In re Halley M.

Filed 3/20/07 In re Halley M. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In case number A111370, we affirmed a juvenile court order denying additional visits and suspending telephone calls between appellant Joyce M. and her dependent daughter, Halley M.[1] Now, appellant appeals from a subsequent order she describes as slightly different from the previous order. She makes the same arguments she made in the earlier appeal and relies primarily on evidence predating the courts previous order, which we affirmed upon concluding the juvenile court acted within its discretion. We once again conclude there was no abuse of discretion and affirm the juvenile courts order.

Factual and Procedural History

We summarize the facts as presented in case number A111370, supplemented by the factual and procedural history after the date of the order appealed from in that case.

Halley is the 13-year-old biological daughter of appellant and Joseph A. When the events leading to these dependency proceedings took place, appellant and her ex-husband, Craig M., were raising Halley in Pomona. Craig is the biological father of Halleys half-sisters, Rachael and Christen.

On January 29, 2003, Halley and her sisters were taken into protective custody after police discovered a methamphetamine laboratory on the property of the house in which they lived with Craig and his mother. On May 7, 2003, the juvenile court in Los Angeles County sustained an amended petition filed under Welfare and Institutions Code section 300, subdivision (b), on Halleys behalf by the Los Angeles County Department of Children and Family Services. The court determined, among other things, that appellant had previously been convicted of possession of a controlled substance and had engaged in conduct that endangered the childrens physical and emotional health and placed them at risk of physical and emotional harm. The court also found that appellant created a detrimental home environment by engaging in certain conduct, including threatening suicide and engaging in an ongoing conflict with Halleys paternal grandmother,[2] which endangered the childrens physical and emotional health and placed them at risk of physical and emotional harm from which Craig failed to protect them. The court declared Halley a dependent child and placed her in the custody of her paternal aunt and uncle.

The juvenile court granted appellant the right to monitored visits with Halley to be as long as possible without interfering with another parents [sic] visits, and allowed for the possibility of expanded visitation privileges. The court also ordered appellant to complete a case plan that included parenting education and individual counseling.

In reports prepared for subsequent review hearings, the social worker informed the juvenile court that appellant often missed visits with Halley, sometimes for questionable reasons. Moreover, when she did participate in visits and telephone calls, appellant often acted and spoke in ways that left Halley emotionally distraught. In particular, she often spoke negatively about Halleys caregivers, made threatening and intimidating statements to Halley and her caregivers, inappropriately discussed or made requests in connection with the juvenile dependency case, and exhibited angry or tearful behavior. Halleys social worker reported that appellants visits and telephone calls appear to be a source of significant emotional trauma for Halley. Halleys caregivers reported that it often took days for Halley to calm down after her visits with appellant.

At various times, the juvenile court issued orders barring appellant from making emotionally charged statements, talking about the case, or harassing, threatening, or intimidating Halley or her caregivers during visits or telephone calls. Further, the court limited appellant to one visit and two telephone calls per month, while giving the social worker discretion to expand that schedule if appellant improved her conduct.

Meanwhile, Halley had adjusted well to living with her caregivers. Her social worker, therapist, and teacher all noted her significant social, mental, and academic progress under their guidance. The juvenile court appointed her paternal aunt and uncle as her legal guardians. The case was then transferred to the juvenile court in Contra Costa County, where Halley and her legal guardians reside.

On July 27, 2005, the Contra Costa County juvenile court held a contested hearing on appellants request for additional visits with Halley. Finding no evidence that additional visits were beneficial to Halley, the court denied appellants request and suspended telephone calls. However, the juvenile court continued to permit appellant one monitored visit with Halley per month, with at least half of the visits to be joint counseling sessions, and it allowed for the possibility of additional visits and telephone calls in the future should their relationship improve with therapy.

Appellant appealed from the July 27, 2005, order in case number A111370. In an unpublished opinion filed June 30, 2006, we affirmed the juvenile courts order, finding that it acted well within its discretion in denying appellants request for additional visits and in suspending telephone contact.

The juvenile court held the next review hearing on April 11, 2006, following several continuances. The record on appeal contains one status review report prepared by the Agency between the date of the July 2005 order this court affirmed on appeal and the date of the April 2006 review hearing.[3] In the review report, the social worker wrote that Halley was thriving in the home of her legal guardians, was in good health, was doing very well in school, and wanted to attend college. Her guardians wished to adopt her when she was ready. The report recommended continuing the legal guardianship.

With regard to visitation issues, the social worker reported that Halley enjoyed the one hour per month supervised visit with her mother. The visits were described as appropriate. Halleys social worker noted she had made several attempts to schedule visits in a therapeutic setting as ordered by the court on July 27, 2005. However, before the date of a scheduled therapeutic visit in October 2005, appellant called the social worker and canceled the visit, claiming a conflict with her job. It does not appear from the record that appellant attended any therapeutic visits during the review period. In any event, a mental health professional and Halleys therapist concurred that it was not beneficial to Halley or in her best interest to do conjoint therapy with appellant once a month. The social worker recommended that appellant continue to be permitted a supervised visit with Halley for a minimum of one hour one time per month.

