Filed 12/29/20 In re Ma.P. CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re Ma.P., a Person Coming Under
the Juvenile Court Laws
__________________________________ A159798
ALAMEDA COUNTY SOCIAL
(Alameda County
SERVICES AGENCY,
Super. Ct. No. JD03067501)
Plaintiff and Respondent,
v.
C.H.,
Defendant and Appellant.
In this juvenile dependency proceeding, C.H. (Father) appeals an order
denying his request for telephone contact with his minor son, Ma.P. He
contends the order is not supported by sufficient evidence of a threat to the
child’s physical safety or emotional wellbeing. We will affirm.
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I. FACTS AND PROCEDURAL HISTORY
In consolidated appeal numbers A157057 and A157984, we affirmed
the juvenile court’s orders of February 13, February 28, March 14, March 28
and July 19, 2019, in which the court temporarily denied Father’s visitation
with five minor children—I.P., Ma.P., S.P. (also known as A.P.), Me.P., and
J.P. We concluded there was sufficient evidence that even therapeutic visits
would threaten the children’s emotional wellbeing. In this appeal, Father
challenges the juvenile court’s subsequent order of February 13, 2020, which
denied Father telephone contact with Ma.P.1
A. Factual Background of Prior Appeals
The Alameda County Social Services Agency (Agency) brought the
children—one to six years old at the time—into protective custody in January
2019. A January 2019 dependency petition pursuant to Welfare and
Institutions Code section 300, subdivision (b)2 alleged that Mother and
Father had a history of domestic violence, Father perpetrated domestic
violence against the children (including one incident that may have caused
physical injury), and Mother failed to protect the children. The court ordered
that the children be detained. In February 2019, Father obtained presumed
father status as to the children except for I.P.
In its addendum report of February 28, 2019, the Agency advised that
Father acknowledged his rage and need for help, claimed his anger was
1 Father has asked us to take judicial notice of the appellate record in
consolidated appeal numbers A157057 and A157984. We grant the request
and, in this opinion, summarize the facts that we included in our opinion in
those appeals. We also note that Father is identified in the caption of this
appeal as C.H. but was identified in the caption of the consolidated appeals
as C.F., apparently due to an inconsistency in abbreviating Father’s name.
2 Except where otherwise indicated, all statutory references are to the
Welfare and Institutions Code.
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related to childhood trauma, and admitted violating a protective order.
Roberto Macias-Sanchez, the individual therapist for Ma.P., noted several
reports of past abuse and reported that Ma.P. had classroom difficulties due
to being afraid of making mistakes and getting in trouble with Father.
“SPARKS” program director, Rose Messina, recommended that visitation
between the children and Father be postponed until Father had fully engaged
in appropriate intervention, given the risk that the children could experience
emotional dysregulation if reintroduced too soon to an adult who caused them
harm.
At the jurisdictional and dispositional hearing on February 28, 2019,
the court adjudged the children dependents of the court and found true the
allegations of the petition as amended. The court ordered that the Agency
provide family reunification services to Mother and Father. The court
further ordered that visitation with Father continue to be temporarily
suspended, deferring the visitation issue to the next interim review hearing.
The court continued the order temporarily suspending Father’s
visitation at the review hearings on March 14, March 28, May 15, June 7,
and July 19, 2019. For the May 15 hearing, it was reported that Father had
just started to engage with services and that therapist Macias-Sanchez and
others on the therapeutic team believed the children could suffer further
emotional harm if visits occurred before Father had engaged in services and
received treatment. For the July 2019 hearing, therapist Reynoso reported
that the family sessions had not delved deeply enough for the children’s
healing and sense of safety, and Macias-Sanchez warned that asking children
to override their psychological defenses to satisfy Father’s need to see them
would be detrimental to their long-term adjustment. At the July 2019
hearing, after the children’s counsel asked that visitation be deferred pending
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clarification from Macias-Sanchez and recounted that the children had
“suffered great damage at the hands of Father,” Father let out an audible
groan which, along with similar behavior at the hearing, led the court to
question his therapeutic progress. The court also noted evidence that the
mere mention of Father’s name during therapy triggered the girls such that
they looked down or withdrew, causing concern about even therapeutic visits.
We affirmed the court’s rulings.
B. Factual Background Since Father’s Prior Appeals
1. October 2019 Review Hearing
On October 1, 2019, the court continued family reunification services to
Father until the 12-month permanency hearing date and granted the Agency
discretion to arrange therapeutic visits between Father and the children with
input from the child’s therapist and notice to the child’s attorney.
2. Twelve-Month Permanency Report and Hearing
For the 12-month permanency hearing (§ 366.21, subd. (f)), the Agency
recommended that Ma.P. and his brothers remain out of home, that his
sisters have a two-week trial visit with Mother in anticipation of their return
to her with family maintenance services, and that Father’s reunification
services be terminated.
