Filed 7/28/14 In re N.C. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


In re N.C. et al., Persons Coming Under the
Juvenile Court Law.


DEL NORTE COUNTY
DEPOARTMENT OF HEALTH AND
HUMAN SERVICES,
                                                                     A140372
         Plaintiff and Respondent,
v.                                                                   (Del Norte County
                                                                     Super. Ct. No. JVSQ13-6017, JVSQ13-
J.B.,                                                                6018)
         Defendant and Appellant.



         J.B. (Mother), mother of N.C. and M.C. (the Twins), born in January 2007,
appeals from orders made at a November 2013 interim review hearing in the Twins’
dependency cases. We are familiar with the cases, because we recently decided Mother’s
appeals from orders at the April 2013 disposition (In re N.C. (May 5, 2014, A138503)
[nonpub. opn.]), and orders at the October 2013 six-month review (In re N.C. (June 24,
2014, A140027) [nonpub. opn.]).
         A central issue in the November review hearing was Mother’s visitation with the
Twins. Mother argues that the court improperly delegated control over visitation to the
county Department of Health and Human Services (Department), and erroneously failed
to specify the minimum number of hours of visitation she would receive. She also



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contends that, if the court made an implied finding that she was receiving reasonable
services, the finding was not supported by substantial evidence. We find no error and
affirm the orders at the November interim review.
                                   I. BACKGROUND
       As noted in our prior opinions, much of the planning in the cases was deferred
pending receipt of a custody and sexual abuse evaluation conducted by Dr. Jacqueline
Singer, as ordered in the parents’ divorce case. The court received Singer’s report after
the six-month review hearing, and admitted it into evidence at the November interim
review.
       Dr. Singer could not definitively determine whether D.C. (Father) sexually abused
the Twins as Mother has alleged. She found it “impossible to say that because the girls
appear happy at their father’s home, and are doing well in school that [Father] is not
molesting them,” and it was “possible that molest continues, though [the] girls have made
no reports and are not exhibiting any troubling behavior.” However, Dr. Singer thought
that it was “equally, and more likely, that molest is not occurring, the children are happy
and that accusations have stopped because the only contact mother has with them is
closely monitored. It is noteworthy that since her visits have been at CPS, no additional
allegations have been made.”
       Singer recommended that Father have sole legal and physical custody of the
Twins. Singer had “concerns about possible abduction by [Mother] and as such she
should not have legal custody.” Her psychological testing of Mother revealed
“considerable character pathology.” Among other things, when Mother “attempts to
think through problems, she can at times distort her perceptions and her understanding of
others and their motives. [Mother] shows challenges in thinking clearly and having
accurate perceptions. At times, her thought process can be disturbed and her thinking can
be illogical. She can become disorganized around what she experiences as internal
versus external, and she can attribute inaccurate motives to others.”
       Mother obtained court funding for a psychological assessment of her by Dr. Edwin
Jenesky, which the court also took into evidence at the interim review. The court


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explained at the hearing that it authorized Jenesky’s assessment because Singer had
“expresse[d] grave reservations about [Mother’s] psychological ability to [comply with
the case plan],” and she was entitled to another report “to level the playing field.”
Jenesky reported that Mother’s personality could “lead to some interpersonal difficulties
[that] . . . could make it difficult to work with her and lead her into misunderstandings as
well as over reactions.” She arrived 20 minutes late for her evaluation, and her
weaknesses were “punctuality,” and “misinterpreting and embellishing things in a self-
serving direction.” She seemed “to project blame onto others without mentioning her
role in potential self-defeating behavior and contributing to difficulties,” and “may have
limited insight into how her behavior may have a negative effect on others.” However,
she was a person of “high average” intelligence who did not suffer from “severe mental
illness or personality disorder,” and she “appear[ed] to be capable of meeting
requirements of a reunification plan and properly parenting her children.”
                                    II. DISCUSSION
A. Visitation
       (1) Record
       Dr. Singer’s recommendations included detailed requirements and timeframes for
Mother’s visitation with the Twins to progress “from the current CPS supervised visits to
visits at the Family Resource Center, to unsupervised at the FRC, to unsupervised in the
community to overnight.” Those recommendations included a requirement that Mother
arrive 15 minutes before visits began. The report indicated that Mother arrived one and a
half hours late to her first appointment with Singer, and was frequently late for visits with
the Twins. The paternal grandmother, who drove the Twins to the visits, told Singer that
Mother had missed some visits and was often late. She said, “The children are upset, and
if [Mother] is more than 20 minutes late, they leave.” Singer believed that Mother’s
compliance with the early arrival requirement “will demonstrate that she is able to get the
children somewhere on time, when she is participating in activities with the children in
the community and visits will be cancelled if she is not there. This way the children will
not be inconvenienced by her tardiness.”


