Filed 12/20/17 In re A.V. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

C.V., mother of five children, ^[1] seeks relief from those portions of April 27, 2017, orders (one as to each child), issued at the six-month status review hearing, in which the juvenile court ordered that mother was to stay away from the children’s school campuses, and limited mother’s right to make educational decisions for all the children. We affirm.^[2]

FACTUAL AND PROCEDURAL BACKGROUND[3]

A. Background

In June 2016, the Contra Costa County Children and Family Services Bureau (the agency) detained mother’s five children: 15-year-old twins A. and N., 11-year-old X., 7-year-old J., and 5-year-old F. The family came to the attention of the agency after A. made a report that father had raped her. In the course of investigating the case, the agency social worker learned that father had been emotionally and physically abusing mother for several years. Mother believed father would kill the entire family if she tried to leave him. The twins asserted that for several years father had been sexually abusing them, and, both children had told their mother of the abuse after every occasion. However, the twins reported that mother could not protect them from father because father also physically assaulted and terrorized mother. Following the agency’s intervention, mother filed for divorce and secured a restraining order against father. The agency initially placed the female children A., N., and J., together in one foster care home and the male children X. and F. were placed together in another foster care home.

At the September 13, 2016, jurisdictional hearing, the juvenile court sustained the agency’s Welfare and Institutions Code section 300[4] petition allegations that A. and N. were persons described in subdivisions (a) (serious physical harm), (b) (failure to protect), and (d) (sexual abuse); J. was a person described in subdivisions (b) (failure to protect), (d) (sexual abuse), and (j) (sibling abuse); and X. and F. were persons described in subdivisions (b)(failure to protect) and (j) (sibling abuse). The court granted mother supervised visits with the children.

On October 20, 2016, the court held a dispositional hearing at which time the children were declared dependents of the court. The parties submitted on the agency’s recommendations that the court deny reunification services for father and grant reunification services to mother. The court commented on the “dynamics of the domestic violence and physical abuse in this household, the blurrying of lines, the need for survival and how that has affected mother’s ability to parent and understand appropriate parenting.” Nonetheless, the court was very concerned about mother’s behavior during supervised visits with the then 16-year-old twins.[5] The court found “really inappropriate” and “particularly troubling” mother’s conduct of “encouraging” the kissing between the twins and their boyfriends “during visits with a parent . . . of children “who have been sexually abused . . . .” The court hoped that, “with extensive therapeutic support,” mother would understand her own history, the role she played in allowing father to sexually and physically abuse the children, and her responsibility for the situation even though she was also a victim of father’s horrendous behavior. The court also found it was “important that mother continue to participate in the children’s education.” To that end, the court signed Judicial Council JV-535 form orders, allowing mother “to share” educational rights with the children’s caregivers.

B. Six-Month Status Review Hearing

Before the six-month status review hearing scheduled for April 13, 2017, the agency filed a report regarding the family’s circumstances. By that time all five children had been placed together in a foster family agency home. Mother had completed a parenting class, and was attending individual therapy, a non-offenders’ sexual abuse group, and a domestic violence program. The agency’s report included an evaluation of the children’s educational circumstances. Sixteen-year-old A. and N. attended tenth grade and had individual education plans (IEP).[6] Twelve-year-old X. attended sixth grade. His math teacher reported that X was performing below grade level, he was inconsistent in completing assignments on time, and his tendency to seek approval of his peers caused him trouble with his academics. Eight-year-old J. attended third grade. The child was not proficient in reading, and proficient or approaching proficiency in writing, language skills, speaking, and listening, and partially proficient in mathematics. A student study team meeting was scheduled to address concerns regarding J.’s academic progress. Six-year-old F. attended kindergarten and had an IEP to address speech deficits. The agency social worker opined that each child needed “intensive support” to meet their educational needs and noted that mother had attended IEP meetings.

On April 13, 2017, the parties appeared in court at which time mother’s counsel asked the court to schedule a contested six-month status review hearing. At that time the agency’s attorney informed the court that the agency was investigating mother’s unauthorized contact with the twins outside of supervised visits and telephone contacts, including at least one incident in which mother went to the twins’ school and took them out of school during the school day. The agency’s counsel asked the court to temporarily suspend mother’s visits and contacts with all the children pending the next hearing. Over mother’s objection “[f]or the record,” the court ordered that mother was to have no visits, phone calls, or contact with the children pending the next hearing scheduled for April 27, 2017.

