Filed 9/10/18 In re R.C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Rebekah S. Sass, under appointment by the Court of Appeal, for Defendant and Appellant T.R.

Kristin B. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Robert C.

John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

T.R. and Robert C. are the mother and father of R.C., born in 2008, and N.C., born in 2016. In a combined appeal, mother and father contest the jurisdiction and disposition orders of the juvenile court. Father contends there was insufficient evidence to support the court’s orders finding jurisdiction and removing the children from parental custody, and in suspending his visitation rights. Mother contends only that the court violated her procedural due process rights by suspending her educational rights to R.C. without prior written notice of the issue and by failing to disclose the identity of the designated holder of the educational rights. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

In April of 2017[1], R.C. was interviewed at his elementary school after the Stanislaus County Community Services Agency (agency) received a referral of domestic violence between mother and father. R.C. described arguments at home as beginning with mother “shouting,” then mother and father both shouting, then mother “go[ing] crazy” and the two throwing objects at each other. The most recent incident occurred during spring break, when his parents argued and mother told R.C. to go to his bedroom with N.C. and lock the door. Law enforcement was called. R.C. reported paternal grandmother was home at the time.

A social worker went to the home. Mother answered the door but would not allow the worker in and instead came out onto the porch. When the social worker explained that she had spoken to R.C. at school, mother became irate, cursed at the social worker, went back into the house and slammed the door. Father later called the social worker and argued over the telephone. The social worker was eventually able to arrange a meeting with mother and father.

The social worker met with mother and father on the porch. N.C. had no visible marks or bruises, but was too young to be interviewed. Mother acknowledged she and father got into arguments, but claimed they were verbal only and not physical. She stated she had a panic attack at the time of the last argument and called paramedics, but law enforcement arrived. The police report indicated it was a verbal altercation regarding mother not properly cleaning the home. Father reportedly told the children mother did not love them, and mother swung her arms in the air, unintentionally hitting father. Father denied any domestic violence.

Although R.C. had reported grandmother was home during the incident, grandmother denied being there. Grandmother denied mother and father had any domestic violence, substance abuse or mental health issues. Mother and father declined voluntary services.

On July 2, the social worker received another referral from law enforcement regarding domestic violence involving mother and father. The referral indicated officers had been called to the house for domestic violence disputes more than 10 times in the last 30 days. Mother told officers father was on drugs and made her feel worthless because he called her names. She had recently been placed on a 5150 hold because she wanted to hurt herself. Officers noted a “staff with a knife on the end of it” in the home. Father said he made it to protect himself from a neighbor who attacked him.

Before the agency could investigate the July 2 referral, it received another referral from law enforcement that they had responded to the home on July 4, with grandmother saying they might need “hostage negotiations.” When officers arrived, all parties stated the argument was verbal only. But grandmother stated father was diagnosed with paranoid schizophrenia and she was looking for a hospital for him. Father was holding N.C. and would not put him down to allow him to go to grandmother.

On July 7, grandmother called the social worker to state father was diagnosed with paranoid schizophrenia two or three years ago and was on medication. Grandmother now acknowledged ongoing domestic violence between mother and father had occurred in the home for a few years. She also stated father had hit her hands and mother had threatened her. While grandmother had denied domestic violence between mother and father in her April conversation, she now confirmed that there were numerous incidents of domestic violence between the parents.

On July 11, two social workers went to mother and father’s home. Father answered the door and said mother and the children were at the doctor’s office. The social workers stated they would return later. However, as the social workers were driving back to the agency, father pulled up next to them at a traffic light and demanded that they follow him to the doctor’s office and talk to the family. The social worker proceeded to drive away, but father followed them onto the freeway, driving recklessly as he did so and shouting profanities at them. He stopped when the social workers drove to a police station.

On July 13, a social work supervisor made a home visit and was met by father. During their conversation, father was “tangential and had labile mood swings.” Father was easily distracted, his outward expressions changed from loud to very quiet and calm, all while moving constantly. When the supervisor attempted to discuss the incident in which father followed the social workers in their car, he threw back his head and laughed. The supervisor was unable to refocus father and determined he could not have a meaningful conversation with father.

The supervisor then made contact with mother, who minimized her fights with father as only verbal arguments. Father joined the conversation. Both minimized the issues law enforcement reported. They “shrug[ed] off” information that there might be a possibility of the court system getting involved.