At the hearing on April 11, 2006, appellants trial counsel requested that monitored visitation be at least once per month and that conjoint therapy occur in addition to her clients monthly monitored visitation. Appellants trial counsel specifically asked the juvenile court to grant appellant additional visits beyond the one hour per month recommended by the social worker. The Agencys attorney pointed out that Halley had requested that the chaos stop. Halley had also expressed concern that her mother and sister were showing up without supervision and that her sister was pressuring her at school.

At the conclusion of the hearing, the court agreed to permit appellant supervised visits with Halley for a minimum of one hour one time per month. The court also ordered therapeutic visits in addition to the supervised visits once a therapist would agree to provide such visits consistent with Halleys best interests. Appellant timely appealed the courts order.

Discussion

The sole issue raised on appeal is whether the juvenile court abused its discretion in denying appellants request for increased visitation with Halley. We first address the Agencys contention that this courts prior opinion is law of the case compelling affirmance of the juvenile courts order.   The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.   (People v. Stanley (1995) 10 Cal.4th 764, 786.) The principal reason for the doctrine is judicial economy. Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding. [Citation.] (Id. at pp. 786-787.)

Here, appellant does not challenge a principle or rule of law necessary to this courts previous decision. Instead, appellant claims the court abused its discretion in limiting her visitation with Halley despite new evidence purportedly showing that increased visits would be in Halleys best interest. We agree with appellant that the law of the case doctrine is inapplicable here. Nothing in our prior decision compelled the juvenile court to rule the way it did. The court was free to reconsider the propriety of increased visits based on all of the evidence before it, including events that had transpired since the date of its previous order.

Notwithstanding our conclusion that law of the case principles are inapplicable, we can hardly fault the Agency for contending that appellant is merely attempting to reargue the same issues that were before this court in the earlier appeal. The opening brief in this case is practically a carbon copy of the brief in case number A111370. The vast majority of the text is identical, although appellant has seen fit to add the procedural history of the case since the date of the order that was appealed in case number A111370. While we will certainly consider any new evidence in the record relevant to the issue of visitation, we will not revisit the facts predating the order we affirmed in case number A111370.

Appellant agrees that our review of the juvenile courts order is governed by the abuse of discretion standard. Under this standard, we will not disturb a juvenile courts decision   unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].  [Citations.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)  The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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. [Citation.] (Id. at pp. 318-319.)

When the juvenile court selects guardianship as the permanent plan, the court must make an order permitting visitation with the parents unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child. (Welf. & Inst. Code,  366.26, subd. (c)(4)(C).) Here, the juvenile court did not deny visitation but instead permitted visits subject to certain limitations. Appellant challenges these limitations as an abuse of discretion.

It is well settled, however, that trial courts are vested with broad discretion in matters concerning visitation. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) The juvenile court may even delegate to the social services agency the right to impose time, place, and manner restrictions on visitation. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376-1377.)  Such matters as time, place and manner of visitation do not affect the defined right of the parent to see his or her child . . . .  (Id. at p. 1374.) [A] parents liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being. [Citation.] . . . [T]he court must focus on the best interests of the children . . . . [Citation.] This includes the possibility of adverse psychological consequences of an unwanted visit between mother and child.  [Citation.] (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)

Here, the juvenile court acted well within its discretion by imposing limitations on appellants visits with Halley. We have previously considered the facts underlying the juvenile courts prior order limiting visitation. The only new facts supporting expanded visitation were the social workers statements that appellants recent visits were appropriate and that Halley enjoyed the one hour per month supervised visit with her mother. However, these facts hardly compel a conclusion that visits must be increased in frequency, particularly when one considers the long history of Halley being traumatized by her visits with appellant. Furthermore, in contrast to evidence favoring additional visits, Halley had expressed a concern that her mother and sister were showing up without supervision and that she was being improperly pressured by her sister, who lives with appellant. In addition, two mental health professionals concurred it was not beneficial to Halley or in her best interest to allow conjoint therapy with appellant once a month. Nevertheless, the juvenile court left open the possibility for conjoint therapy in addition to the one supervised visit per month, a visitation order even more generous than the one we affirmed in case number A111370. Under the circumstances, the juvenile court did not abuse its discretion by maintaining existing restrictions on monitored visits and affording appellant the opportunity for additional, therapeutic visits.

Disposition

The juvenile courts order is affirmed.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] At appellants request, we have taken judicial notice of the record, briefs, and opinion in case number A111370.

[2] Although Craig is not Halleys biological father, his name is on her birth certificate and he has raised her as his own. The social services agency (Agency) and the juvenile court referred to Craigs mother as all three girls paternal grandmother and his sister as their paternal aunt. We will do so as well.

[3] The Agency attached as an exhibit to its respondents brief a February 24, 2006, memorandum prepared by Halleys social worker. Rule 8.204(d) of the California Rules of Court permits a party to attach to a brief copies of exhibits or other materials in the appellate record. The problem is that the attachment is not part of the appellate record, and no party to this appeal requested judicial notice of the memorandum or sought to augment the record to include it. (See Cal. Rules of Court, rules 8.155, 8.252.) Thus, the memorandum is not properly before us. Even if we were to consider the memorandum, however, its contents would not assist appellant. Among other things, the social worker noted in the memorandum that Halley was concerned about how her mother would react to her feelings, that she does not want to live with her mother or siblings, and that she wants to stop the chaos. The social worker also reported that appellant continues to need supervision and continues to have difficulties maintaining boundaries. The Agency also expressed concerns about the intimidation, threats and coercion from the mother and the sibling.