A.C. v. Superior Court CA4/3 ( 2013 )

Filed 12/13/13 A.C. v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FOURTH APPELLATE DISTRICT
DIVISION THREE
A.C.,
Petitioner, G048936
v. (Super. Ct. No. DP021927)
THE SUPERIOR COURT OF ORANGE OPINION
COUNTY,
Respondent;
ORANGE COUNTY SOCIAL SERVICES
AGENCY et al.,
Real Parties in Interest.
Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Jacki C. Brown, Judge. Petition denied. Request
for stay denied.
The Law Office of Patricia Smeets Rossmeisl and Donna P. Chirco for
Petitioner.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy
County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Yana Kennedy for Real Party in
Interest A.P.
No appearance for Real Party in Interest G.P.
* * *
INTRODUCTION
A.C. (Father) seeks extraordinary writ relief from an order terminating
reunification services as to his now four-year-old son, A.P., and setting a selection and
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implementation hearing under Welfare and Institutions Code section 366.26, which is
scheduled for January 2, 2014. (Cal. Rules of Court, rule 8.450.) Father contends (1) his
due process rights were violated because the juvenile court failed to find by clear and
convincing evidence that vesting Father with custody of A.P. would create a substantial
risk of detriment to A.P.’s well-being; (2) insufficient evidence supported the juvenile
court’s detriment finding; (3) he was denied reasonable reunification services; and (4) the
juvenile court improperly delegated its authority regarding visitation to the social worker.
For the reasons we will explain, we find no error in the juvenile court’s
order. We therefore deny the petition for a writ of mandate.
BACKGROUND
I.
THE AMENDED PETITION
In November 2011, the Orange County Social Services Agency (SSA) filed
a juvenile dependency petition alleging that then two-year-old A.P. came within the
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All further statutory references are to the Welfare and Institutions Code.
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juvenile court’s jurisdiction under section 300, subdivision (b) (failure to protect). As
amended in February 2012, the juvenile dependency petition (the amended petition)
alleged that in November 2011, A.P.’s mother (the mother) gave birth to a child, S.P., at
which time both the mother and S.P. tested positive for amphetamines and
methamphetamines. The mother admitted to using methamphetamines on a number of
occasions while pregnant and while acting as A.P.’s primary caretaker. She had also
failed to obtain regular and consistent prenatal care during her pregnancy with S.P.
The amended petition further alleged that A.P.’s father’s location was
unknown and that his father failed to maintain a relationship with A.P., failed to provide
for him, and had been unable or unwilling to protect him from ongoing neglect by the
mother. A.P. was detained and placed with non-related extended family members.
II.
THE JURISDICTION AND DISPOSITION HEARINGS
At the jurisdiction hearing, the mother pleaded no contest to the allegations
of the amended petition. The juvenile court sustained the allegations of the amended
petition and set the disposition hearing. The court also found that SSA had exercised due
diligence in its efforts to locate and provide notice of the dependency proceedings to
A.P.’s and S.P.’s alleged fathers, based on the limited information the mother had
provided about them.
At the disposition hearing, the juvenile court declared A.P. a dependent
child of the court under section 360, subdivision (d). The court also ordered that S.P. be
removed from the placement she shared with A.P. and be evaluated for a separate
placement. As this appeal does not involve any issues related to S.P., no further
reference is made to her in this opinion.
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III.
A.P. IS PLACED WITH CURRENT FOSTER PARENTS; THE JUVENILE COURT
GRANTS FATHER VISITATION WITH A.P.
In March 2012, A.P. was removed from his original placement after
problems arose between the mother and the non-related extended family members. A.P.
was placed with another non-related extended family member but was removed from that
placement due to an illness in that family. On July 13, 2012, A.P. was placed in the
foster home of D.P. (the foster mother) and C.P. (the foster father), where he has since
remained by the last report in our record.
After having previously given SSA false information about the identity of
A.P.’s father, the mother informed SSA that on November 28, 2012, she had contacted
Father about A.P. and that he wished to attend the scheduled December 19, 2012 status
review hearing and request a paternity test. A social worker thereafter contacted Father
who stated he was not sure whether A.P. was his biological child. He also stated he had
seen A.P. one year earlier.
