Filed 5/1/14 In re D.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re D.H., a Person Coming Under the Juvenile Court Law.

FRESNO COUNTY DE PARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v. KIMBERLY G., Defendant and Appellant. F067787 (Super. Ct. No . 0093668-2)



### OPINION

THE COURT *
APPEAL from an order of the Superior Court of Fres no County. Mary Dolas,
Commissioner. Lauren K. Johnson, underappointment by the Court of Appeal, for Defendant and Appellant.

* Before Levy, Acting P.J., Kane, J. and Franson, J.2. Kevin Briggs, County Counsel, William G. Smith, Deputy C ounty Counsel, for Plaintiff and Respondent.
-ooOoo-

Kimberly G. (mother) appeals from an or der made at the August 5, 2013, Welfare
and Institutions Code section 388 1 hearing. Mother contends that, in its order, the juvenile court erroneously delegated authority to the Fresno County Department of Social Services (the Department) over her visits with her daughter D.H. We affirm.
FACTUAL AND PROC EDURAL SUMMARY Section 300 Dependency Petition Eleven-year-old D.H. came to the attention of Santa Clara social services in April of 2012, when mother was a rrested in Santa Clara County for being under the influence of methamphetamine while driv ing with D.H. in the car. A petition pursuant to section 300, subdivisions (b) and (g) was filed on April 10, 2012. When mother was arrested,
there was no alternate caretaker available for D.H. Mother had untr eated mental health issues and told the arresting officer that sh e was Jesus and that sh e was running from the devil who was trying to kill D.H. Mother had received voluntary family maintenance services from 2002 to 2009, du e to substantiated general neglect. She had a history of
substance abuse for which she received treatme nt after serving a prison term, but the problem was ongoing. Mother’s parental right s to two other children were terminated in
2001. The whereabouts of D.H.’s father (father) was unknown. At the time of mother’s arrest, D.H. was “very thin, gaunt and tir ed.” She said she had not attended school in a very long time. D.H. was worried abou t mother because she seemed very sad. D.H. appeared to be developmentally dela yed, had a speech impediment which made her difficult to unders tand, and she did not know how to read.

1 All further statutory references ar e to the Welfare and Institutions Code.3. D.H. had an “Individualized Education Plan” due to her delays and autistic-like features
and behaviors. The section 300 petition wa s amended on April 18, 2012 , to include information that mother had another child being raised by that child’s father ; that father had a criminal and substance abuse history; that fa ther knew D.H. was not safe in her mother’s care but failed to take protective measures on her behalf; and that father had not seen D.H. for over a year. Jurisdiction Report The report prepared in antic ipation of the jurisdiction hear ing to be held in May of 2012, stated that D.H. was in a confidential foster home, she was receiving nutritional supplements, and she was working on her nu mbers and letters and was able to begin school. D.H. had had a possibl e seizure at school. D.H.’s parents divorced in 2005. Prior child welfare history for mother included a 1990 accident in which mother was the passenger in a car driven by a boyfri end who was driving dr unk. Mother had been holding her two-year-old daughter Crys tal on her lap at the time and the child died from injuries sustained in the accident. In 1992 mother was placed in a psychiatric 5150 hold. Between 1992 and 1998, there were numerous reports involving mother’s daughters Alexandra and Vanessa, most on them unsubstantiated or unfounded. In 1999, a petition was sustained regarding Alexandra, due to mother’s drug us e and threat to kill
herself. Alexandra was later a dopted by a family member. Between 2008 and 2010, four allegations of physical a buse of D.H. by mother and allegations of sexual abuse were evalua ted and found to be inconclusive or unsubstantiated. Mother received family ma intenance services in 2009 for being under the influence and for problems providing D. H. with mental health and educational
services. Mother’s criminal history included charges of driving under the influence, possession of drugs, theft, viol ating probation, receiving stol en property and inflicting injury on a child.4. At the time of mother’s most recent arre st, D.H. was not adequately dressed for
the weather. When officers a pproached, mother tossed a bra ss knife with a Nazi swastika on it in the back seat of the car and attempted to run onto the highwa y. She was arrested for driving under the influence, resisting a rrest, and child endangerment. Mother was placed in a psychiatric 5250 hold and diagnosed with a number of mental health issues, as well as amphetamine and alcohol dependency an d drug abuse. According to mother, she had been on anxiety and sleep medicati on for nine years until the doctor suddenly stopped prescribing them the month prior. Mother began receiving SSI after Crystal
died. According to Alexandra, who was now an a dult, she had not been able to see D.H. since 2010, when she looked “homeless” due to her clothing and lack of hygiene.
Alexandra described an incident in which D.H. wanted to beat up her baby doll and repeatedly used expletives . Once placed in protective custody, D.H. displayed knowledge of topics beyond her years. Sh e was preoccupied with the movie Nightmare on Elm Street and the character Freddy Kruege r. D.H. drew pictures of nude women she
saw in movies her mother let her watch. She described the aunt who adopted Alexandra
as evil. D.H.’s therapist described D.H. as “alm ost feral, infantile and fragile ....” She was under-socialized and deprived. D.H. atte nded six schools in four years and never for more than six months in an academic year. She demonstrated auti stic-like behaviors, though her mother was resistan t to the diagnosis. D.H. was habitually truant and tardy
and had not attended school since December of 2010. According to mother, she di d not currently use drugs but did drink alcohol. Father
described mother as “absolut ely insane,” and claimed that she and her current husband (who had swastikas tattooed all over his body) threatened to kill him. Father was afraid to take custody of D.H. because he was afraid she would harm his other child. Jurisdiction and Transfer Hearings5. On May 14, 2012, the juvenile court sust ained the petition pursua nt to section 300, subdivisions (b) and (g) and transferred th e case to Fresno County , where mother was living. The juvenile court appointed a Court Appointed Special Advocate (CASA) for D.H., and disposition was set for September of 2012. September 13, 2012, CASA Report The CASA report dated September 13, 2012, stated that D.H. was in foster care. The CASA noted that D.H. had a large co llection of paper dolls she had made and named; she was a “picky eater” and preferred th e junk food her mother gave her; she used the bathroom every 20 to 30 minutes, indi cating a possible urinary problem; and she tested at the first grade level of school. The CASA described mother as mentally ill and that her visits with D.H. were inappropriate and combative. On one occasion, D.H. be came extremely anxious and panicked when she saw her mother and D.H.’s heart could be seen beating in her chest. Although D.H. said she loved and wanted to be with mother, the contact resulted in heightened anxiety, pa nic and regression. Disposition Report and Hearing The report prepared in an ticipation of disposition, recommended that mother be denied reunification services pursuant to se ction 361.5, subdivis ion (b)(10), (11) and (13). 2 The social worker opined that, while D.H. and mother had a good relationship, the relationship was not healthy. Mother ex posed D.H. to a “toxic environment” and “inappropriate behavior,” and that while it was the only home D.H. knew and felt comfortable in, it posed an “extreme safety concern.”