On July 12, the agency received a summary of law enforcement call logs for the recent calls to mother and father’s home. They included calls on June 8, when it was reported cocaine was involved in an altercation; June 16, which involved throwing objects; June 18, in which mother reported father made her want to kill herself and she was placed on a 5150 hold; June 20, when father reported mother punched him in the face, which he denied when police arrived; June 28, when father threatened to cut his throat; a second call on June 28 when mother threatened to hit father and police noted both mother and father had psychological issues; June 29, when mother told police she was going to stab father while he slept and stab herself; June 30, when grandmother reported a physical altercation between mother and father involving a knife; July 3, when grandmother reported father verbally abused the children; and July 4, when there was a family fight over a pack of hot dogs and father and grandmother hit each other.

Detention

The agency filed a first amended Welfare and Institutions Code section 300, subdivision (b)[2] petition on July 28, alleging domestic violence and mental health issues placed the children at risk of serious physical harm. The children were taken into protective custody on July 26. Mother and father were given referrals for services.

At the detention hearing July 31, the juvenile court found a prima facie showing to detain the children. Supervised visits were ordered. Jurisdiction/disposition was set for September 7.

On August 1, the day after the hearing, when the social worker took the children to the back of the agency building to meet the foster parent, father appeared and walked up to the children, upsetting them both. After the foster parent left with the children, father and mother followed the foster parent to a family member’s home and police were called. The agency filed for a restraining order preventing father from having contact with the foster family or the children outside of scheduled visitation. A temporary restraining order was granted and a hearing set for August 29, but later dropped for proof of service.

Jurisdiction and Disposition

The report prepared in anticipation of the September 9 jurisdiction/disposition hearing stated the children were moved to a new placement following the August 1 incident. Father then began harassing the new foster family by reporting to local law enforcement that the foster family was involved in drug activity. When confronted with this, father rambled on about a larger conspiracy involving motorcycle gangs and child protective services. The children had to again be moved. R.C. was said to be struggling with anger issues. Although several family members came forward to discuss placement, they all expressed concern that, due to father’s behavior, the children might not be safe in their homes.

Due to father’s behavior, the agency made arrangements for safety during and after visits. Mother and father were required to go through the metal detector when entering the building, visits were closely supervised, and, at the end of visits, mother and father were required to remain in the visit room for 15 minutes to allow the children and foster parents to leave without being followed. Security was on stand-by.

Father’s criminal history report indicated he had frequent contact with the criminal justice system due to acts of violence, beginning when he was a juvenile and had a sustained 2002 petition for assault and battery. He had a 2006 conviction for obstructing a police officer and a 2007 conviction for felony assault with a deadly weapon, great bodily injury likely. In 2009 father had a probation violation for inflicting corporal injury on a spouse. And in 2016 he was charged with battery on a person, but no disposition listed.

Both mother and father had appointments at Sierra Vista, but both rescheduled for dates after the scheduled jurisdiction/disposition hearing. Mother attended a substance use disorder (SUD) assessment and no treatment was recommended. Father attended his SUD assessment but, because he refused to sign releases, his assessment remained incomplete. Mother declined to participate in a social history interview; father did and reported his support system consisted of himself and God, he denied mental health issues, drug or alcohol use, and did not think he needed any help in order to reunify with his children.

The agency recommended the children be removed from mother and father’s custody, and mother and father be offered anger management and domestic violence assessments and counseling.

The visitation report for August 15 described father as trying to engage the visit supervisor in a discussion about the “unsafe house” where the children were placed. Father showed the visitation supervisor a photo on his telephone he described as the house. After the social worker was called and confirmed the children had never been placed in that house, father said “[w]e are building a case against the county.” During the visit, father continued to obsess on and discuss his perception of the injustices of the case.

After the visit, father, mother, the social worker and a police officer discussed the restraining order and the inappropriateness of father’s behavior toward the foster parents. Father was informed the children had to again be moved due to his behavior. Father continued to tell the officer he was contacting the FBI regarding the foster home. Mother denied being involved.

On September 7, the jurisdiction/disposition hearing was trailed to September 22. An addendum report filed for the September 22 hearing chronicled the various visits in August and September between mother, father and the children. Father was not able to focus on the children during the visits, instead obsessing on his complaints about the foster homes the children were in. On August 17, mother and father started a petition online entitled “Help bring [R.C.] and [N.C.] home!!!!!!” They posted the petition on Facebook, including the address of the home father had followed the foster parent to on August 1. At the August 22 visit, father encouraged R.C. to report concerns about his new foster home to the social worker.

