REARDON, J. —
In these consolidated dependency actions, Stephanie M. (mother) contests the juvenile court's detention and dispositional orders temporarily denying her visitation with her young son — Matthew C. (born Oct. 2015). Specifically, she argues that the juvenile court abused its discretion in suspending visitation between mother and son because there was no evidence that monitored visitation would have been contrary to the minor's
On October 23, 2015, the San Francisco Human Services Agency (Agency) filed a dependency petition pursuant to subdivisions (b) and (j) of section 300, alleging that Matthew C. — the minor who is the subject of these proceedings — had suffered, or was at substantial risk of suffering, serious physical harm or illness due to his parents' substance abuse and domestic violence.
In its detention report filed the same day as the petition, the Agency stated that the police — responding to a domestic disturbance call on October 20, 2015, at approximately 2:00 a.m. — found mother and father drunk. According to mother, after a few hours of verbal attacks, father had slapped her three times across the face. She had punched him on the cheek, leaving a mark. All of this occurred within three feet of newborn Matthew and despite the fact that mother had an active restraining order against father.
At the initial detention hearing on October 26, 2015, the juvenile court temporarily detained Matthew in foster care and continued the matter to the next day for further hearing. On October 27, the court confirmed the previous detention orders, made visitation orders, and authorized the Agency to release Matthew to mother at a residential treatment program, with the understanding that she would not leave the program with the child.
In its combined jurisdictional and dispositional report dated November 12, 2015, the Agency recommended that Matthew be declared a juvenile court dependent and that he reside with mother in residential treatment under a family maintenance plan. The Agency also provided some additional background with respect to mother's drinking and mental health concerns. On the issue of mental health, mother reported that she was originally diagnosed with bipolar disorder when she was 15. Although she was prescribed medication, she did not take it as directed because she did not believe she needed it. Rather, she ascribed her out-of-control behaviors to teenage rebellion. After the petition in this matter was filed, mother entered the Jelani House residential treatment program on October 31, 2015, and discussed her mental health history with the staff psychiatrist there. According to mother, both she and the psychiatrist felt that a diagnosis of severe anxiety was more fitting, and thus mother was given a prescription to treat that condition.
With respect to her drinking, mother had gastric bypass surgery in 2008 and began drinking excessively in 2009 in the wake of her divorce. She had a history of homelessness since that time. Mother admitted that she was aware that she was not supposed to drink alcohol after a gastric bypass because the body absorbs it in an unhealthy manner. Nevertheless, mother continued to drink, stating that the only times she made conscious efforts to reduce or discontinue her consistent use were during her two most recent pregnancies. Mother admitted, however, that, while pregnant with Matthew, she had relapsed a "couple of times."
Mother also minimized the domestic violence occurring between the couple, despite the fact that, at the time of detention, there were four active restraining orders against father which named mother as the protected person. Further, although father had been convicted in March and June 2015 for restraining order violations, mother claimed not to remember the details of the incidents and downplayed their significance. Finally, father also had a history of domestic violence with other partners, with convictions in 2005 and 2012, as well as a conviction for willful cruelty to a child in 2008.
On the other hand, once Matthew was detained, mother took quick steps to enter a residential treatment program to address her substance abuse and separate herself from father. Further, neither mother nor Matthew tested positive for any substances at the time of the minor's birth, mother had received consistent prenatal care for Matthew, and mother cared for the infant in the first days of his life. In addition, mother expressed her desire to abide by the terms of the restraining order, and, if necessary, to prioritize her son above her relationship with father. Finally, according to the social worker, mother acknowledged the seriousness of domestic violence in any relationship, and an "in-depth conversation" was had with mother "regarding the potential disastrous outcome of another domestic violence incident in the presence of her young child." On this basis, the Agency recommended that Matthew be placed with mother under a family maintenance plan, on the condition that mother continued to reside in a residential treatment program.
At the combined jurisdictional and dispositional hearing on November 17, 2015, the juvenile court — after making certain alterations to the petition — determined the allegations in the amended petition to be true and found Matthew to be a child described by subdivisions (b) and (j) of section 300. Thereafter, the court declared Matthew to be a juvenile court dependent and placed him with mother under a family maintenance plan. This in-home placement was expressly contingent on mother remaining at, and in compliance with, her residential program. Further, mother was ordered to engage in a service plan that, in addition to requiring completion of a residential drug treatment program, included participation in a domestic violence support group, individual therapy addressing trauma and domestic violence, and
Unfortunately, less than a month later, on December 3, 2015, the Agency filed a supplemental petition seeking detention of Matthew after mother left residential treatment with the minor in late November and never returned. According to the detention report filed that same day, mother had remained sober for approximately two weeks — from October 31 to November 19 — in residential treatment at Jelani House, before transferring to another treatment facility, Women's Hope. Matthew was returned to mother's custody on November 17 under her family maintenance plan and both mother and son moved to Women's Hope on November 20, 2015. Shortly thereafter, mother was authorized by staff to take Matthew on a day pass for Thanksgiving (Nov. 26) and never returned with the minor. According to staff, other residents at mother's treatment facility reported that mother was in a hotel in San Francisco and was drinking and using drugs. Mother had also reportedly stated that she was "sick of her son" and was not feeding him.
