In re S.W. CA1/3

Filed 6/22/23 In re S.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re S.W., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO COUNTY
HUMAN SERVICES AGENCY, A166403
Plaintiff and Respondent,
v. (City and County of San Francisco
Super. Ct. No. JD213240)
D.W.,
Defendant and Appellant.
This juvenile dependency proceeding concerns S.W. (the child), whose
parents are D.W. (Father) and K.W. (Mother). Father appeals from an
August 24, 2022, custody order and final judgment (one document), in which
the court dismissed the dependency proceeding, granted Mother sole legal
and physical custody, and denied Father visitation with the child.1
1
We deem Father’s notice of appeal from an August 23, 2022, order,
ordering full legal and physical custody to Mother and no visits to Father, to
be a notice of appeal from the August 24, 2022, Judicial Council form custody
order and final judgment (one document). (Cal. Rules of Court, rule
8.100(a)(2) [notice of appeal should be liberally construed; it is sufficient if it
identifies the judgment or order being appealed].)
1
Father does not challenge the termination of dependency jurisdiction or
the custody order in favor of Mother. His only contention on appeal is that
the court erred in denying visitation. Because we find no abuse of discretion
in the court’s denial of visitation, we affirm.
FACTS2
Background
Father and Mother are married and the parents of S.W., who was born
in October 2021.
Mother used methamphetamines at times during the last three months
of her pregnancy. She reported that her drug use followed a series of
traumatic events and was also triggered by Father’s involvement with
another woman and Father’s arrest and incarceration on murder charges just
weeks before the birth of the child. Mother reported that in 2019 she had
been diagnosed as suffering from depression but did not take prescribed
medication; after the child’s birth, Mother began taking prescribed
medication which she found ameliorated her moods. Father reported that
during Mother’s pregnancy, he was not living consistently with her and did
not have stable employment. Father knew Mother was abusing drugs
intermittently during the pregnancy and he submitted to an allegation that
he had “made it easier for her to use drugs.”
In October 2021, the San Francisco County Human Services Agency
(the Agency) intervened when the child tested positive for drugs at birth.
Mother and the child entered a residential drug treatment program. The
Agency filed a petition under Welfare and Institutions Code3 section 300,
2 We set forth only those facts necessary to resolve this appeal.
3 All statutory references are to the Welfare and Institutions Code.
2
amended twice, seeking to declare the child a dependent of the court for the
purpose of initiating a family maintenance plan for Mother.
At hearings held in November 2021, the court appointed counsel for
Father, who was still incarcerated. Father’s status was elevated to presumed
father as he and Mother were married at the time of the child’s birth.
Combined Jurisdiction and Disposition Hearing
On January 26, 2022, the juvenile court held a combined jurisdiction
and disposition hearing. Before the hearing, the Agency filed a report and
several addenda recommending that S.W. be declared a dependent, that
Mother be offered family maintenance services, and that no services be
offered to Father.
The Agency reports reflected that Mother promptly engaged in mental
health and substance abuse services after Agency intervention in October
2021. By January 14, 2022, she had completed a residential drug treatment
program and both she and the child were doing very well. Father remained
incarcerated, his release date was unknown, and the reports reviewed his
extensive criminal history. The Agency did not recommend services for
Father given his incarcerated status and given that the detention facility
where Father was incarcerated offered only video visits due to the COVID-19
pandemic. Mother did not want to participate in or supervise the child’s
visits with Father.
Based on the parents’ submissions, the court found true the second
amended petition’s allegations regarding Mother’s substance abuse and
mental health issues and Father’s failure to protect the child from Mother’s
drug use while she was pregnant. The court found the child to be a person
described in section 300, placed the child in Mother’s custody, and ordered
the Agency to provide family maintenance services for Mother. The court did
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not grant family maintenance or reunification services for Father but did
grant supervised visits a minimum of once a month, “if possible.”
Contested Six-Month Status Review Hearing
The Agency filed a report for the status review hearing originally
scheduled for July 19, 2022 (“July 19 report”) and an addendum report for the
continued hearing scheduled for August 23, 2022 (“August 23 report”). In
each report, the Agency recommended the court dismiss the dependency and
grant Mother sole legal and physical custody of the child with no visitation to
Father.
As reflected in the reports, Mother had consistently engaged in
outpatient substance abuse treatment services, participated in collaborative
family treatment court, and was near completion of a parenting class. The
child was physically and emotionally on target. Mother planned to divorce
Father.
Father remained incarcerated. The July 19 report stated that while
Father had been granted supervised visits, Mother did not allow the child to
participate because she felt it was not in the child’s best interest given
Father’s complete absence from the child’s life (including her pregnancy), and
due to the nature of his criminal charges. The August 23 report noted that
virtual visitation between the child and Father had not been possible. The
social worker had asked Mother if the child could attend virtual visits
supervised by the Agency, but Mother was not willing, again due to Father’s
lack of involvement with her pregnancy or the child and the severity of the
criminal charges against Father.
At the status review hearing, the court considered the Agency reports,
heard the testimony of Mother and the Agency social worker, and allowed a
statement made by Father. The court also considered counsels’ arguments.