On August 29, the agency organized a community visit for R.C.’s birthday at Chuck E. Cheese. The family was told they could invite some of R.C.’s friends and family, but mother and father declined due to conflicts with family members. The event was therefore limited to R.C., N.C., mother and father. To ensure the safety of the children, two social workers were present near the family.

At the September 5 visit, father again interrogated R.C. about his placement and instructed him to be their “eyes and ears” to keep N.C. safe. Father was repeatedly told to focus on the visit, but father continued to question R.C. about his foster placement, insisting he was building a case against the agency. During visits, N.C. did not want to be held by father. Father was told separately that, if he did not cease having inappropriate conversations with his children, the visits would be cancelled. When father returned to the visit, he told R.C. the social worker was accusing him of coaching R.C. and told R.C. how the social worker disturbed him. When the visit was ended, mother and father refused to wait the required 15 minutes before they left.

On September 7, the social worker received an email from the foster family agency that the foster home was getting calls almost daily from R.C.’s school. R.C. was refusing to do his homework, he refused to shower, he had grabbed a girl’s arm and pulled her, he pulled a chair out from under another girl, he pushed kids to get them out of his way, he yelled at a teacher and came at her, and he told another teacher to shut up.

During a visit on September 12, father told R.C. details about the foster family dogs, and when R.C. asked how he knew these things, father said he was a “genius.” When R.C. complained to father that he had lost a tooth but the tooth fairy had not come, father said the tooth fairy might not want “to show up at that evil house.” Father and mother again refused to stay the required 15 minutes after the meeting. When given a copy of the visitation center rules, father tossed them aside.

The following day, the social worker sent a copy of the rules and additional safety measures father and mother were to abide by to them and their attorneys. Because father had taken videos at the visits with his cell phone, invading the privacy of other families, mother and father were no longer allowed to bring their cell phones into the visitation area.

On September 18, an email was received from the foster family agency that R.C. had been suspended from school for two days due to biting another child on the playground. Another email on September 21 stated R.C. was suspended for three days for punching a child in the eye. R.C. showed no remorse. On another occasion R.C. had reportedly stomped on the head of another foster child. R.C. was told to apologize, which he did, but he then choked the child because he was “annoying.” A Student Study Team (SST) meeting was scheduled for October 10, with an earlier meeting to integrate him back into school the following week.

At the scheduled September 22 hearing, both mother and father requested a contested jurisdiction/disposition hearing, which was set for October 16.

At the September 22 hearing, the agency asked that the juvenile court address the issues of visitation and educational rights to R.C. The agency asked that the juvenile court make a finding of detriment as to the visits or, in the alternative, that visits be suspended pending the next hearing, based on R.C.’s reactions to visits and mother and father’s behaviors at the visits. The agency also asked that mother and father’s educational rights to R.C. be suspended. Because the agency did not have, as yet, an individual in mind to assign educational rights to, it would have to be a district surrogate. Minors’ counsel indicated a preference for someone other than a district surrogate and, as to visits, acknowledging R.C. was “very destructive” after visits, requested a temporary suspension rather than a current finding of detriment. Mother and father, through counsel, both objected to any change in visitation or educational rights.

The juvenile court stated it was clear R.C.’s education issues needed to be addressed since he had an SST meeting scheduled. The court noted, based on personal observations of father, that it had concerns about father’s inability to behave properly. Although it also had concerns about mother, it suspended father’s educational rights and allowed mother to attend the SST. Father was warned not to be present or near the school or a restraining order would be issued.

The juvenile court also suspended father’s visitation rights pending the next hearing, noting his behavior during visits was inappropriate. Mother’s visits were cut back to every other week for one hour. Visits for mother would be terminated if she discussed the case with the children.

An addendum report filed prior to the October 16 contested hearing stated mother’s attorney had informed the social worker she would not attend visits as long as father was not allowed to attend. Mother did not attend a scheduled October 3 visit. On that same date, mother refused to sign paperwork for a full testing assessment for R.C. at school, stating the only reason he was struggling was because he was out of mother and father’s care. The social worker reminded mother that R.C.’s cumulative record revealed he had struggled throughout his schooling.

The October 16 hearing was trailed to October 17. Mother was not present; father appeared with counsel. Mother, through counsel, made an offer of proof denying the allegations of the petition and insisting any altercations between mother and father were verbal only. She alleged R.C. was acting out because he was removed from mother and father’s care.

