In re R.W. CA4/3

Filed 1/5/22 In re R.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re R.W., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060413
Plaintiff and Respondent,
(Super. Ct. No. 18DP1054)
v.
OPINION
K.A.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Antony C.
Ufland, Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Kristen Lecong,
Deputy County Counsel, for Plaintiff and Respondent.
* * *
When the juvenile court terminated its jurisdiction over R.W., it entered an
exit order granting his mother, appellant K.A. (Mother), four hours of supervised
visitation per week. Mother challenges that order on appeal, asserting the court abused
its discretion when it failed to grant her request for more liberal visitation. We disagree
and therefore affirm. The visitation order was well within the court’s discretion.
FACTS
This is our third opinion in this proceeding. As detailed in our previous
unpublished opinions (In re R.W. (Oct. 19, 2020, G058884) and In re C.A. (Mar. 3, 2021,
G059464)), Mother has an extensive history of methamphetamine abuse, a related
criminal history, and various mental health issues, including paranoia, delusions, and
hearing voices.
In October 2018, the Orange County Social Services Agency (Agency)
filed a juvenile dependency petition concerning Mother’s infant son, R.W., and his two
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older half-sisters, based in large part on Mother’s unresolved mental health issues and
substance abuse, as well as unresolved substance abuse by R.W.’s father. (See Welf.
2
& Inst. Code, § 300, subd. (b)(1).) The juvenile court found the allegations to be true,
sustained the petition, removed the minors from their parents’ custody, and ordered
reunification services. Mother’s case plan included a psychiatric evaluation, individual
counseling, drug testing, parenting education, and a substance abuse program.
1
The present appeal only concerns R.W., not his sisters.
2
All further undesignated statutory references are to this code.
2
In the subsequent review period, Mother visited her children on a fairly
regular basis. However, she fell asleep during some visits. She also missed numerous
drug testing appointments, tested positive for methamphetamine several times, and was
arrested for possession of a controlled substance.
After 12 months of family reunification services, the juvenile court
concluded Mother had made only minimal progress in her case plan and terminated her
services in January 2020. Per the Agency’s recommendation, the court ordered four
hours of supervised visitation with R.W. per week. In the months that followed, Mother
continued to struggle with substance abuse and was arrested multiple times for possession
of a controlled substance.
At the 18-month review hearing in September 2020, the juvenile court
placed R.W. with his father under a family maintenance plan. Per the Agency’s
recommendation, the court also continued the visitation arrangement of four hours per
week of supervised visitation between Mother and R.W.; R.W.’s father was not
authorized to supervise the visits.
Mother’s visits with R.W., which were largely virtual because of the
ongoing COVID-19 pandemic, generally went well, with Mother engaging appropriately
with the child. However, Mother continued to struggle with her sobriety and was arrested
again for possession of methamphetamine and a meth pipe in September 2020; she
admitted to the arresting officer that she has used methamphetamine “[e]very day, off
& on, for the last [ten] to 15-years.” Mother’s visitation referral was also terminated in
March 2021 after she missed three visitation appointments, requiring her to seek
reinstatement.
In anticipation of the April 2021 section 364 review hearing, the Agency
recommended that the juvenile court terminate jurisdiction, award custody over R.W. to
the father, and issue exit orders continuing the same visitation arrangement. The Agency
reported Mother’s visits with R.W. were “going well with little concern,” but it also
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noted Mother had made “minimal progress to show the mitigation of [the] safety
concerns which brought the child to the attention of the Juvenile Court,” and thus would
require supervised visitation going forward.
Mother testified on her own behalf at the section 364 review hearing. She
agreed with the Agency’s recommendation to terminate jurisdiction, but she did not agree
with its recommendation that she have only four hours of supervised visitation per week.
According to Mother, R.W. (now age 4) clearly enjoys their visits; he always runs up to
her and hugs her at the beginning of their in-person visits; and he begs her not to hang up
at the end of their virtual visits. Mother further testified that four hours of visitation
barely gives her and R.W. enough time to get comfortable with each another, and she
suggested eight to 10 hours of visitation per week would be more appropriate.
During oral argument, Mother’s counsel argued for a more liberal visitation
arrangement, asserting it would be in R.W.’s best interest. Counsel for the Agency,
R.W., and the father all asked the juvenile court to adopt the Agency’s proposed exit
orders.
After hearing from counsel, the juvenile court terminated jurisdiction and
issued exit orders which granted Mother four hours of weekly supervised visitation (the
existing arrangement). The court explained it was adopting the Agency’s
recommendations but added that Mother could ask the family court to increase visitation
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if there was some change in circumstances in the future. Mother filed a notice of appeal.
3
A family court may later modify a juvenile court’s section 362.4 exit
orders, but only if it “finds that there has been a significant change of circumstances since
the juvenile court issued the order and modification of the order is in the best interests of
the child.” (§ 302, subd. (d).)
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DISCUSSION
A juvenile court has the authority to issue an order for custody and
visitation when dependency jurisdiction is terminated. (§ 362.4, subd. (a).) In issuing
such an exit order, the juvenile court must “make an informed decision” that focuses on
the best interests of the child. (In re John W. (1996) 41 Cal.App.4th 961, 973.) We
review a section 362.4 exit order for abuse of discretion; we will not disturb the order
unless the juvenile court made an arbitrary, capricious, or patently absurd determination.
(In re M.R. (2017) 7 Cal.App.5th 886, 902.)
Mother’s sole argument on appeal is that the juvenile court abused its
discretion in issuing its exit order by failing to grant her more visitation time with R.W.
According to Mother, the court had no reason to deprive her of additional visitation, and
it was arbitrary for the court to continue with the same visitation amount as before.
We cannot agree. The record here confirms Mother had significant
unresolved substance abuse issues that persisted throughout R.W.’s dependency case.
Mother failed to demonstrate any progress in addressing those issues, and she fails to
address those issues on appeal. Although her visitation was generally appropriate and
R.W. appeared to enjoy the visits, Mother’s behavior outside the visits prevented the
court from moving her visits from the confines of a visitation center. Accordingly, we
cannot say the juvenile court abused its discretion in limiting Mother’s monitored
visitation with R.W.
This is not a case where the juvenile court refused to allow a party to testify
about visitation or applied the wrong legal standard, so the cases Mother relies on do not
assist her. (See S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016 (S.T.) [court’s
application of wrong legal standard in terminating reunification services required
reversal]; In re Roger S. (1992) 4 Cal.App.4th 25, 29 [court’s refusal to hear evidence on
visitation before issuing exit order was reversible error].) The court here allowed Mother
to present evidence, including testimony, to support her request for additional visitation.
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After considering all of the evidence, the juvenile court determined that no change in
Mother’s visitation frequency was appropriate.
Citing the rule that failure to exercise discretion is an abuse of discretion
(S.T., supra, 177 Cal.App.4th at p. 1016), Mother asserts the juvenile court did not
employ any discretion in crafting its visitation order, simply leaving the prior visitation
order in place without regard to Mother’s positive visits with R.W. We disagree. The
court weighed the evidence, heard argument from both sides, and ultimately adopted the
Agency’s recommendation. The fact that the amount of visitation granted in the exit
orders was the same amount afforded in the prior visitation order is not evidence the
court failed to exercise its discretion.
DISPOSITION
The order is affirmed.
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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