At the December 19, 2012 hearing, the juvenile court granted Father’s
request for a paternity test. On February 11, 2013, SSA received confirmation of the
paternity test results which showed that Father was A.P.’s biological father. At a
paternity status hearing on February 20, the juvenile court granted Father a maximum of
twice-weekly, two-hour, monitored visits with A.P.
In February, a social worker contacted Father about visitation. Father
agreed to a one-hour visit with A.P., and communicated his desire to be considered as
A.P.’s caretaker and ultimately to be granted custody of A.P. The first visit occurred on
February 26. The social worker told the visitation monitor and the foster mother that
A.P. should refer to Father as “A[.]” to decrease A.P.’s confusion until there had been
more regular visits between A.P. and Father. The visit ended early when A.P. said he
wanted to go home.
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Father cancelled the next scheduled visit on March 5, which upset A.P.
Father visited with A.P. on March 12 and 19; those visits were positive as Father
attempted to bond with A.P., by bringing toys and snacks and interacting with A.P. The
foster mother was reported to have a positive attitude toward Father’s visitation with A.P.
IV.
TWELVE-MONTH STATUS REVIEW HEARING
At the 12-month status review hearing on March 25, 2013, the juvenile
court found Father to be A.P.’s presumed father. The court ordered continued
reunification services to Father and authorized up to six hours’ supervised weekly
visitation with A.P.
V.
SUMMARY OF EVIDENCE REGARDING FATHER’S PARTICIPATION IN
SERVICES AND VISITATION WITH A.P., LEADING UP TO 18-MONTH
STATUS REVIEW HEARING
Father lived with his wife and three adult children. As of April 10, 2013,
Father’s wife did not know about A.P. Father told the social worker he would tell his
wife about A.P. if he was granted full custody. Father stated he was not willing to be
more proactive in reuniting with A.P., if he was not going to be granted full custody.
Father admitted that a year earlier, the mother had attempted to contact him and he knew
A.P. was in protective custody. He stated he did not attempt to contact SSA or seek an
attorney, figuring it “was all just gossip” that A.P. might be his biological child.
Father signed the juvenile court’s case plan on April 23, 2013, and agreed
to consider participating in individual counseling and a parenting class. Father initially
declined to take advantage of the full six hours of visitation per week, which was
authorized by the court, and, instead, preferred one hour, two times per week, of
monitored visitation. Father explained that his availability to visit during the week was
limited due to his demanding job.
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Father had eight visits with A.P. from February 26 through April 29, and
missed five scheduled visits during that time. On April 23, the foster mother reported
that A.P. was confused regarding Father’s relationship to him. A.P. appeared anxious
and had routinely asked the foster mother whether she will wait on the porch for A.P. to
return home from visits. A.P. asked whether the foster home would still be his home.
Father informed the social worker that he did not think visitation at one of
SSA’s buildings was effective and that he feared A.P. would not bond with him in that
setting; the social worker told Father he could have monitored visits at a park. Father
visited with A.P. at a park for one hour on May 7, two hours on May 13, and three hours
on May 20. Father cancelled a visit scheduled for May 14 due to his work schedule. In
May, Father’s wife learned about A.P.’s existence because she saw court reports that had
been mailed to their home. Her reaction was described by Father’s daughter as “shocked
and mad.” Father reported that his wife wanted to meet A.P. The social worker
expressed particular concern about tension in Father’s family in light of A.P.’s anxiety.
On May 21, 2013, the foster mother expressed concerns about A.P.’s
reactions to visits with Father. She stated that after the visits, A.P. would have a
“melt-down,” pull pictures off the walls, cry, hit himself, and try to hit her son. She
further stated that A.P. had displayed anxiety about leaving the house and her. A.P.
asked the foster mother to be sitting on the curb, waiting for him when returns home from
visits. A.P. checked on the foster family at night to make sure everyone was still there.