Father also proceeded by way of offer of proof. According to counsel, father would testify denying the allegations in the petition, insist he and mother had only verbal altercations, that grandmother’s reports were untruthful, and R.C. would do better back in his home. Father’s counsel asked that custody be restored to him; if not, that visits be restored. He also asked that his educational rights be restored.

When asked by the juvenile court to address educational rights, counsel for the agency stated the social worker had asked mother to sign paperwork, she again refused and continued to refuse. The agency hoped to keep the identity of the educational rights holder confidential from mother and father, but did not object to mother and father’s attorneys knowing the identity of that person. This confidentiality request was made due to father’s continued erratic and harassing behavior.

The juvenile court found the petition true. It noted the effect domestic violence was having on R.C., adversely impacting his brain development and contributing to his acting up. The court found clear and convincing evidence of a substantial risk of harm if R.C. and N.C. were returned to mother or father’s care and they were declared dependents of the court. Reunification services were granted mother and father.

As to visits, the court noted that it had suspended father’s visitation temporarily due to his extreme behavior and the need to keep the children safe. The court stated it would like to consider therapeutic visits but would continue to suspend visits for a short time to see how the children were doing and set a progress review for November 8 to revisit the issue.

The juvenile court suspended mother and father’s educational rights and appointed a confidential education rights holder. A review on that issue was also scheduled for November 8.

Progress Review

On November 8, the agency provided an update indicating father did not show for his intake appointment at Sierra Vista in September and had not contacted them since. While father had been notified to make an appointment for a psychological evaluation, he had not done so. Father had not returned to the agency to complete his SUD assessment, and he had not provided the social worker with any letters, pictures or any form of communication for his children.

Mother had a similar lack of compliance. She had not contacted Sierra Vista; she had not made an appointment for a psychological evaluation; and she had not visited the children since September 19, stating she was not going to visit without father, or she was ill or had to work.

R.C. continued in independent study. A full mental health assessment was scheduled for him on November 7, but anxiety about whether or not mother was going to visit prevented the assessment.

Neither mother nor father was present at the progress review hearing November 8. Counsel for father acknowledged father’s lack of progress but continued to object to the lack of visits and educational rights. The juvenile court noted father needed, at a minimum, to have a psychotropic medication evaluation and participate in the psychological evaluation. Counsel for mother stated she intended to start services.

Counsel for the minors wanted the record to be clear that visits were not being denied father because he was not participating in services, but because the visits were detrimental and he needed to engage in some services to be able to have safe visits. The juvenile court concurred. Because mother’s failure to visit negatively affected the children, the court ordered mother to have at least twice monthly visits, contingent on her calling the day previous to confirm she was coming. Failure to call would forfeit the visit.

The order suspending father’s visits and both mother and father’s educational rights was continued “in full force and effect.” A review hearing was set for April 10, 2018.

DISCUSSION

1. SUFFICIENT EVIDENCE SUPPORTS JURISDICTIONAL AND DISPOSITIONAL ORDERS

Father argues there was no substantial evidence to support jurisdiction over his children. He also argues the juvenile court erred in its dispositional order removing the children from his physical custody. We affirm.

Standard of Review

“We review the juvenile court’s jurisdiction findings and disposition order for substantial evidence. [Citations.] Under this standard ‘[w]e review the record to determine whether there is any substantial evidence to support the juvenile court’s conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court’s orders, if possible.’ [Citations.]” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384.) We look “to see if substantial evidence, whether contradicted or uncontradicted, supports the findings.” (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.) “Appellant has the burden to show that the evidence was not sufficient to support the findings and orders. [Citation.] The reviewing court may not reweigh the evidence or express an independent judgment. [Citation.]” (Ibid.)

Substantial Evidence Supports Jurisdictional Findings

For a child to be found a dependent of the court under section 300, subdivision (b)(1), the court must find, in pertinent part: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child ....” Under section 300, subdivision (b)(1), the agency must demonstrate three elements by a preponderance of the evidence: “(1) one or more of the statutorily specified omissions in providing care for the child (inability to protect or supervise the child ...); (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 561.)

“‘When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.’” (In re I.J. (2013) 56 Cal.4th 766, 773.) Here the petition asserted mother and father’s numerous past and current incidents of domestic violence and possible mental health issues led to the conclusion that the children were at risk of “serious physical harm.”