4
The Agency social worker testified she held bachelor’s and master’s
degrees in social work and had interned with the Los Angeles Department of
Children and Family Services and the San Mateo Children and Family
Services in the emergency response department. She was currently a
protective services worker with the Agency, assisting families to maintain
safe homes, reunification, and permanent placements, and working with
newborns to teenagers.
The Agency social worker had been assigned to this case for
approximately six months and was aware the court had ordered virtual visits.
She had explained to Mother that the court-ordered visits were mandatory,
but Mother had refused to allow the child to participate even if Agency staff
supervised the visits. Mother did not want any visitation as Father had no
relationship with the child and was not present when she needed him during
the pregnancy or birth. Mother was also concerned about the severity of the
charges pending against Father.
The Agency social worker opined that it would not be in the child’s best
interest to have virtual visits with Father as the child never had a
relationship with Father and had no familiarity with his face or voice. She
explained that a young child is typically unable to focus on a screen, has
difficulty engaging on a virtual call, and often just does their own thing
during the virtual visit. She did not believe that a virtual visit either once a
month or once every two weeks would increase the child’s awareness of who
Father was, especially given the child’s young age.
Mother testified that she last saw Father approximately one month
before he was incarcerated on criminal charges in 2021, at which time she
was pregnant with the child. Mother was aware of the court-ordered visits
but did not think it was in the child’s best interest to participate in those
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visits. She stated the child was very connected to her, only wanted to be with
her, and cried even when being held by his older half-siblings.
Father told the court he wanted a relationship with his son. Father’s
counsel informed the court that Father did not contest dismissal of the
dependency, but requested the court continue the earlier order allowing for
once monthly supervised visits with the child.
The court determined that dismissal of the case was appropriate and
awarded Mother sole legal and physical custody of the child. The court
denied Father’s request for visitation, finding that based on the totality of the
circumstances it was not in the child’s best interest at that time for the child
to engage in virtual visits. The court commented that since Mother had not
facilitated the previously court-ordered visits, Father would not be penalized
for failing to take advantage of those visits. Nonetheless the court was
tasked with making its decision based on the extant circumstances, which
were that Father had been incarcerated since before the child had been born
and hence had never seen the child. When counsel asked if the court was
making a detriment finding, the court commented that it was not denying
visitation based on detriment but rather on the child’s best interest.
In its August 24, 2022, Judicial Council form custody order and final
judgment (one document), the court included an attachment that reads: “The
Court finds and orders: [¶] Based upon the totality of the circumstances at
this point in time, the Court is not ordering visits for the father, [D.W.] If
there is a change in circumstances, [the father] can bring the matter to the
Court and ask for a change in the current order. The father is currently
incarcerated pending charges including violation of Penal Code section 187,
murder. [¶] The Court finds it is not in the minor’s best interest to order that
he be put in front of a screen for monthly virtual visits with his father.”
6
Father’s timely appeal ensued.
DISCUSSION
The applicable law is well settled. When terminating its jurisdiction in
a dependency at a hearing held pursuant to section 364, the juvenile court
has broad discretion to issue exit orders concerning custody and visitation
(§ 362.4, subd. (a)). Once issued, the exit orders are transferred to the family
court and remain in effect until they are modified or terminated by the family
court. (Id., subds. (b), (c).) Indeed, the custody order and final judgment in
this case has been filed with a family law case number in the San Francisco
Superior Court.
On appeal, we review an exit order for an abuse of discretion. (In re
J.M. (2023) 89 Cal.App.5th 95, 113.) “We will not disturb the juvenile court's
decision ‘ “ ‘unless the . . . court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd determination.’ ” ’ ”
(Ibid.) Here, we cannot conclude the court abused its discretion in denying
Father visitation.
As a preliminary matter, we find unavailing Father’s reliance on
statutory and case law applicable to custody and visitation orders made in
the context of proceedings between parents under the Family Code. “Because
juvenile dependency proceedings arise when children are subject to or at risk
of abuse or neglect, ‘[t]he presumption of parental fitness that underlies
custody law in the family court just does not apply. . . . Rather the juvenile
court, which has been intimately involved in the protection of the child, is
best situated to make custody determinations based on the best interests of
the child without any preferences or presumptions.’ ” (In re J.M., supra, 89
Cal.App.5th at p. 112.)
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In making exit orders, the juvenile court’s primary focus must be on the
child’s best interests. (In re J.M., supra, 89 Cal.App.5th at p. 113, and the
cases cited therein, including In re T.S. (2020) 52 Cal.App.5th 503, 513 [when
the juvenile court makes custody and visitation orders under § 362.4, “ ‘the
court’s focus and primary consideration must always be the best interests of
the child’ ”].) The record before us demonstrates the court focused on the best
interest of the child in deciding whether to order video visits – the only visits
available due to Father’s incarceration – and considered the totality of the
circumstances. Before the court was evidence the child was thriving, Mother
had maintained her sobriety and was committed to providing high quality
care, and Father had no prior connection with the child. And the Agency
social worker explained the extremely limited, if any, utility of virtual visits
given the child’s very young age coupled with no prior contact. In
determining that the 10-month-old child’s best interest would not be served
by placing him in front of a video screen for a virtual visit with an unknown
person, the juvenile court “was entitled to find the social worker credible and
to give [great] weight to her assessments and testimony.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 53, disapproved on another point in In re Caden C.