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       At the interim review hearing, Mother advised that she had five hours of visitation
with the Twins per week. Counsel for the Twins asked that the visitation be increased
“because [Mother] has been doing quite well with her supervised visits.” Department
manager Markytan stated that Mother was “still between five and nine minutes late to
visits,” but that visitation was otherwise “going very well.” The Department
recommended that the court “go ahead and lift the monitoring, but keep the visits at the
Family Resource Center, so there still would be a social services aide there, but not
directly monitoring them at all times.”
       The court said, “Okay. So we’re going to increase the visits. And at a minimum I
want no huge bags of toys, and I want her to be fifteen minutes early.” Based on Singer’s
report, the court denied Mother’s requests for visitation in her home and on holidays.
The court said, “I want to increase visitation, but I’m not ready to say mom is ready to fly
without training wheels.”
       When Markytan said the Department did not “necessarily” agree to increased
visitation, the court responded, “I want to increase the amount of time. I think that’s
what [the Twins’ counsel] thinks is appropriate. [¶] The kids benefit from it.” The
paternal grandmother said it was “fine” for the court to give the Twins “more hours” with
Mother, but expressed doubts about their availability for the increased visitation given
their after school activities. Markytan said the Department would need to work out
logistics of the visits given the FRC’s hours of operations.
       The court told Markytan: “Well, do it because here’s the problem. If we don’t
increase visitation, then we’re setting up failure. And we’re setting up . . . the argument
that the department hasn’t provided reasonable services because visitation is part of the
reasonable services.” “The Court: Sorry, but that’s what we have to do. [¶] Ms.
Markytan: I’m not complaining one bit. I just simply wanted to get some clarification.
But we will work to see what we can do with the time constraints of the FRC. [¶] The
Court: Enhance the time. She’s got to be fifteen minutes early no bags of toys. [¶] Ms.
Markytan: Got it. [¶] The Court: No overnight. No unsupervised. We got to keep
moving forward.”


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       At the conclusion of the hearing, Mother’s counsel said, “And just one more thing
for clarification. The mother is asking for a specified amount of time that the Court can
order for the visitation because she’s concerned the department will just give her an extra
hour as opposed to something a little more significant that sounds like [the Twins’
counsel] wants.” The court replied, “If she’s getting five hours a week now and she gets
seven or eight until we come back in January, that will work for me. Again, subject to
availability. Kids have school; kids have homework; kids have dance lessons; kids have
therapists to go to. It all adds up. She lives in Hiouchi. He lives in Smith River. CASA
is down here, and on and on it goes. All this stuff takes time. Transportation. So do the
best you can. But that’s my ‘expectation.’ ”
       (2) Review
       “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. [Citations.] To sustain this balance
the child’s social worker may be given responsibility to manage the actual details of the
visits, including the power to determine the time, place and manner in which visits should
occur.” (In re S.H. (2003) 111 Cal.App.4th 310, 317.) However, a court cannot delegate
to any third person “unlimited discretion to determine whether visitation is to occur.” (In
re Hunter S. (2006) 142 Cal.App.4th 1497, 1505; see In re Kyle E. (2010) 185
Cal.App.4th 1130, 1135 [same].)
       Mother claims that requiring her to arrive for visits 15 minutes early ran afoul of
these precedents because this condition improperly “permitted the Department to have
the power to deny all visitation to her.” However, there was no improper delegation of
discretion to determine whether visitation would occur. Mother, not the Department, has
the power to determine whether the condition will be satisfied. She will either show up at
the required time or she will not. The condition grants the Department no discretion, it
just requires the Department to monitor Mother’s punctuality.
       “[W]hen the court orders visitation, it must also ensure that at least some
visitation, at a minimum level determined by the court itself, will in fact occur.” (In re