Father contends that, while the agency alleged a risk of serious physical harm to R.C. and N.C., there was no evidence presented that serious physical harm had occurred to either of the children in the past or that they were currently at substantial risk of physical harm. Father bases his argument on the fact that the arguments between himself and mother were always only verbal, therefore not rising to a level of domestic violence sufficient to sustain jurisdiction. We disagree.

Father presents a very narrow view of the evidence. Here, the incident which led to the agency’s interest in the welfare of the children occurred in April 2017 and was one in which father called mother names because the house was not clean and organized. During the incident, father told the children mother did not love them, which resulted in mother allegedly hitting father. When asked about the incident, R.C. informed the social worker mother and father had continuous arguments which began with mother yelling, then both mother and father yelling, mother then “go[ing] crazy,” and mother and father then throwing objects as each other.

Additional numerous and escalating incidents involving violence or threats of violence in June and July again brought the family to the attention of the agency, including incidents which involved throwing objects (June 16); mother threatening to kill herself due to father’s behavior (June 18); father reportedly punching mother in the face (June 20); father threatening to cut his throat and mother threatening to hit father (June 28); mother telling law enforcement she was going to stab father while he slept and stab herself (June 29); a physical altercation reported by grandmother between mother and father involving a knife (June 30); and an incident in which the family fought over a pack of hot dogs and father and grandmother hit each other (July 4).

It is true mother and father both denied any physical violence ever occurred between the two of them. However, even if the only evidence of violence in the home was R.C.’s statement that mother and father threw objects at each other, which R.C. observed apparently on multiple occasions, mother and father’s history of frequent arguments with threats of violence is sufficient to support a finding of domestic violence in the home, posing a substantial risk of harm to the children.

Exposure to domestic violence may serve as a basis for jurisdiction under section 300, subdivision (b). (In re R.C. (2012) 210 Cal.App.4th 930, 941.) “‘Both common sense and expert opinion indicate spousal abuse is detrimental to children.’ [Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 576.) Children suffer emotionally witnessing violence between parents and are at a risk of harm of suffering physically because they might wander into a room where it is occurring and be accidentally injured by a thrown object, fist, arm, foot or leg. (Ibid.)

Although the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm, the juvenile court may consider past events when determining whether a child presently needs the court’s protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in In re Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) A parent’s past conduct is a good predictor of future behavior. (In re Kadence P., supra, 241 Cal.App.4th at p. 1383; In re Petra B. (1989) 216 Cal.App.3d 1163, 1169–1170.) “Facts supporting allegations that a child is one described by section 300 are cumulative,” and the court “must consider all the circumstances affecting the child, wherever they occur.” (In re Hadley B. (2007) 148 Cal.App.4th 1041, 1048, 1050.) Here there was also evidence of father’s violent past, with a sustained petition for assault and battery as a juvenile, a 2007 conviction for assault with a deadly weapon, a 2009 probation violation for inflicting corporal injury on a spouse, and a 2016 allegation of battery on a person.

Moreover, the juvenile court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) The focus of section 300 is on averting harm to the child. (In re Jaime M. (1982) 134 Cal.App.3d 530, 536.)

Substantial evidence supports the jurisdiction finding that the children were at substantial risk of serious physical harm due to domestic violence in the home, and we reject father’s assertion to the contrary.

Substantial Evidence Supports Removal Findings

“A dependent child shall not be taken from the physical custody of his or her parents … with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed … [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s … physical custody.” (§ 361, subd. (c)(1).) “‘The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.’ [Citation.] The court may consider a parent’s past conduct as well as present circumstances.” (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)

Father contends there was insufficient evidence to support the removal order, again claiming “there was no evidence that any intentional violent physical contact had occurred during the arguments” between mother and father. We disagree.

As chronicled above, mother and father have a significant and escalating history of both physical violence and threats of violence, placing the children at risk of harm. Moreover, father was not amendable to voluntary intervention or cooperation with the agency. Father did nothing between the detention and disposition hearings—from July 31 to October 17—to mitigate the problems that led to intervention. He failed to utilize any of the referrals given him for services and instead spent his energy attempting to fight the agency, by confronting the foster parent, the children, the visitation supervisor, and various social workers. The incidents of domestic violence would continue absent intervention and removal of the children from the home.

We reject father’s claim. Substantial evidence supports the juvenile court’s finding that the children were at risk of both physical and emotional harm and there was no means available, short of removal, to protect them.