Father requested makeup hours for a cancelled visit, and also expressed the
desire to increase visits from four to six hours per week. The social worker told Father
that the court had already authorized six hours of visitation per week. Father participated
in individual counseling.
On June 4, A.P. came home from a visit with Father and became aggressive
toward the youngest foster child in the home. On June 5, during a home visit, A.P. told
the social worker that he did not want to have any more visits with Father. The foster
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mother told the social worker about A.P.’s disrupted patterns of sleep and that he suffered
an “extreme level of anxiousness” when either the foster mother or the foster father left
the house.
On June 12, the mother told the foster mother that Father said his wife
wants nothing to do with A.P., and that he will have to go to a daycare because his wife
would not care for him. The mother also expressed concern that Father goes out “all the
time” and she was worried about where A.P. would stay under those circumstances if
Father had custody. During a July 1 meeting with the social worker, Father’s wife stated
that she would not treat A.P. poorly and that she was willing to participate in counseling.
On June 17, Father had a three-hour monitored visit at a park with A.P.
That same day, the foster mother reported A.P. was anxious before visits and would state
he did not want to go with Father and did not want to leave his house. After the visits,
A.P. pushed and shoved the other children in the house. The foster mother reported that
she had consulted with a pediatrician regarding A.P.’s sleep problem. The pediatrician
told her A.P. was showing signs of stress.
On June 24, A.P. refused to go to a visit with Father, stating: “I’m not
leaving my house. I’m not leaving my family.” On July 2, although the foster mother
tried to encourage A.P. to go on a visit, A.P. cried and said he did not want to go. He did
not visit with Father on either of those days.
On July 9, the foster mother drove A.P. to the park to meet Father, and
assured A.P. she would not leave the park without him.
The next day, the social worker visited Father’s residence and was shown
the room that A.P. would stay in if he were to live there. Father told the social worker
that his family was very supportive of A.P. possibly moving into their home in the future.
Father also “expressed his continued support in slowing down the visits, to allow for the
child to transition.” He expressed “concern that [A.P.] is having tantrums and having a
‘hard time’ participating in the visits with [him].” Father was agreeable to having the
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foster mother and the foster father present during visits in an effort to help A.P. feel more
comfortable with Father.
The visit scheduled for July 22 was cancelled due to the lack of an available
social worker. The makeup visit was scheduled for July 27 and was monitored by the
foster mother and the foster father. During the visit, Father’s cousin, who was not an
authorized visitation participant, showed up unexpectedly and stayed at the park with
them.
On August 1, 2013, pursuant to the parties’ stipulation, the juvenile court
ordered three hours of supervised visitation and three hours of unsupervised visitation
each week. Father’s wife was permitted to attend supervised visits only. The court also
ordered that Father’s makeup visits could be unsupervised if his wife was not present.
During the August 10 visit between A.P., Father, and his wife, Father’s
wife appeared to be very attentive to A.P. On August 12, A.P. did not want to visit with
Father. A.P. screamed, “I don’t want to go anymore—don’t make me go anymore,” and
ran to his bed and cried. The social worker assigned to drive A.P. to the visit did not
show up due to the accidental termination of the visitation referral for that day. The visit
was rescheduled for August 19.
On August 19, A.P. visited with Father and returned home in a calm mood.
A.P. stated he was worried no one would be home when he returned.
VI.
AT 18-MONTH STATUS REVIEW HEARING, THE JUVENILE COURT
TERMINATES FATHER’S REUNIFICATION SERVICES AND SETS
PERMANENCY HEARING; FATHER SEEKS WRIT REVIEW.
At the 18-month status review hearing on September 5, 2013, the juvenile
court found vesting Father with custody of A.P. would create a substantial risk of
detriment to A.P.’s emotional well-being, and found reasonable services had been
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provided or offered to Father. The court terminated reunification services and scheduled
a permanency hearing for January 2, 2014.
Father timely filed a notice of intent to file a writ petition. In his petition,
Father seeks a peremptory writ of mandate directing the juvenile court to vacate its order
at the 18-month status review hearing and enter an order providing for the return of A.P.
to Father’s care or for additional family reunification services. Father also seeks a stay of
the permanency hearing, pending this court’s decision on Father’s petition.