2 Section 361.5, subdivision (b) provides that reunification services need not be provided the parent if: (10) the parent failed to reunify with a sibling of the child; (11) the parental rights of the parent to a sibling of the child have been permanently severed; and (13) the parent has a history of chronic orabusive drug or alcohol use.6. On one supervised visit, the social worker had to re direct mother from talking
about traumatic events in her life. The therapist who supervised five visits between mother and D.H. reported that mother inte racted in a positive and loving manner with
D.H. and learned new skills a nd set boundaries when they were modeled for her. At the disposition hearing, D.H. was re moved from the custody of mother and
father. Reunification services were ordere d for father, but deni ed for mother. The juvenile court subsequently terminated serv ices to father after he waived them. March 15, 2013 , CASA Report The CASA report of March 15, 2013, stat ed that, while D.H. was in temporary foster care because her regular care provider was out of the country, she kicked walls, plunged pencils into paper a nd furniture, shouted profanities, and behaved vi olently with small children. D.H. had not yet received a formal diagnosis and lacked appropriate special needs services and support. She was unable to maintain reasonable personal relationships and posed a threat to small child ren and animals. At one point, she dropped a dog on the floor and broke its leg, but disp layed no feelings. After nine months with her care provider, she was beginning to show flashes of empathy and compassion to animals and people. She was beginni ng to learn hygiene practices. During a psychological evaluation, D.H. demonstrated a flat effect and was irritable and noncompliant. She stabbed a penc il through the test protocol and into the wall “while laughing maniacally” and was unresp onsive to directions to stop. She was reported to be aggressive with her sibling du ring a visit with father and father excused
himself from further visits with her. The CASA recommended mother’s visitation be tapered back to bi-weekly and then monthly. Review Reports and Hearings A report prepared in anticip ation of the review hearing described mother as being under the influence or experiencing withdrawal symptoms during visits, as she was hyper talkative, easily distracted and agitated, and st ated she was “sick” and needed medication.7. The social worker recommended scheduling D.H .’s therapy for the day after her visits
with mother to assess how th e visits were affecting her, but the visits occurred on Fridays and the foster mother and CASA requested that D.H. be allowed the weekend to recuperate before school on Mondays. The so cial worker suggested the visits continue but decrease, due to mother’s “suspicious” behaviors. An addendum report prepared in anticipa tion of the review hearing stated that, during a psychological examination, D.H. wa s found to have several social behaviors contrary to a diagnosis of autism. Instead, she was diag nosed with “R/O Emotional Disorder NOS, R/O Attachment Disorder. ...Cognitive Functioning in the Significantly Delayed Range with Adaptive Behaviors in th e Borderline to Low av erage range .... R/O
Mild Mental Retardation. ...Sensory Integration Issues.” The doctor recommended a more complete psychological evaluation to assess for emotional issues, to consider a referral for an occupational therapist, to reassess in two years, and other supportive psychological and social supportive services. D.H.’s therapist recommended reducing mother’s visits if her long-term permanency goal did not include reunification. The therapist thought weekly visits had a negative impact on D.H.’s emotional health a nd may have triggered some of her negative behaviors towards others, as evidenced by re ports from teachers and care providers. The Department continued to assess the mo st appropriate plan for D.H., which at this point was a planned permanent living arrangement. The juvenile court ordered a full psyc hological evaluation to assess D.H. for possible reactive detachment disorder or pos ttraumatic stress disord er and any resultant
recommended treatment. It also ordered an occupational therapy exam to address possible sensory integration issues, as well as a psychiatric medication evaluation to address possible anxiety. Mother opposed gi ving D.H. psychotropic medication, but the juvenile court ordered them. Mother’s vi sits were reduced to twice a month.