2. JUVENILE COURT DID NOT ERR IN SUSPENDING VISITATION

Father contends there is insufficient evidence to support the juvenile court’s September 22 order temporarily suspending his visitation with R.C. and N.C. prior to jurisdiction/disposition. We affirm.

Applicable Law and Analysis

“Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings.” (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) Under the controlling statute, visitation “shall be as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).) However, “[n]o visitation order shall jeopardize the safety of the child.” (§ 362.1, subd. (a)(1)(B).) “It is ordinarily improper to deny visitation absent a showing of detriment.” (In re Mark L., supra, at p. 580; In re Luke L. (1996) 44 Cal.App.4th 670, 679; In re David D. (1994) 28 Cal.App.4th 941, 954.)

There appears to be some disagreement as to the appropriate standard of review in these matters. Some courts have applied the substantial evidence test, others have reviewed for abuse of discretion, and still others have applied a blended standard, finding no abuse of discretion where substantial evidence supports the order. (See In re T.M. (2016) 4 Cal.App.5th 1214, 1219-1221 [collecting cases and applying a blended standard].) It is unclear “whether the two standards are so different in this context” (In re D.B. (2013) 217 Cal.App.4th 1080, 1092, fn. 7), and we reach the same conclusion under any of the articulated standards.

There is also currently a split of authority as to whether section 362.1 mandates visitation absent evidence of a threat to the minor’s physical safety (see, e.g., In re C.C. (2009) 172 Cal.App.4th 1481, 1491–1492) or whether courts may also deny visitation based on potential harm to the minor’s emotional well-being (see, e.g. In re T.M., supra, 4 Cal.App.5th at pp. 1219–1220). Here, as mother and father visited the children together, both the physical safety and the emotional well-being of the children, particularly R.C., were concerns leading to suspended visitation.

Father’s behavior threatened the safety and well-being of the children. The day after the detention hearing, father intercepted the children as they were leaving with the new foster parent. He followed the foster parent to what he believed was their home and police had to be called. Because of this, the children were moved to a new confidential foster home, which father also located and began harassing. This resulted in the children being moved to a third confidential foster home.

Father’s propensity for irrational behavior was evidenced by the fact that family members who were contacted about possible placement expressed concern that, due to father’s behavior, the children might not be safe in their homes.

After several of these events, the agency took additional measures to continue father’s visits with the children, while ensuring their safety. Father and mother were required to go through a metal detector when entering the building; visits were closely supervised; and mother and father were required to remain in the room for 15 minutes after visits ended, to allow the children and their foster family to leave without harassment. Security was on standby during visits.

Over the next two months, father became more agitated and obsessed during visits and less willing to cooperate with the safety measures in place. He ignored the 15-minute wait time on several occasions. Father also knew details about the foster family’s dogs, leading to conclusions that he had located and stalked the foster home.

And despite guidance from the visitation supervisor and social workers, father insisted on interrogating R.C. during visits about the foster homes and made allegations against the foster homes, calling them evil and accusing them of being drug dealers. Father’s conduct during visits, in constantly probing R.C. to disclose concerns he had about the homes, emotionally undermined the children and put their need for security in jeopardy. This was evidenced by R.C. escalating bad behavior as well.

When the juvenile court temporarily suspended visitation on September 22, it stated father did not know how to behave appropriately at visits and his behavior was “going to have to change significantly.” At the October 17 contested jurisdiction/disposition hearing, the court expressed concern that the children needed to be able to see their father and expressed hope father would engage in services so that the court felt “more comfortable about restoring visits.” A progress review hearing to address this issue was held November 8. At this point, the court noted father’s complete lack of progress and that father, at a minimum, needed to engage in a psychotropic medication assessment and participate in a psychological evaluation. The order suspending the visits was continued “in full force and effect.” A review hearing was set for April 10, 2018.

“‘[T]he parents’ interest in the care, custody and companionship of their children is not to be maintained at the child’s expense .…’ [Citation.]” (In re T.M., supra, 4 Cal.App.5th at p. 1220; see also In re S.H. (2003) 111 Cal.App.4th 310, 317 [“It is the juvenile court’s 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”].) However, the parents’ interests are protected under the dependency framework as “there will be subsequent hearings, and therefore ample opportunity for the juvenile court to revisit the appropriateness of visitation in light of new circumstances, including progress in [offered services].” (In re T.M., supra, at p. 1220.)