During the pendency of this appeal, A.P.’s counsel filed an informal
response to the petition in this court, stating, inter alia, that she has “held the same
position as father at the eighteen month review hearing [and] . . . had planned to join with
father’s writ petition, however due to the ever changing nature of this dependency court
case, Counsel can no longer support out-right return to the father, nor the requested stay
of the 366.26 hearing to determine a permanent plan.” A.P.’s counsel explained she has
“recently received information regarding the child’s current circumstances which leads
Counsel to believe that there now exists a substantial risk of detriment if the child were to
be returned to his father’s care.” Counsel does not describe this new information,
explaining that pursuant to In re Zeth S. (2003) 31 Cal. 4th 396, this court cannot consider
it. Counsel further states: “Counsel continues to believe there is nothing about the father
personally, nor his current living situation that poses a substantial risk of detriment to the
child’s safety. Counsel will concede that father’s participation in visits could have been
better and father certainly should have told his wife about his child earlier. Counsel also
believes that the agency should have done more to increase the father’s visitation so that
A.P. was more comfortable with the father. From the child’s point of view it doesn’t
really matter whether it was the father, or S.S.A.’s fault that there were not enough visits.
Whatever the reason, the emotional detriment remains the same.” A.P.’s counsel
concludes: “Counsel believes that there was enough evidence to support a finding of
substantial risk to the child’s emotional well-being as A.P.’s anxiety and reaction to the
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visits was mixed and not necessarily improving. Therefore, although Counsel remains
sympathetic to the father’s position, counsel requests that this Court deny father’s writ
petition for return and request for stay, and uphold the trier of fact’s decision.”
DISCUSSION
I.
PURSUANT TO FATHER’S STIPULATION, THE JUVENILE COURT FOUND BY
CLEAR AND CONVINCING EVIDENCE THAT RETURN OF A.P. TO FATHER’S
CARE WOULD CREATE A SUBSTANTIAL RISK OF DETRIMENT TO A.P.
Pursuant to section 361, subdivision (c)(1), at the disposition hearing, the
juvenile court is required to make any finding that returning the child home would be
detrimental to a child by clear and convincing evidence. Here, the juvenile court made
that finding, but Father had not yet made an appearance in these proceedings, much less
been determined to be A.P.’s presumed father, at the time of the disposition hearing.
At the six-month, 12-month, and 18-month status review hearings, if the
juvenile court does not return the child to parental custody, it must find that vesting
custody with the parents would be detrimental, but that finding is based on the
preponderance of the evidence standard at those stages of the proceedings. (See
§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) Accordingly, at the 18-month status
review hearing, the juvenile court found by a preponderance of the evidence, under
section 366.22, subdivision (a), that vesting custody of A.P. with Father would be
detrimental to A.P.
Father argues the juvenile court erred and violated Father’s due process
rights, by terminating reunification services and setting a permanency hearing at the
18-month status review hearing without having previously made a finding by clear and
convincing evidence that vesting custody of A.P. with Father would create a substantial
risk of detriment to A.P. (See Santosky v. Kramer (1982) 455 U.S. 745, 747-748 [prior to
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terminating parental rights, due process requires a finding of parental unfitness by clear
and convincing evidence]; In re Gladys L. (2006) 141 Cal. App. 4th 845, 848
[“California’s dependency system comports with Santosky’s requirements because, by the
time parental rights are terminated at a section 366.26 hearing, the juvenile court must
have made prior findings that the parent was unfit”]; In re P.A. (2007) 155 Cal. App. 4th
1197, 1211 [“California’s dependency scheme no longer uses the term ‘parental
unfitness,’ but instead requires the juvenile court make a finding that awarding custody of
a dependent child to a parent would be detrimental to the child”].)