Section 388 Petition8. Shortly after mother’s vis its were reduced, D.H.’s a ttorney filed a section 388 petition and requested that the juvenile co urt follow D.H.’s therapist’s recommendation to suspend visits between D. H. and mother, until mother c ould be further assessed. According to the therapis t, mother was late eight times to visits and failed to attend four visits since August of 2012. In April of 2013, mother re ported the foster parent was raping D.H. On another occasion, mother stated that she believed D.H. was being harmed, but she did not want to say that out loud because then it wo uld be true. Mother
did not want D.H. in her curre nt placement, but wanted her back in her own care. Mother said she was going to make it happen and, if anyone tried to stop her, she would call the National Guard and the police. The therapist contacted the social worker, who cancelled the upcoming visit out of concern and r ecommended the visits be suspended or
discontinued until social servi ces could further assess the safety of the visits. According to the supervised visitation th erapist, there did not appear to be an emotional benefit to continuing visits betwee n D.H. and mother, du e to mother’s missed visits and odd behavior. The therapist opined that D.H.’s symptoms would likely
increase if she continued to be exposed to mother’s mental health issues. The therapist did not think there was any mental health bene fit to D.H. to conti nue visitation at this time and she did not anticipate any significant emotional detriment to discontinue them.
D.H. had been referred for a ne uropsychological evaluation.
Interim Order On May 30, 2013, the juvenile court issu ed an interim order suspending mother’s
visitation. CASA Addendum Report The report prepared by the CASA stated that the fo ster parent was frustrated and angry at the continued lack of targeted a nd adequate services for D.H.’s significant special needs. Both the CASA and foster parent agreed that D.H. needed to be tested for Autism and Asperger’s Syndrome, but that othe rs focused on “trauma-related behaviors.”9. According to D.H.’s care provi der, caring for her was all cons uming. No one else could manage her constant and extrem e behaviors. The care provider would not be able to keep D.H. much longer unle ss the Department thoroughly addr essed her special needs.
While D.H. continued to mention that she missed her mother, she did so less frequently. Her behaviors had improved and sh e was not as anxious as she had been. D.H. did worry about mother an d wanted to help her stop drinking and using drugs. The CASA opined that D.H. needed to be prot ected from further psychological and emotional harm caused by moth er’s visits. On July 8, 2013, the juvenile court or dered another temporary order suspending
mother’s visits. Section 388 Reports and Hearing An addendum report prepared in anticip ation of the section 388 hearing stated that, according to the therapist, while D.H. loved her mother and wanted to visits her, she had a tendency to worry about her and she be came “parentified” in some aspects, which was unhealthy. The therapist opined that vi sitation could be reesta blished if mother got to a place where she was emoti onally present and stable. Both the CASA and care provider supporte d visitation with mother if both D.H. and mother had appropriate services to deal with their issues. D.H. was diagnosed with posttraumatic stre ss disorder with dissociative features, attention deficit hyperactive disorder, modera te language/speech disorder, and insomnia. The psychologist opined that D.H. could benefit from cont act with mother, especially since adoption was not being considered. Th e psychologist recommended “parent/child therapy be the appropriate in tervention for D.H. to have more quality time with her
mother and have a licensed clinician to monitor and intervene effectively.” Mother was not present at the August 5, 2013, contested secti on 388 hearing, but mother’s counsel obj ected to the proposed change order.10. The juvenile court questioned counsel for the Department as to whether the
determination of if and when to resume visits was going to be up to the therapist. Counsel stated that the therap ist would be “one voice in that conversation,” but that the Department wanted to ensure that D.H. wa s doing well and was stable before resuming
visits. Counsel also stated that, while the therapist would be meeting with mother to determine if she believed it was appropriate to go forward with visits, the Department
would continue to do its own assessment with re gard to mother as well. The Department
wanted to ensure that mother have her “mental health and her behavior more under
control.” The juvenile court then granted the sec tion 388 petition and orde red visits between mother and D.H. suspended, finding it was in D. H.’s best interest to do so. The juvenile court authorized the Department “discretion for third-party supervised visits, including therapeutic supervised visits. [¶] Department to provide notice and any further discovery prior to proceedings and that all parties ar e aware that the visits are resuming and the