According to the Agency’s status review report, Father was living with
his grandmother, was employed, had engaged in most of his case plan
services, and had identified ways to help the children through their trauma
and provide them with love, protection and safety. His case plan objectives
included being able to identify the children’s emotional needs, completing a
parenting class, conducting self-research, identifying triggers and ways to
deal with frustration appropriately, and participating in a domestic violence
program and therapeutic counseling sessions.
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Father had attended domestic violence sessions and recognized his
anger stemmed from witnessing domestic violence while growing up. He
completed parenting education, discussed the importance of managing his
emotions and validating his children’s emotions, and had been working on
identifying what the children needed from him.
Father’s attendance at individual therapy sessions became less
consistent in late September 2019. On October 31, 2019, he paused therapy
for November due to stressors such as transportation issues and needing to
relocate. He participated in therapy sessions by phone in December 2019 and
was supposed to return to in-person sessions on January 11, 2020 but
overslept. He was doing well in therapy, but his therapist was worried that
he “cannot really focus, get[s] really nervous and makes decisions that come
back to hurt him.”
Father also received therapeutic support from Macias, who noted
Father’s significant progress and engagement in processing his trauma and
understanding the trauma caused to the children. Father had checked in
with Macias every week since mid-November 2019. With Macias’s help,
Father wrote the children approximately five letters.
Father’s letters were read to Ma.P. and I.P. by their therapist, Ms.
Ponthier. Ma.P. showed distress when speaking about Father and walked
around the room and was disengaged, but he said he wanted to see Father.
Ma.P. also expressed to the child welfare worker that he wanted to hear from
Father and talk with him by phone. However, Ma.P. brought up memories of
Father “fight[ing]” Mother, Ma.P. was having challenges at school, and he
was receiving weekly individual therapy to process unresolved trauma
related to his parents’ domestic violence and stressors related to being
separated from his parents and other siblings.
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As to Ma.P.’s siblings, Ponthier reported that I.P. became anxious and
dysregulated when he spoke about Father, paced up and down trying to make
sense of Father’s letters, and needed more time to process his feelings in
order to be ready to speak to Father. In December 2019, I.P. informed the
child welfare worker that he would like to continue hearing from Father and
wanted to return to Mother’s care.
The therapist for Me.P. and A.P. stated they became dysregulated
when talking about Father and A.P. still brought up events that occurred in
the home. The girls’ caregiver reported that when the therapist tried to
introduce a letter from Father, A.P. “shutdown and left the room” and stated
“I don’t like him, he’s mean,” and Me.P. ran into the caregiver’s arms. In
December 2019, the child welfare worker read Father’s letter to Me.P. and
A.P., and the girls said they would like to hear more from him. The
Children’s Hospital clinicians—Ponthier, Reynoso, and Macias—
recommended the children start by listening to voice recordings of Father and
transition to family therapy.
At a Child Family Team meeting on January 17, 2020, Father was able
to give an example of handling frustration with a co-worker by taking a deep
breath, walking away, and telling himself it was not worth arguing or hitting
the coworker. He agreed to start with phone calls with the children and move
to supervised visits, and he wanted to engage in more domestic violence
classes and attend a fatherhood group.
Nonetheless, the Agency remained concerned about Father’s ability to
provide safety to the children and to address conflict without intimidating
them with his body language. The Agency was also concerned about his
relationship with the children, his small support network, the children’s
reactions to his letters, and his reduced consistency in therapy.
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At the 12-month permanency hearing on February 13, 2020, Father’s
counsel objected to the Agency’s recommendation to terminate Father’s
reunification services. The court set a contested hearing and gave the Agency
discretion to initiate a trial visit between Mother and Ma.P.’s sisters pending
the contested hearing.
During the hearing, the children’s attorney noted that she had raised
the topic of Father’s visitation with each of the children. Counsel noted that
Me.P. and A.P. “reacted very strongly and very adamantly” that they did not
want to see Father, and the girls had said “that he was a bad daddy and hurt
them.” Counsel did not advocate for any visitation or contact between them
and Father, and there remained a criminal protective order prohibiting
Father’s contact with the youngest sibling. Although Ma.P. said he would not
mind talking to Father on the telephone to see if Father was okay, counsel
opposed all contact between Father and the children until the contested
hearing because Ma.P.’s reaction to Father’s letter was “not necessarily super
positive” and Father’s participation in therapy had been less consistent
recently.
Father’s counsel asked the court to give the Agency discretion to allow
telephone contact between Father and Ma.P. The court denied Father’s
request, explaining its decision as follows: “We’re not going to bifurcate the
children out, where one has contact by telephone and the remainder is—quite
frankly, the girls want no contact. [¶] [One of the] children, when even
learning that a letter was sent by [Father] to a visitation type of meeting, was
withdrawn and frightened, and then the other articulated that he’s mean.