At the 12-month status review hearing on March 25, 2013, however,
Father, who was determined by the court to be A.P.’s presumed father, stipulated that the
court find, by clear and convincing evidence, that vesting custody of A.P. with Father
posed a substantial risk of detriment to A.P. The stipulation stated, inter alia: “Subject to
approval of the Court, the parties and Counsel propose the following stipulation and
request that all findings recommended herein be made by clear and convincing evidence:
[¶] . . . [¶] . . . Find pursuant to Sec[tion] 366.21[, subdivision ](f) that return of the child
to parents would create a substantial risk of detriment to the safety, protection, or
physical or emotional well being of the child.” The juvenile court thereafter “ma[de]
orders and findings pursuant to signed stipulation filed 3/25/2013” and found, “pursuant
to sec[tion] 366.21[, subdivision ](f) . . . that return of the child to parents would create a
substantial risk of detriment to the safety, protection, or physical or emotional well being
of the child.”
Thus, the juvenile court had made a finding, by clear and convincing
evidence, that vesting custody of A.P. with Father posed a substantial risk of detriment to
A.P., before the 18-month status review hearing at which reunification services were
terminated and the permanency hearing was set.
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II.
SUBSTANTIAL EVIDENCE SUPPORTED THE JUVENILE COURT’S FINDING
THAT VESTING CUSTODY OF A.P. WITH FATHER WOULD CREATE A
SUBSTANTIAL RISK OF DETRIMENT TO A.P.’S EMOTIONAL WELL-BEING.
Father contends insufficient evidence supported the juvenile court’s
finding, at the 18-month status review hearing, that vesting custody of A.P. with Father
would create a substantial risk of detriment within the meaning of section 366.22,
subdivision (a), which provides in pertinent part: “When a case has been continued
pursuant to paragraph (1) or (2) of subdivision (g) of Section 366.21, the permanency
review hearing shall occur within 18 months after the date the child was originally
removed from the physical custody of his or her parent or legal guardian. After
considering the admissible and relevant evidence, the court shall order the return of the
child to the physical custody of his or her parent or legal guardian unless the court finds,
by a preponderance of the evidence, that the return of the child to his or her parent or
legal guardian would create a substantial risk of detriment to the safety, protection, or
physical or emotional well-being of the child. The social worker shall have the burden of
establishing that detriment. . . . The failure of the parent or legal guardian to participate
regularly and make substantive progress in court-ordered treatment programs shall be
prima facie evidence that return would be detrimental. In making its determination, the
court shall review and consider the social worker’s report and recommendations and the
report and recommendations of any child advocate appointed pursuant to Section 356.5;
shall consider the efforts or progress, or both, demonstrated by the parent or legal
guardian and the extent to which he or she availed himself or herself of services
provided.” (Italics added.)
Section 366.22, subdivision (a) also requires that “[w]hether or not the
child is returned to his or her parent or legal guardian, the court shall specify the factual
basis for its decision.” We review the juvenile court’s finding of substantial risk of
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detriment under section 366.22, subdivision (a) for substantial evidence. (In re
Zacharia D. (1993) 6 Cal. 4th 435, 456.)
Here, the juvenile court explained its factual basis for determining that
vesting custody of A.P. with Father would create a substantial risk of detriment to A.P.’s
emotional well-being. The court stated: “I do find that return . . . of this child to the
father when detained from the custodial parent at age two, returning this child to a
completely unknown and absent parent at age three would create a substantial risk of
detriment to the child. [¶] I am using ‘substantial risk of detriment’ as defined by the
infliction of trauma from the disruption of the only life, home and family sphere that he
has ever known and that this would result in the destruction of the emotional well-being
of the child.” The juvenile court cited, inter alia, the following evidence in support of its
detriment finding: (1) A.P.’s negative behavior following visits with Father, including
throwing tantrums; (2) A.P. displaying “extreme confusion” about the idea that Father
was his father; (3) A.P.’s refusal to urinate during visits with Father at the park; (4) a
report that A.P. would exhibit distress in leaving his foster home for visits and would
display little affection toward Father; and (5) A.P. living with constant anxiety and
repeated refusals to attend visits with Father.
The court also observed that A.P’s significant anxiety was not eased by
Father’s failure to call or confirm some scheduled visits; his failure to pursue more
visitation time with A.P.; his initial refusal to provide SSA with his home address and,
thus, delaying an assessment of his home for A.P.’s possible placement; and his failure to
provide the foster mother with requested photographs of himself and his family to help
A.P. become more familiar and comfortable with Father.