Here, this is what the juvenile court did in its visitation order and subsequent hearings on the issue, and we see no error.

3. THE JUVENILE COURT DID NOT ERR IN SUSPENDING EDUCATIONAL RIGHTS

Mother’s only contention on appeal involves the juvenile court’s suspension of her educational rights as to R.C. She contends she was denied procedural due process when she did not receive notice that educational rights would be an issue at the disposition hearing. She also contends that keeping the identity of the substitute holder of educational rights confidential violated her due process rights because she was unable to object to the individual on the basis of a conflict of interest. We affirm.

Procedural Background

The issue of suspending educational rights was first raised on September 22, at the scheduled jurisdiction/disposition hearing. At that time, the agency indicated R.C. was having behavioral problems at school which needed addressing. The agency asked that the educational rights of both parents be limited. Mother’s counsel objected, noting “[n]o one has ever asked [mother] if she would be willing to participate.” Father’s counsel also stated he had not heard or received any evidence father was unable or unavailable to exercise his educational rights to R.C. The juvenile court ruled, stating, “[A]lthough[] I have some concerns about the mother, I have more concerns about the father; so, at this point – and it can always come back before me if there are any issues – I’m going to suspend the father’s educational rights. The mother will continue to hold educational rights. The mother will be entitled to attend the SST.” The contested disposition/jurisdiction hearing was set for October 16, and mother and father ordered to return.

Prior to the contested hearing, mother announced she would not attend visits with her children as long as father’s visits were suspended, and she did not attend the October 3 scheduled visit. R.C.’s behavior continued to deteriorate at school, which resulted in him being placed on independent study pending a full assessment. Mother was contacted concerning this development and asked to come to the agency to sign the necessary documents for the assessment for R.C., but mother blamed the system and refused until she reviewed it with her lawyer. An addendum report filed with the juvenile court October 5 was served on mother. The report set forth the above facts and R.C.’s report cards for the previous four years of education, showing a pattern of behavioral issues.

The October 16 contested jurisdiction/disposition hearing was held October 17, at which time mother failed to appear but was represented by counsel. The issue of educational rights was raised by counsel for the children, asking that it be addressed. The agency asked that the educational rights be assigned to a confidential third party. The juvenile court granted the request, stating:

“The Court, on a temporary basis, will suspend the parents’ educational rights, and will appoint a confidential educational rights holder, but that issue will also be re-addressed on November 8th, because I don’t want these type of orders going on for too long. But under the circumstances and everything I have heard, I think it is appropriate, although, it is most unusual, but we need to move forward and get to the process of reunification and seeing good progress,”

At the November 8 progress review hearing, mother again failed to appear. It was reported that she continued to refuse to visit the children. Mother’s counsel made no request that mother’s educational rights be restored and the juvenile court affirmed the previous order.

Applicable Law and Analysis

The right of a parent to direct the education and upbringing of his or her children is a fundamental right guaranteed by the Due Process Clause of the Fourteenth Amendment. (Troxel v. Granville (2000) 530 U.S. 57, 66.) In dependency proceedings, these interests are balanced against the child’s significant interest in living free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver. (In re David B. (1979) 91 Cal.App.3d 184, 192-193.) These countervailing principles are reflected in section 361, subdivision (a)(1), which provides in part:

“In all cases in which 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 or guardian and shall by its order clearly and specifically set forth all those limitations. Any limitation on the right of the parent … to make educational or developmental services decisions for the child shall be specifically addressed in the court order. The limitations may not exceed those necessary to protect the child.”

When a child is a dependent of the juvenile court, the court may limit a parent’s right to control educational decisions for his or her child. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1066-1067.) Any limitation of a parent’s right to direct his or her child’s education must be narrowly tailored. (§ 361, subd. (a)(1).) When the state seeks to curtail or abrogate a constitutionally protected interest, the ensuing judicial proceeding must be “fundamentally fair.” (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 33.)

Mother contends first her procedural due process rights were violated when she did not receive specific notice prior to the October 17 hearing that the agency intended to limit her educational rights. We disagree.

The contents of notice in a juvenile dependency proceeding is statutory. (In re

A.D. (2011) 196 Cal.App.4th 1319, 1324-1325.) Section 291 controls the required content of a notice for hearing after the initial hearing, including the jurisdiction and disposition hearings. It provides, in pertinent part, that the notice include “[e]ach section and subdivision under which the proceeding has been initiated” (§ 291, subd. (d)(3)) and the date, time and place of the hearing (§ 291, subd. (d)(4)). Notice of the hearing at issue was served on September 27 on the Judicial Council approved form.