Several days later, on November 29, 2015, six-week-old Matthew was found abandoned in a Starbucks at the Great Mall in Milpitas. He was left in a stroller, which also contained a half-full bottle of vodka, a few baby items, a journal, and a dependency drug court reminder with mother's name on it. Matthew's physical condition was "very poor." He was not properly dressed for the weather, his diaper was soiled, and his clothes were soaking wet. He was also extremely hungry, immediately drinking two bottles when they were offered. After he was transported for medical evaluation, hospital staff assessed that Matthew had a diaper rash, a lesion in a fold on his upper leg, scalding burns on both of his legs which were determined to be non-accidental, and an adult human bite mark on his lower left leg.
Apparently, mother and Matthew had reunited with father despite the active restraining orders precluding father from having contact with mother. At a different location on November 29, mother and father were stopped by the police, as they were intoxicated in public and had been arguing. Once it was determined that they were the parents of the abandoned baby, mother and father were interviewed separately. Each gave different stories regarding Matthew's whereabouts. Mother, for instance, claimed that, after she and father had argued that morning, she left the baby with him. She stated that father later told her that he gave the baby to his sister or possibly to his ex-wife. Mother then met up with father again about 1:00 p.m. and they started drinking until the police intervened. In contrast, although the police
Mother next appeared at Jelani House late on the evening of December 1, 2015. Because she was drunk and reported being badly beaten and bitten by father, staff allowed her to stay the night before she was taken to the hospital for detoxification. Reportedly, she brought a bottle of vodka with her to the hospital under her jacket. When the social worker spoke to her in the emergency ward on December 2, however, mother stated that she was going to go into a program and get her baby back.
At the detention hearing on December 4, 2015, mother was not present as she remained hospitalized. She had been in contact with her attorney, however, and agreed to submit to detention. The juvenile court detained Matthew. Thereafter, it refused to order visitation between mother and son, concluding that, at that point, it would be detrimental to the best interest of the child to have any contact with mother.
In its dispositional report on the supplemental petition, filed January 25, 2016, the Agency again related mother's history of drinking and mental health issues. The Agency also stressed that mother had been court ordered to complete a substance abuse program on at least two occasions as a condition of probation, but had failed to do so. In addition, most recently, she had been involved in Jelani House, Women's Hope, and the Avenues for treatment, but did not complete any of those programs. Indeed, although mother went to the Avenues, a mental health program, after Matthew was detained for the second time and could have stayed there for two weeks, she chose instead to leave in order to reunite with father upon his release from jail. Reportedly, mother told staff at the Avenues that she was going to return to father, despite the restraining orders, because she wanted to be a family with him. Moreover, while in the program, she showed "no openness nor willingness to engage in services." Mother had not been in touch with the social worker since she left the Avenues. The Agency opined that mother needed to be sober before she could begin to face her domestic violence and mental health issues.
In the meantime, when the minor came into shelter care after being rescued by the police, he was so hungry he drank three six-ounce bottles of formula in rapid succession. When his foster mother had to change the dressings on his burn and bite marks, he screamed in pain, leading the social worker to comment that the tiny infant had had a "tremendous amount of physical suffering to endure." Moreover, when Matthew came into foster care, he was irritable, fussy, and unhappy. However, since that time, he had gained weight, grown quickly, and become calm and happy.
About three weeks later, on February 19, 2016, mother filed a petition pursuant to section 388, arguing that her situation had improved such that she should now be allowed supervised visitation with Matthew. Specifically, mother reported that she had been at HealthRIGHT 360, a dual diagnosis residential program, since February 3, 2016, and was compliant with the program. Prior to entering treatment, she had been in a related detoxification program from January 29 to February 3, 2016.
As mentioned above, mother challenges on appeal the juvenile court's orders at both detention and disposition on the supplemental petition, which temporarily denied her visitation with Matthew. At each of the two hearings at issue, the juvenile court refused to order visitation based on its conclusion that such contact would be detrimental to the minor. Mother argues that there was absolutely no evidence that monitored visitation would be inconsistent with the infant's well-being and that the absence of visitation negatively impacted her ability to forge a loving and close bond with the minor.
There is 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 [92 Cal.Rptr.3d 168] (C.C.)) or whether courts may also deny visitation based on potential harm to the minor's emotional well-being (see, e.g., T.M., supra, 4 Cal.App.5th at pp. 1219-1220).