Substantial evidence supported the juvenile court’s factual findings
supporting its ultimate determination that vesting custody of A.P. with Father would
create a substantial risk of detriment to A.P.’s emotional well-being.
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Citing In re Yvonne W. (2008) 165 Cal. App. 4th 1394, 1401, Father argues,
“[p]roving substantial detriment cannot mean merely proving that a parent’s living
arrangement is less than ideal.” As quoted ante, the court’s factual findings in this case
are far broader than, and different from, describing Father’s living arrangements. In
contrast, in In re Yvonne W., the appellate court concluded insufficient evidence
supported a detriment finding, stating, “[a] child’s dislike of a parent’s living
arrangement, without more, does not constitute a substantial risk of detriment within the
meaning of section 366.22, subdivision (a).” (In re Yvonne W., supra, at p. 1401.)
Furthermore, at the 18-month status review hearing, the juvenile court
stated: “I never considered the extent or quality of the relationship between A[.P.] and
his foster parents. I did consider the description and specification of the disruption,
confusion, turmoil and anxiety experience[d] by little A[.P.] and did extrapolate or
conclude therefrom that if he changed from the only secure home he has ever known, he
would suffer greatly.” This case is thus also distinguishable from Rita L. v. Superior
Court (2005) 128 Cal. App. 4th 495, 507, in which the juvenile court improperly
considered the quality of the relationship between the child and the de facto parents in
deciding to terminate reunification services.
III.
FATHER WAS PROVIDED OR OFFERED REASONABLE
REUNIFICATION SERVICES.
Father contends the juvenile court erred when it found reasonable
reunification services had been offered or provided to him. “Family preservation is the
priority when dependency proceedings commence. [Citation.] ‘Reunification services
implement “the law’s strong preference for maintaining the family relationships if at all
possible.” [Citation.]’ [Citation.] Therefore, reasonable reunification services must
usually be offered to a parent. [Citation.] SSA must make a ‘“‘good faith effort’”’ to
provide reasonable services responsive to the unique needs of each family. [Citation.]
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‘[T]he plan must be specifically tailored to fit the circumstances of each family [citation],
and must be designed to eliminate those conditions which led to the juvenile court’s
jurisdictional finding. [Citation.]’ [Citation.] . . . The adequacy of SSA’s efforts to
provide suitable services is judged according to the circumstances of the particular case.
[Citation.]” (Earl L. v. Superior Court (2011) 199 Cal. App. 4th 1490, 1501.)
“In almost all cases it will be true that more services could have been
provided more frequently and that the services provided were imperfect. The standard is
not whether the services provided were the best that might be provided in an ideal world,
but whether the services were reasonable under the circumstances.” (In re Misako R.
(1991) 2 Cal. App. 4th 538, 547.) We review the juvenile court’s finding that reasonable
services had been provided or offered for substantial evidence. (Angela S. v. Superior
Court (1995) 36 Cal. App. 4th 758, 762.)
Here, a case plan was developed, after Father was determined to be A.P.’s
presumed father, which included therapy, couples counseling, a parenting class, and
visitation. Substantial evidence showed Father was provided these services and visited
with A.P.
In his petition, Father argues the social worker failed to offer Father
reasonable reunification services because she (1) improperly limited his visitation;
(2) failed to include Father’s wife in visitation or therapy; and (3) failed to assess Father’s
home and family “so visitation could occur at father’s residence.”
Father argues his visitation was limited because two July visits were
cancelled. But, the record shows one of those visits was cancelled because A.P. cried and
resisted to go on the visit that day; under those circumstances, the decision not to force
A.P. to attend that visit was reasonable. A second visit was cancelled due to an
inadvertent error that resulted in the termination of the visitation referral for that day.
Father points out that the mistake in cancelling that visit caused a 10-day gap between
visits in August. Although visitation between Father and A.P. had a few bumps in the
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road, they did not rise to the level of Father not having been provided reasonable
reunification services.