Before the continued hearing on April 27, 2017, the agency filed a supplemental memo with additional information and new recommendations. The agency learned that the twins had been truant (missing portions or entire days) from school in February, March, and April 2017. Additionally, the foster care mother reported she had discovered the twins had cell phones they had kept hidden from her. A.’s cell phone had numerous text messages containing sexual content from approximately ten different people. Additionally, the cell phone contained several text messages between A. and mother. During one exchange, on Tuesday, April 4, 2017, at 11:08 p.m., A. confirmed mother’s agreement of an “early” pick up of the twins and one of their friends at their school the next day. The agency social worker also reported that on April 18, 2017, the twins left school and, when they could not be located, the matter was reported to the police. The next day, the police located the twins’ backpacks on the front porch of a group home in the county. A.’s backpack contained a handwritten letter she had written to a “Sir,” stating she was 16 years old, she wanted to know what it felt like to have “ ‘a daddy and kitten relationship,’ ” she asked if she could stay at his place, she would take the blame, and she listed 26 “ ‘Daddy’s Rules.’ ” N.’s backpack contained a knife and two letters indicating she would “ ‘kill’ ” herself and she had tried to do so before. Later on April 19, 2017, the police found the twins as they were “trying to get a male from the group home out of school.” The next day, April 20, 2017, the agency social worker moved the twins: A. was placed in a group home in Solano County and N. was placed in a group home in Contra Costa County.

The agency social worker spoke with mother concerning the twins’ situation. Mother acknowledged she had given the twins cell phones and picked them up at school on one occasion. The agency social worker admonished mother for providing the twins with cell phones and not advising an adult that the children had the devices. The agency social worker explained to mother that the twins’ access to cell phones put them at further risk of sexual exploitation. The agency social worker opined that mother’s conduct demonstrated her “clear lack of understanding” that her conduct put the twins at risk for sexual exploitation and showed mother’s lack of “consideration” for the children’s education. “On the one hand, she is expressing concern for their grades in an Individual Education Plan meeting and, on the other hand, mother is texting late on a school night and making plans [for the twins] to skip school.” The agency social worker asked the court to consider assigning “Educational Rights” for the twins to a “school appointed designee or group home designee,” after the twins were settled in their new placements and schools.

On April 27, 2017, the six-month status review hearing was reconvened. The juvenile court explained that although the matter had been scheduled as a contested hearing, mother’s counsel had withdrawn the request, and the matter would be considered on the basis of the agency’s six-month status review hearing report and the updated memorandum filed for the April 27, 2017 hearing. In pertinent part, the parties and the court discussed the agency’s recommendations concerning the children’s educational needs. The children’s attorney believed mother “actually [was] impeding . . . rather than supporting” the educational needs of A. and N. “by facilitating [their] . . . skipping school.” The children’s attorney asked the court (1) to arrange for the appointment of “a school district representative” to make educational decisions for the twins; (2) to arrange for the appointment of the foster care mother to make educational decisions for X., J., and F.; and (3) to issue stay-away orders, prohibiting mother from being on the campuses of the schools attended by all the children. Mother’s attorney objected to the issuance of stay-away orders and the suspension of mother’s educational rights. According to mother, a limitation on her right to participation in educational decisions would not promote the reunification process as she would not have the opportunity to show what she had learned from her classes and her conduct concerning the twins did not put the other children at risk. Mother’s attorney asked the court to consider allowing mother to participate in educational meetings concerning the twins either by telephone or at “the school district’s offices,” so that mother could participate in their education. Mother’s attorney also asked the court to consider protecting X., J., and F., by allowing mother shared educational rights with the children’s foster care mother.

Following counsel’s arguments, the juvenile court found mother was not an appropriate holder of educational rights for the children at that time and her conduct warranted stay-away orders prohibiting her presence at the children’s schools. In so ruling, the court explained: “I am really concerned. The reason why these children are before this Court is this is a very serious case. And mother only got services, quite frankly, due to the empathy of the [agency] and the Court for what she had endured herself, with hopes that [mother] could really gain some insight and show a protective capacity for her children. And even though . . . she’s been participating at A Step Forward, in spite of that participation, she has really set [up], especially [the twins] . . . for sexual exploitation by giving them electronic devices that were not authorized by the [agency], [and] signall[ing] to them it’s okay to skip school. . . . But it’s been time now. [Mother] has had the opportunity to engage in services . . . . And yet, clearly, mother doesn’t grasp the damage that’s been done to [the twins] and how at risk they truly are by giving them these cell phones and encouraging skipping school and that sort of thing.” The court also found that mother’s “poor choices and risky judgment” relative to the twins demonstrated she was not an appropriate holder of the educational rights for X., J., and F., because her conduct put those younger children at risk. The court recognized that given the years of abuse that mother had suffered, it was not reasonable to expect that six months of services would “fix” her problems and it was “clearly going to take a long time” to remedy the situation. Nonetheless, the court found mother’s “progress thus far is not very good.” The court issued stay-away orders prohibiting mother’s presence on the campuses of the schools attended by all the children and limited mother’s educational rights for all the children “in light of the recent developments and the history of these cases.”

DISCUSSION

I. Applicable Law and Standard of Review

“Parents have a constitutionally protected liberty interest in directing their children’s education. [Citations.] However, when a child is a dependent child, a court may limit a parent’s ability to make educational decisions on the child’s behalf by appointing a responsible adult to make educational decisions. ([§ 361, subd. (a)]; Cal. Rules of Court, rule 5.650(a).)” (In re R.W. (2009) 172 Cal.App.4th 1268, 1276 (R.W.).)