nature of those visits and wh o’s supervising those visits.” The juvenile court then reiterated, “Ten-court-day noti ce and updated discovery, agai n, as to visits resuming, whose visit, who’s supervising, and the natu re of those visits, including notice to the [CASA] ....” This appeal followed.
DISCUSSION Mother contends that the juvenile court abused its di scretion by improperly delegating authority to the Department to de termine whether visitati on should occur. We disagree. In a dependency case, the juvenile cour t has the sole power to determine whether visitation will occur. ( In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) Apart from the decision to allow for visitation itself, the juvenile court may delegate all other aspects of managing the details of the visits to social services. ( In re C.C. (2009)11. 172 Cal.App.4th 1481, 1489; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373-1374, 1376-1377.) In making visitation orders, a j uvenile court can properly delegate “the ministerial tasks of overseeing the right as de fined by the court.... Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function.” ( In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) “Only when a visitati on order delegates ... the absolute discretion to determine whether any visitation occurs do es the order violate the statutory scheme and separation of powers doctrine.” ( In re Moriah T., supra, at p. 1374.) We review a juvenile court’s visitati on ruling for an abuse of discretion. ( Los Angeles County Dept. of Children & Fa mily Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.) In arguing that the juvenile court’s dele gation of authority to the Department was improper, mother relies on In re Donnovan J. (1997) 58 Cal.App.4th 1474 ( Donnovan
J. ). In Donnovan J. , at page 1477, the juvenile cour t ordered that “[f]ather has ‘no visitation rights without permission of minor s’ therapists.’” The appellate court concluded that the order was an improper delegation of judicial power. The court reasoned: “[the order] neither requires that the therapists manage visitation ordered by the court, nor sets criteria (such as satisfacto ry progress) to inform the therapists when visitation is appropriate. Instead it conditions visitation on the child ren’s therapists’ sole discretion. Under this order, the therapists , not the court, have unlimited discretion to decide whether visitation is appropriate. That is an improper delegation of judicial power. Although a court may base its determin ation of the appropriateness of visitation on input from therapists, it is the court’s du ty to make the actual determination.” ( Id. at pp. 1477-1478.)
Donnovan J. is distinguishable. Foremost, unlike Donnovan J. , the juvenile court here did not give the Department unlimited discretion to decide whether visitation was appropriate. ( Donnovan J., supra, 58 Cal.App.4th at p. 1477.) Instead, the juvenile court12. itself suspended further visitation, finding it was in D.H.’s best interests to do so. It then gave the Department discretion to permit resu mption of third-party supervised visitation if and when it was appropriate. By doing so, the juvenile court restricted visitation to when the Department, with th e help of the therapist and with notice to all parties, determined mother and D.H. had progressed to a point where supervised visitation was again beneficial.
We also note another distinction between Donnovan J. and the case here. In
Donnovan J. the juvenile court’s delegation was to a private therapist rather than to a social services agen cy. As stated in Donnovan J. , “A court’s delegation to a private therapist, as in this case, raises additiona l concerns. Unlike a child protective services agency, a private therapist is not statutorily bound to ‘act as a cooperative arm of the juvenile court.’ [Citation.] A private therapis t is not accountable to the court in the same manner as a child protectiv e services agency.” ( Donnovan J. supra, 58 Cal.App.4th at p. 1476.) Here the delegation was to the Depa rtment, which was a cooperative arm of the juvenile court. Even assuming arguendo that the order de legated too much judicial discretion to the Department, we find mother is not prejudi ced thereby. Mother does not challenge the sufficiency of the evidence supporting the order suspendi ng visitation and, given the substantial evidence before it, the juvenile court could have simply suspended mother’s visits. “The fact that the juvenile court rejected that course, and instead issued the restrictive order challenged now, amounts to a windfall for [mother], not a violation of [her] rights.” ( In re Chantal S. (1996) 13 Cal.4t h 196, 214.)
DISPOSITION The juvenile court’s order is affirmed.