(2021) 11 Cal.5th 614, 636, fn. 5; see In re Liam L. (2015) 240 Cal.App.4th
1068, 1089 [“[t]he juvenile court could reasonably agree” with the social
worker’s recommended placement after reviewing all the evidence]; In re Cole
C. (2009) 174 Cal.App.4th 900, 918 [the juvenile court “was entitled to find
the social worker’s opinion[s] credible and give great weight to her
assessment”].) As an appellate court, it is not our role to reweigh the
evidence and substitute our judgment for that of the juvenile court. (In re
Casey D., supra, at pp. 52–53).
8
We see no merit to Father’s assertion that the court had to find
visitation detrimental to the child as a prerequisite to issuing its exit order
under section 362.4. Father points to no authority requiring such a finding of
detriment, and indeed, the law imposes no such requirement. (In re J.M.,
supra, 89 App.Cal.5th at p. 113 [in making exit orders under § 362.4 the
juvenile court is not required to make a finding of detriment “under any
circumstances”].)4 And, while the court stated it was not making a finding of
detriment, it clearly considered potential benefits and detriments to the child
by virtue of its ruling regarding the best interest of the child and acted well
within its discretionary authority in denying visitation. It also considered
Mother’s failure to allow visitation, and her rationale for doing so.
We are not persuaded by Father’s arguments that the court should
have issued an exit order continuing the existing seven-month-old January
2022 visitation order to correct Mother’s “conception” that she could ignore a
court order or avoid a “de facto absolute delegation” to Mother to determine
the terms of future visitation. The court had the authority to consider
evidence regarding whether to continue or modify the existing visitation
order. (See In re T.S., supra, 52 Cal.App.5th at p. 514 [during § 364 hearing
the juvenile court is “empowered to change prior orders” of custody and
visitation]; In re Roger S. (1992) 4 Cal.App.4th 25, 30 [during § 364 hearing
the juvenile court erred in finding that it was compelled to adopt an existing
seven-month-old visitation order without change and in refusing to consider a
parent’s proffered evidence for a change in the order].) Having considered the
4
Accordingly, we find unavailing Father’s reliance on cases decided
under completely different sections of the Welfare and Institutions Code, and
which largely focus on visitation in the context of reunification services not at
issue here.
9
evidence presented, and “[b]ased upon the totality of the circumstances,” the
court exercised its discretion and determined the visitation order should not
be continued after termination of the dependency.
In addition, and as made clear by the court at the hearing, the exit
order “contemplates that all persons subject thereto would remain under the
control of the family court and that any party who wished to contest the . . .
continued propriety of the order based on changed circumstances . . . would
be able to raise that issue in the family court.” (In re Chantal S. (1996) 13
Cal.4th 196, 214 [exit orders concerning father’s visitation, which left open
issues that remained within the purview of the family court, did not
constitute an unlawful delegation of the juvenile court’s authority].)5 The
exit order places no limitation on Father’s ability to seek future visits by
petitioning for that relief in the family court and, contrary to Father’s
contention, in no way limits him to seeking future visits only if he is no
longer incarcerated or can prove his innocence. Nothing in the exit order
5
If we were to find the juvenile court erred in its exit order, we would be
required to reverse and remand the matter to the family court, and not the
juvenile court as Father requests. “While remand to a court different from
the one which issued the judgment appealed from is, to say the least,
unusual, such a result is necessarily inherent in section 362.4, which
expressly contemplates future proceedings in the family court. By providing
that the exit order be filed [in the family court] . . ., the Legislature has
demonstrated an intent that any future court proceedings . . . be in the family
court. When the merits of a section 362.4 exit order are at issue (as distinct
from the validity of termination itself), the time lag inherent in the appellate
process itself means that any remand must necessarily be directed to the
family court. Who else is there when juvenile court jurisdiction has been
correctly terminated?” (In re John W. (1996) 41 Cal.App.4th 961, 976-977.)
Like any other parent and as standard when seeking a visitation
modification, on remand Father would be required to show (1) a substantial
change of circumstances since the exit order was made, and (2) that the
proposed modification would be in the child’s best interest. (§ 302, subd. (d).)
10
would preclude Father from requesting future visits, for example, based on
the child being of a sufficient age to meaningfully participate in virtual visits
or the availability of in-person visits. Of course, our decision should not be
read as expressing any opinion as to the types of changed circumstances that
would support a request for future visitation.
In sum, for the reasons stated, we uphold the exit order denying
visitation.
DISPOSITION
The juvenile court’s August 24, 2022, Judicial Council form custody
order and final judgment (one document) is affirmed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Rodríguez, J.
A166403/In re S.W. – San Francisco County Human Services Agency v. D.W.
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