More recently, in T.M., supra, 4 Cal.App.5th 1214, the Third District rejected the approach espoused by C.C. (T.M., supra, 4 Cal.App.5th at p. 1219.) Instead, it reasoned that, "[i]n addition to requiring a court to deny visitation if the child's safety is at risk, the plain language of section 362.1, subdivision (a) only requires visitation as frequently as the well-being of the child allows. Accordingly, if visitation is not consistent with the well-being of the child, the juvenile court has the discretion to deny such contact. As courts have explained, `well-being' includes the minor's emotional and physical health." (Ibid.) In T.M., the child welfare agency recommended against visitation with a father who had subjected the minor to "`extreme physical abuse,'" causing the minor to be very afraid of him. (Id. at p. 1217.)
Turning to the specific facts relevant here, we note that, at the detention hearing on December 4, 2015, mother was not present as she remained hospitalized. Mother's attorney, however, requested visitation between mother and son. The Agency responded: "Your Honor, given the facts of this case, I am going to ask at this time that a finding be made that visitation be detrimental to this child." The court replied: "I would certainly enter that finding" (italics added). Although mother's attorney pressed the issue, arguing that there was no evidence that supervised visitation would create any issues, the court reiterated its finding, stating: "I think it would be detrimental to the best interest of the child to have any contact with mother at this particular point."
We have no difficulty upholding the juvenile court's order suspending visitation as of the detention hearing. At that point, mother was still hospitalized after having been badly beaten by father, and her condition was unknown. Moreover, it was unclear whether it was mother or father who had intentionally burned and bitten the minor, thereafter abandoning him at the Starbucks in "very poor" condition. If mother was responsible for these odious and life-threatening actions, she showed an utter disregard for the well-being of her six-week-old son and clearly represented a physical and emotional threat to him, at least until her current situation could be assessed. Moreover, even if father was responsible for all of the specific abuse, mother's conduct still showed a gross lack of concern for Matthew's safety and well-being. First, she made the sober decision to leave treatment with Matthew and reunite with father against court orders and despite the fact that she had previously been counseled "in-depth ... regarding the potential disastrous outcome of another domestic violence incident in the presence of
With respect to the court's dispositional visitation order, both jurisdiction and disposition on the supplemental petition proceeded on January 26, 2016. Although noticed, neither parent was present. At the hearing, there was some discussion that supervised visitation would now be appropriate since mother was being offered a reunification plan. However, when the court asked for the Agency's position on visitation, the social worker opined: "I don't think she should have visitation until we take a look at her because — well, from conversations I've had, I'm afraid she might be the person who bit the baby as well as burn[ed] the baby." The social worker further stated: "I think I need to talk to her and determine who did the biting of the baby, because apparently she's bitten the father too and left a big bite mark on him. I don't want the baby to be injured. No matter how much the supervising ... [,] [¶] ... [t]hey're not going to grab the kid out of her hands."
The juvenile court denied the request for visitation, reasoning that mother "needs to really be in a live-in residential treatment program." The court further elaborated: "She seems to think that domestic violence isn't the main issue, and it's one of the main issues, not that that — I mean, I think that she needs to understand the danger she puts herself in and the child in. And substance abuse is another extremely big issue, and obviously her mental health condition. So until there is some progress, however, we're going to define that, I am going to deny that request" (italics added). Although mother's attorney argued that, with appropriate supervision, the child could be ensured to be safe with mother, the juvenile court reiterated that mother needed "to show progress with herself first" and thus it would not "change the detriment findings for today" (italics added).
Finally, additional information regarding Matthew indicated that the minor was so hungry when he was rescued that he drank three six-ounce bottles of formula in rapid succession. He also screamed in pain when his foster mother had to change the dressings on his burns and bite marks, and thus, in the words of the social worker, had endured "a tremendous amount of physical suffering" as the result of his abuse and abandonment. Moreover, the infant was irritable, fussy, and unhappy when detained, but had since stabilized in foster care. Under the circumstances, it was undeniably reasonable for the court to require some progress from mother on her many issues before considering reintroducing her into the life of her obviously traumatized son. Thus, the evidence strongly supports the conclusion that the juvenile court's visitation order was crafted consistent with Matthew's physical and emotional well-being.
The juvenile court's detention and dispositional orders temporarily denying mother visitation with Matthew are affirmed. Mother's writ petition is denied on the merits. (See § 366.26, subd. (l)(1)(C), (4)(B).) The finality of this opinion shall be governed by rule 8.264(b). (See also rules 8.452(i), 8.470, 8.490(b)(2)(A).) The previously imposed stay issued by this court is hereby dissolved.
Ruvolo, P. J., and Streeter, J., concurred.