And I don’t want the children traumatized. [¶] There is already a situation
we see coming down the pike because the Court is affording discretion to the
agency to start the trial visit of [A.P.] and [Me.P.] with [Mother] forthwith.
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And so the boys are going to be a little bit on the outside, and the children
will have feelings about that, and I don’t want to add onto anyone’s plate the
dynamic of somebody’s talking to [Father] over the phone. [¶] I don’t think
that’s healthy for the kids . . . based on the information I have.” This appeal
followed.
II. DISCUSSION
Father incorporates his argument from his earlier appeals. (Cal. Rules
of Court, rule 8.200(a)(5).) He contends section 362.1, subdivision (a)(1)
required the court to allow him to visit his children, and the evidence at the
time of the February 13, 2020 hearing did not show that telephone visits
between him and Ma.P. were a threat to Ma.P.’s wellbeing.
Under section 362.1, subdivision (a), an order placing a child in foster
care and ordering reunification services “shall provide as follows: [¶] (1)
[¶] (A) Subject to subparagraph (B), for visitation between the parent or
guardian and the child. Visitation shall be as frequent as possible, consistent
with the well-being of the child. [¶] (B) No visitation order shall jeopardize
the safety of the child.” Thus, visitation is required unless it would
jeopardize the child’s “safety,” while the frequency of the visitation turns on
the child’s “well-being.” (§ 362.1, subd. (a).)
Given the statutory language, courts are split on whether section 361.2
requires visitation unless there is evidence of a threat to the minor’s physical
safety (In re C.C. (2009) 172 Cal.App.4th 1481, 1491–1492) or whether
visitation may also be denied based on a threat to the minor’s emotional well-
being (In re Matthew C. (2017) 9 Cal.App.5th 1090, 1101–1103; In re T.M.
(2016) 4 Cal.App.5th 1214, 1219–1220; In re Mark L. (2001) 94 Cal.App.4th
573, 581, disapproved on another ground in Conservatorship v. O.B. (2020) 9
Cal.5th 989, 1010 fn. 7.) We agree with the majority of courts holding that
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visitation may be denied (at least temporarily, as in this case) if the visits (in-
person or telephonic) threaten the child’s emotional well-being. Because the
juvenile court is explicitly authorized by statute to reduce the frequency of
visits due to concern for the child’s well-being, it is reasonable to conclude
that the frequency of visits might be reduced temporarily to zero rather than
expose the child to further emotional trauma, particularly since traumatic
visits would do nothing to further reunification.
Here, substantial evidence supports a finding that the children,
including Ma.P., would be at risk of detriment to their emotional well-being if
Father was granted telephone contact with Ma.P. As set forth in greater
detail in our opinion in appeal numbers A157057 and A157984, Father had a
history of domestic violence and physical aggression towards Mother and the
children, including incidents that caused injury, and Father acknowledged
his rage and admittedly mistreated the children and violated a protective
order. As of the time of the July 2019 hearing, there was substantial
evidence that the children would be harmed emotionally if exposed to contact
with Father, even in the context of therapeutic visits.
Although some progress had been made by the time of the February
2020 hearing, Ma.P’s therapist reported that Ma.P. showed distress when
speaking about Father, he had brought up memories of Father fighting with
Mother, he was having challenges at school, and he was receiving weekly
individual therapy to process unresolved trauma. Although Ma.P. said he
wanted to talk with Father by phone, his therapist reported that he became
dysregulated and started wandering around the room. Furthermore, Father
had been inconsistent in participating in therapeutic services and, as recently
as the previous month, his therapist reported he was worried that Father
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“cannot really focus, get[s] really nervous and makes decisions that come
back to hurt him.”
Moreover, while Ma.P. stated he would not mind talking to Father, his
siblings were adamant that they did not want visitation with Father. The
children were also about to undergo a potentially traumatic transition, with
two of Ma.P.’s siblings returning to Mother’s home while Ma.P. and his
brothers remained in foster care. Ma.P. yearned to return home to his
Mother’s care too, and his counsel reported that he wanted the court to know
“he would give you a million dollars if he could live with his mom.” Mother
recognized that the transition would be difficult and was concerned how it
would “feel for her sons.”
In light of the children’s history of trauma, Ma.P.’s continuing
dysregulation when talking about Father, the impending separation of Ma.P.
from his siblings and inability to return home to Mother, and his siblings’
adverse reaction to the idea of Father’s visits, substantial evidence supported
the conclusion that, as of the February 13, 2020 hearing, it would be
detrimental to the emotional well-being of Ma.P., if not of all the children, if
Father was allowed contact with Ma.P. by telephone. Given this substantial
evidence, Father fails to demonstrate an abuse of discretion.
III. DISPOSITION
The order is affirmed.
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NEEDHAM, Acting P.J.
We concur.
BURNS, J.
REARDON, J. *
In re Ma P. / A159798
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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