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S.H., supra, 111 Cal.App.4th at p. 313.) Mother contends that the court violated this rule
because it failed to specify the “total number of hours” of visitation she was to receive,
and the “frequency and length of the visits.” However, the court’s directives were
sufficiently specific. The court made it very clear at the hearing that it was ordering that
Mother receive more than the five hours of visitation per week she was being given.
Mother observes that the court stated at one point “Mother can have increased visitation
under the terms and conditions set forth by the department as to the time.” In context,
this comment about the Department’s control over the time of visitation referred to the
timing, not the extent, of the visitation. At the end of the hearing, the court
acknowledged the practical difficulties with arranging the visits, but said it
“ ‘expect[ed]’ ” that Mother would begin receiving seven or eight hours of visitation per
week. The minimum amount of visitation was thus made reasonably clear.
B. Reasonable Services
       Mother contends that if the court found by implication she was receiving
reasonable services, the implied finding was not supported by substantial evidence. The
alleged deficiency was failure to provide Mother with counseling as required by the case
plan adopted at the six-month review, which required her to participate in counseling
with “Marla Bartow, MFT in order to develop a co-parenting plan with her children’s
father.” At the interim review, Mother’s counsel advised that Bartow was refusing to
provide this counseling, “so now mom is in a position of she doesn’t know what she’s
supposed to do to fulfill that requirement. So I’m hoping that the department will be able
to figure that one out.”
       The court responded: “Me too. But, you know, they’re obligated to provide
reasonable services, but reasonable as defined by the courts of appeal is—it also has to
consider what’s available. I mean, here we are at the far northern corner of the State of
California. This is not Santa Clara. We don’t have piles of money and clinical clinicians,
you know, ten, fifteen, thirty different clinicians available. We’ve got very few. Just like
the same problem we have getting lawyers in these cases where there’s multiple
defendants or multiple parties. [¶] So reasonable services is based on, you know, what’s


                                              6
reasonably available. And that’s part of the problem. Another part of the problem is . . .
a lot of these local service providers don’t want to be the next defendant in federal court.1
[¶] So good luck, department, sorting that out. Do the best you can. That’s all we can
do.”
       Mother’s argument about the lack of evidence for an implied finding lacks merit in
the first instance because the court did not purport to make any findings, express or
implied, about the provision of reasonable services or anything else at the interim review.
The court stated early in the hearing, “This is an interim review. I’m not going to make
any findings, and I haven’t looked at any report other than Dr. Jenesky’s and Dr.
Singer’s.”
       Nor does Mother identify any authority mandating that a reasonable services
finding be made at the interim review. That finding will be required at the 12-month
review in April (Welf. & Inst. Code, § 366.21, subd. (f); Cal. Rules of Court, rules 5.708
(e), 5.715(b)(2)), a fact of which the court was well aware. The court set another interim
review hearing for January 24, 2014, saying, “I want to make sure we don’t get to April
and find out that reasonable services haven’t been provided . . . .” The court’s
ruminations on the potential difficulty of arranging counseling for Mother did not suggest
that the Department was absolved from making reasonable efforts to implement that part
of the case plan.
                                   III. DISPOSITION
       The orders at the interim review are affirmed.




       1
        As we noted in our June opinion, county counsel apprised the court at the
dispositional hearing that Mother had filed a federal suit “ ‘against just about everyone
involved in this case.’ ”


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                                _________________________
                                Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




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