Father also argues the social worker improperly moved Father’s visits from
taking place at a park back to an SSA building with an in-home coach. Father does not
offer any legal authority or facts showing that the provision of visitation under those
circumstances was unreasonable.
Father contends that although he had asked that his wife attend visits with
him in May, the court did not authorize his wife to participate until June. Father blames
the social worker for this delay, arguing that the social worker had known for four weeks
that his wife wanted to participate in visits, but did nothing to facilitate that visitation
during that time period. Father also argues the social worker knew for two weeks that his
wife wanted to participate in therapy, but failed to contact his wife during that time
period. Although Father’s wife’s participation in visitation and therapy was not approved
as quickly as Father might have liked, within a month of making those requests, Father’s
wife was given approval to participate; she received approval to participate in visitation
on June 12 and in therapy on July 25. This delay in facilitating Father’s wife’s
participation in services did not render the services provided unreasonable.
Father argues the social worker did not evaluate Father’s home or family.
The record shows Father initially refused to provide SSA with his home address because
he did not want his wife or family to learn about A.P. unless Father was granted full
custody of A.P. Father’s wife became aware of A.P. sometime in May 2013 and SSA
was advised of her awareness at some point later that month. Father’s home was
evaluated on July 10, 2013. The social worker might have been able to facilitate having
Father’s wife and children fingerprinted in anticipation of A.P.’s possible placement in
their home. But, in light of the fact that Father’s wife was not yet permitted to have
unsupervised contact with A.P., combined with A.P.’s high level of anxiety in response to
visiting with Father at all, the social worker’s failure to have fully vetted Father’s family
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by the 18-month status review hearing did not render the reunification services provided
to Father unreasonable. We find no error.
IV.
THE JUVENILE COURT DID NOT DELEGATE ITS AUTHORITY TO DETERMINE
VISITATION TO THE SOCIAL WORKER.
Father argues the juvenile court erred because at the 18-month status review
hearing, the court improperly delegated its authority to SSA to determine whether Father
might be able to visit with A.P. After ordering that the permanency hearing be set, the
juvenile court was required by section 366.22, subdivision (a) to “continue to permit the
parent or legal guardian to visit the child unless it finds that visitation would be
detrimental to the child.” We review the court’s visitation order for an abuse of
discretion. (In re S.H. (2011) 197 Cal. App. 4th 1542, 1557-1558.)
At the 18-month status review hearing, the court stated that the visitation
plan ordered on August 1, 2013, pursuant to the parties’ stipulation, would continue to be
the operative visitation plan. Father, therefore, was provided three hours’ unsupervised
visitation and three hours’ supervised visitation with A.P. per week; Father’s wife was
permitted to attend supervised visits. The juvenile court also stated that “the social
worker has only the discretion to liberalize visitation or cancel it if she is given evidence
of emotional harm to the child.” The juvenile court did not give the social worker
authority to decide whether Father should have visitation with A.P.; the social worker’s
authority to cancel a visit was expressly conditioned on the existence of evidence the visit
would cause A.P. emotional harm. (In re Christopher H. (1996) 50 Cal. App. 4th 1001,
1009 [“[o]nly when the court delegates the discretion to determine whether any visitation
will occur does the court improperly delegate its authority and violate the separation of
powers doctrine”]; see Christopher D. v. Superior Court (2012) 210 Cal. App. 4th 60, 73
[visitation order “subject only to the custodial facility’s visitation rules and the
requirement that visitation not be detrimental to [the child]”].)
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The juvenile court’s order allowing the social worker to cancel a scheduled
visit when confronted with evidence it would cause A.P. emotional harm was particularly
appropriate in this case, given the evidence before the court of A.P.’s high level of
anxiety and strong negative reactions to visits with Father. The juvenile court, therefore,
did not err by authorizing the social worker to cancel a visit under such circumstances as
it did not constitute an improper delegation of the court’s authority.
DISPOSITION
The petition for a writ of mandate, pursuant to California Rules of Court,
rule 8.450, and the request for a stay of the permanency hearing set for January 2, 2014
are denied.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
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