the purpose of monitoring [her] needs for medication and anger management . . . . So the Agency [should] evaluate how mothers doing in those areas when it looks at the appropriateness of conjoint [therapy].

II

Angela contends substantial evidence does not support the trial courts findings that conjoint therapy is not in A.s best interest or a decrease in visitation was necessary to protect A.s well-being. Angela asserts conjoint counseling would be a valuable tool in enhancing visitation and, therefore, the court abused its discretion in making its ruling. We disagree.

Section 361.2, subdivision (a), provides that when a court assumes jurisdiction of a minor it must determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of [s]ection 300, who desires to assume custody of the child. The court must place the child with that parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. ( 361.2, subd. (a).) Here, the court determined Y. desired to assume custody and placement with him, which would not pose any risk of harm to A.

Section 361.2 also provides the court with two options after it orders removal of a child from a parents home and determines that another parent, with whom the child did not previously reside, is available: (1) it may terminate jurisdiction and give the other parent legal and physical custody of the child ( 361.2, subd. (b)(1)); or

(2) it may grant custody to the other parent, but continue its jurisdiction and provide reunification services to either parent, or both ( 361.2, subd. (b)(3)).

Accordingly, the court is not required to provide reunification services to reunite the child with the former custodial parent. (See In re Erika W. (1994)

28 Cal.App.4th 470, 478 (Erika).) Services provided to the parent from whom the child was removed, may be intended by the court not to achieve reunification, but to assist the parent in strengthening and improving their relationship with the child. (See In re Sarah M. (1991) 233 Cal.App.3d 1486 [mothers plan was designed only to normalize her visitation with the child now in fathers custody], overruled on other grounds in In re Chantel S. (1996) 13 Cal.4th 196, 204.) Stated another way, When a child is placed in nonparental custody, reunification services are necessary to promote a possible return of the child to parental custody. However, when a child is placed in parental custody, this goal has already been met and therefore reunification services are not necessary. (Erika, supra, 28 Cal.App.4th at p. 478.)

In this case, the goal of reunification was close to being met because the court vested custody to Y. under a court-supervised family maintenance plan. Y. desired custody of A., and A. testified she felt safe in his home. The court reasonably concluded it was an appropriate permanent placement for A. Under the circumstances of this case, reunification with Angela was not believed to be a viable option. Accordingly, Angela was afforded only an enhancement plan. Her visitation schedule with A. was not necessarily intended to achieve reunification, but rather to improve and strengthen her relationship with her daughter.

Nevertheless, we recognize, Visitation may be seen as an element critical to promotion of the parents interest in the care and management of their children, even if actual physical custody is not the outcome. [Citation.] [Citation.] [T]he rights of children in their family relationships are at least as fundamental and compelling as those of their parents. [Citation.] (In re Emmanuel R. (2001) 94 Cal.App.4th 462-463 (Emmanuel).)

As pointed out by Angela, there is a vast body of case law discussing a parents fundamental right to visitation and a childs significant interest in maintaining contact with their biological family. Parents and children have recognized constitutional interests in visitation. Visitation rights arise from the very fact of parenthood and the constitutionally protected right to marry, establish a home and bring up children. [Citation.] [Citation.] A reunification plan must provide for visitation between parents and children that is as frequent as possible, consistent with the well-being of the child

( 362.1, subd. (a)(1)(A)), and ordinarily it is improper to suspend or halt visits even after the end of the reunification period. [Citations.] (Emmanuel, supra, 94 Cal.App.4th

at pp. 462-463.)

But, the facts of this case indicate continued or increased visitation between Angela and A. would not be in the childs best interests at this time. Angelas liberty interest in the care, custody, and companionship of A. cannot be maintained at the expense of the childs well-being. (In re Joseph B. (1996) 42 Cal.App.4th 890, 900.) The court correctly focused on the possibility of adverse psychological consequences of an unwanted visit between mother and child. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238.)

There was substantial evidence in the record A.s visits with her mother often resulted in her being angry and anxious. The reports indicated visits were becoming increasingly hostile and combative. A. testified she was often frustrated after visits, and her mental state was negatively affecting her relationship with her stepmother, father, and their children. Although only 14 years old, A. possessed the foresight and maturity to recognize she was displacing her frustration and anger against them, and concluded it would be better for her to not see Angela until she had changed her ways. A. realized it was important to focus on mending and strengthening her relationship with her fathers family, as it was the best chance she had for finding a permanent home. This same conclusion was reached by A.s therapist and the social workers. It was agreed that A. needed to have some uninterrupted time to bond with her new caretakers and siblings. Given this record, the court was well within its discretion to take action and address the emotional detriment to A. being caused by the visits.

Angela disputes the courts solution to the issues caused by the visits. She points to evidence A. wants to see Angela every day, and their problems during visitation merely signaled the need for conjoint counseling rather than a decrease in visitation. She asserts counseling would teach them how to interact and relate to each other in a healthy way and, therefore, preserve the parent-child relationship. But this argument ignores the findings made by Najeeb about Angelas mental health issues, and the courts conclusion Angela needed to address her unresolved mental health problems before it would consider conjoint therapy. It was determined Angela required intensive therapy, and perhaps psychotropic medication, to control the manipulative and aggressive behavior she often exhibited during visits with A.

Based on the above evidence, the court reasonably determined the option of conjoint counseling was premature, but could perhaps be considered in the future if Angela responded well to treatment. The court heard A.s testimony about her desire to visit her mother every day only if she acted like a regular mom and not all crazy. Angela fails to take into consideration the emotional toll and detriment that could be caused if A. were forced to visit and attend conjoint counseling against her will. It was not an abuse of discretion for the court to focus on A.s paramount need for stability, and a successful placement with her fathers family at this time in her life.

III

The orders are affirmed.

OLEARY, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.