Section 319 provides that “[a]t the initial hearing upon the petition. . . or anytime thereafter up until the time that the minor is adjudged a dependent child of the court or a finding is made dismissing the petition, the court may temporarily limit the right of the parent . . . to make educational . . . decisions for the child . . . if all of the following conditions are found: [¶] (A) The parent . . . is unavailable, unable, or unwilling to exercise educational . . . rights for the child. [¶] (B) The county placing agency has made diligent efforts to locate and secure the participation of the parent . . . in educational . . . decisionmaking. [¶] (C) The child’s educational . . . needs cannot be met without the temporary appointment of a responsible adult.” (Id., subd. (g)(1).) However, “[a]n order made under [section 319] shall expire at the conclusion of the [disposition] hearing held pursuant to Section 361 or upon dismissal of the petition. Upon the entering of disposition orders, additional needed limitation on the parent’s . . . educational . . . rights shall be addressed pursuant to Section 361.” (Id., subd. (g)(4).) Section 361, subdivision (a)(1), provides that when “a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent . . . and shall by its order clearly and specifically set forth all those limitations. . . . The limitations may not exceed those necessary to protect the child. . . .” (Ibid.) The juvenile court must also consider limits on a parent’s right to make educational decisions at periodic status review hearings to be held every six months after the disposition orders. (§ 366, subd. (a)(1).) Before each status review hearing, the agency social worker is required to file a supplement report, which shall include a factual discussion of whether the parent “is unwilling or unable to participate” in making educational decisions, or “if other circumstances exist that compromise the ability” of the parent to make educational decisions. (Id., subd. (e).) At the status review hearings, the court is required to determine whether there should be any limitation on the parent’s right to make educational decisions, with the proviso that any “limitation . . . may not exceed those necessary to protect the child.” (Id., subd. (a)(1)(C).)

We review the juvenile court’s stay-away orders and limits on mother’s educational rights “under an abuse of discretion standard [citation], bearing in mind ‘[t]he focus of dependency proceedings is on the child, not the parent’ [citation].” (R.W., supra, 172 Cal.App.4th at p. 1277; In re D.C. (2015) 243 Cal.App.4th 41, 58-59 (D.C.) [court applied abuse of discretion standard to review limitation on parents’ educational rights].) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) As a reviewing court, we will not disturb the juvenile court’s ruling unless we find the court “exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. [Citations.]” (Id. at p. 318.) “ ‘When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” (Id. at p. 319.) ^[7]

II. Analysis

Mother contends the juvenile court committed reversible error by issuing the stay away orders and imposing limits on her educational rights because those measures were not necessary to protect the children. We disagree. “Just as in other areas of dependency law,” the juvenile court was not required to wait until harm occurred before making orders protecting the children relative to their educational needs. (D.C., supra, 243 Cal.App.4th at p. 58; In re Eric B. (1987) 189 Cal.App.3d 996, 1004 [“[t]he purpose of dependency proceedings is to prevent risk, not ignore it”].) We also reject mother’s contention that the purpose of the preventive orders was to punish her for mistakes she made during the first six months of services. “When ruling in dependency proceedings, the welfare of the minor is the paramount concern of the court. [Citation.] The purpose of these proceedings is not to punish the parent, but to protect the child. [Citation.]” (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 106; see In re Samuel G. (2009) 174 Cal.App.4th 502, 510 [“[a]ll educational decisions must be based on the best interests of the child”].) Given the family domestic violence dynamics that led to the dependency in this case, the juvenile court appropriately acknowledged that mother could not be expected to resolve her problems by participation in services for six months. Nonetheless, the court reasonably found that mother’s behavior relative to the twins (allowing them to miss school and use cell phones without adult supervision) raised sufficient cause for concern to justify the issuance of preventive orders as to all the children. Mother’s love of her children and her willingness to exercise her educational rights does not call into question the court’s issuance of the challenged orders. At the time of the six-month status review hearing the juvenile court appropriately found that mother’s own situation and her limited progress in addressing her problems albeit participating in services compromised her ability to make reasonable decisions regarding the children’s education. Additionally, the record shows the court gave due consideration to mother’s objections to the stay away orders and her requests to allow her to participate in educational decisions, but apparently found her suggestions would not be feasible or appropriate. We see nothing in the record or the cases cited by mother from which we can conclude the juvenile court was required, as a matter of law, to allow mother to remain as the holder or a shared holder of the educational rights for the children. We conclude by noting that the orders under review do not preclude mother from seeking restoration of her right to make educational decisions for the children in the future.

DISPOSITION

The appeals from the orders, dated April 13, 2017, are dismissed. The orders, dated April 27, 2017, are affirmed.

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Jenkins, J.

We concur:

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McGuiness, P. J.

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Pollak, J.

In re A.V., et al., A151446