By statute, the agency was not required to give additional notice of the educational rights issue. Further, the hearing was set to be a jurisdiction and disposition hearing and, if the juvenile court declared the children to be dependents of the juvenile court at that time, by the terms of section 361, the issue of possible limitation of educational rights was an included issue to be addressed.

In addition, the juvenile court informed the parties at the September 22 hearing that, while it was not suspending mother’s educational rights at that time, it could readdress the issue. Mother was apprised of the ongoing situation with R.C. and the need for as assessment in an addendum report filed and served October 5. Mother chose not to sign the release to begin the assessment and also failed to appear at the subsequent hearing, where she could have argued against it.

Mother’s due process rights to notice and a right to be heard on the need for a substitute educational rights holder were not violated.

Mother also contends her due process rights were violated by the juvenile court’s decision to maintain the confidentiality of the individual appointed to hold R.C.’s educational rights. We disagree.

The juvenile court may issue reasonable orders for the care, supervision, custody, conduct, maintenance and support of each child under its jurisdiction, including orders addressing the child’s education. (§ 361, subd. (a).) The court has the authority to limit the right of a parent to make educational decisions for a dependent child if it appears the parent is unwilling or unable to do so. (§ 361, subd. (a); see also Cal. Rules of Court, rules 5.650(a), 5,695(c).) When the court limits a parent’s right to make educational decisions, it must appoint a responsible adult, who does not have a conflict of interest, to make those decisions. (§ 361, subd. (a)(2).)

“For purposes of this section, ‘an individual who would have a conflict of interest’ means a person having any interests that might restrict or bias his or her ability to make educational or developmental services decisions, including, but not limited to, those conflicts of interest prohibited by Section 1126 of the Government Code, and the receipt of compensation or attorney’s fees for the provision of services pursuant to this section. A foster parent shall not be deemed to have a conflict of interest solely because he or she receives compensation for the provision of services pursuant to this section.” (§ 361, subd. (a)(2).)

Mother contends her due process rights were violated by keeping the education rights holder confidential, because she was unable to exercise her right to weigh in on whether the individual has a conflict of interest as set forth in section 361, subdivision (a)(2).

While the statute is silent on whether a parent is entitled to be heard on this issue and to what extent, it is clear that the duty for making the selection lies with the juvenile court. If no appropriate individual in the order of priority listed in the statute can be found, then the court itself is tasked with acting as the educational rights holder (§ 361, subd. (a)(3)).

All educational decisions must be based on the best interests of the child. (In re Samuel G. (2009) 174 Cal.App.4th 502, 510.) Here, the agency requested that the name of the proposed holder of educational rights be kept confidential in order to protect that person from harassment by father, in particular, to ensure that the person would be willing and able to exercise their responsibilities as educational rights holder. Father consistently harassed persons attempting to provide care or services to his children. He harassed two foster families, requiring the children be moved. And despite an order and stringent visitation rules in place to keep the current foster family confidential, father seemed to impart information about the foster family dogs, which implied he had identified and stalked the home. Family members were unwilling to take placement of the children due to father’s behavior.

While father’s behavior was the primary concern, had mother been provided the name of the educational rights holder, her allegiance to father would be tantamount to providing him with the information as well. Mother consistently defended father, minimized his behavior and placed his needs above those of the children when she refused to attend visits without him.

Under section 245.5, the juvenile court has broad discretion to fashion orders it deems necessary for the child’s best interests, including the child’s education. (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1103.) If a court’s order under section 245.5 limits parental control over his or her child, section 361, subdivision (a) requires the limitation not to exceed that necessary to protect the child.

Here, because mother refused to cooperate with the school on an assessment for R.C., the juvenile court found it necessary to impose limitations on mother’s control over educational decisions in order to protect R.C. Father’s behavior and mother’s inability to separate herself from her allegiance to father required that the educational rights holder be kept confidential. The juvenile court very appropriately found a middle ground in allowing the parents’ attorney to know the identity of the individual.

We find no violation of mother’s due process rights.

DISCUSSION

The orders are affirmed.

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FRANSON, J.

WE CONCUR:

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DETJEN, Acting P.J.

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SMITH, J.