Filed 5/9/22 Huerta v. Mendez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gregory Olson, Judge. Affirmed.

Jasmine Huerta in pro per., for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Introduction

Mother, Jasmine Huerta, appeals orders on three requests to modify a visitation order imposed along with exit orders from the juvenile court respecting two children with different fathers.[1] The visitation orders included in the exit orders to family court provided for four hours of visitation one time per week with two children, one of whom was placed with her father, and the other who was placed with the paternal grandmother. On the most recent application to modify visitation, the court determined that mother had failed to comply with orders that she complete at least four months of in-patient drug rehabilitation, among other issues. The court therefore reduced visitation to one and one-half hours per week, and disallowed telephone contact on Sundays as had been previously permitted. Mother appeals.

On appeal, mother argues that the court abused its discretion by (1) denying her request to increase the frequency or duration of her visits, (2) requiring the use of a professional visitation monitor at mother’s expense, and (3) requiring mother to complete a four-month inpatient rehabilitation program as a condition of having visits. We affirm.

Background

Mother’s rendition of the history of this case is incomplete and misleading. Nevertheless, we have gleaned from the record some salient facts pertinent to our review.

Mother has a daughter with Alejandro Mendez, D. M-H., born in 2010, and a daughter with Guadalupe Arellano, K.A., born in 2016. At some point both children were removed from mother’s custody and dependency proceedings were instituted in 2018. Thereafter, custody of D.M-H. was awarded to her father, while custody of K.A. was placed with her paternal grandmother, Mayra, due her father’s incarceration in 2017. The register of actions reflects that on December 10, 2018, the family law court read and considered exit orders from the dependency case, suggesting the dependency ended then.[2]

Intervention by child protective services was related to mother’s abuse of methamphetamine, as reflected by the various services provided to mother in 2018 and 2019. However, the services in which she participated were outpatient programs of short duration. For instance, she completed five days at Hacienda Valdez, a drug and alcohol treatment facility operated by Ranch Recovery Centers, Inc. before enrolling and participating in the intensive outpatient treatment program between October 9, 2018 and October 25, 2018. She also enrolled in the Indio Substance Use Program on October 9, 2018, but there is no indication she completed the program.

The original visitation order, made on October 15, 2018, was contained in the exit orders, which were modified on August 8, 2018. The modification authorized mother to have four hours of visitation once per week, at a pizza restaurant, to be supervised by a professional visitation monitor at mother’s expense, as well as telephone contact twice a week for thirty minutes each.

On September 17, 2019, mother filed a family law request for order to modify the visitation order in the case of her daughter D.M-H. Although there is no record of mother’s request in the case involving her other daughter, K.A., the reporter’s transcript in case No. E075906 reflects that the court considered a motion to modify the visitation orders in both cases. Mother’s request for order sought to eliminate the requirement of a professional visitation monitor because she could not afford the expense.

Following a hearing as to both children, held on October 29, 2019, both the father of D. M-H. and the paternal grandmother of K.A. objected to the requested change. Father of D. M-H. informed the court that the professional supervisor no longer wished to work with mother because mother was unreliable and untrustworthy. The court also noted that mother had picked up a new criminal case, for which mother had been granted diversion pursuant to Penal Code section 1000, but mother had been terminated from that program for failing to show up. Mother had enrolled in family preservation services prior to being granted diversion but stopped participating in that program in order to do the diversion. The court concluded mother needed more help than diversion would provide and denied the modification request to discontinue the supervision request. In addition, the court ordered mother to complete an in-house (inpatient) rehabilitation program for a minimum of four months and provide proof of completion before any future court dates or child custody recommendation counseling (CCRC) appointments.

On November 21, 2019, mother filed another request for order, again seeking to eliminate the requirement of a professional visitation monitor as to both children. On January 6, 2020, this request was also denied.

On June 12, 2020, mother made another request for court order, requesting the same relief: elimination of the professional visitation monitor requirement, and to move the visits to a different location. In a supporting declaration, mother stated she could not afford to pay for the visitation supervision and preferred to have visits at a location other than the pizza restaurant, due to the cost of food and entertainment. She indicated that the pandemic had resulted in a reduction of her work hours, affecting her ability to pay. In support of her request, she referred to her September 2018 enrollment in Hacienda Valdez, and her later enrollment in the Gateway Program, where she completed 60 days of inpatient treatment.

On September 25, 2020, the court heard mother’s request for order in both cases. At the hearing, mother revealed she had not visited for seven months due to the closure of the pizza restaurant, attributed to the pandemic, and father’s position that alternate locations were not good alternatives because mother was still doing what she did before. Father was also concerned because he had seen mother in the company of a known criminal, with whom she had been hanging out when the children were originally removed from her custody. The court noted mother had not completed an inpatient rehabilitation program, which mother admitted, but stated she had been involved in an outpatient program.

The court, after considering the arguments of the parties, modified visitation, but not as mother had requested. Instead, frustrated over mother’s resistance to drug rehabilitation, it reduced visits to one and one-half hours each Saturday at a different pizza restaurant; mother was ordered to remain in the restaurant with the children for the duration of the visit. The court further eliminated the supervision requirement for visits, instead ordering that the father of D.M-H., and the paternal grandmother of K.H. could be present in the restaurant during the visit but would sit at a different table. The court also terminated mother’s weekly telephone calls. It also re-ordered mother to undergo a minimum of four months of an inpatient drug treatment program before seeking another modification.

On October 9, 2020, mother appealed.

Discussion

1. Preliminary Matters

The only visitation order properly before us is the order made on September 25, 2020, in which the court reduced visitation to one and one-half hours on Saturdays, from 12:00 to 1:30 p.m., without a professional visitation monitor, and discontinued mother’s telephonic visitation on Sundays. Unfortunately, mother does not even address that order, choosing, instead, to challenge the prior orders denying her requests for increased visitation and elimination of the supervision requirement, which are not properly before us. Those orders have been superseded by the more recent orders and are moot.

The United States Supreme Court long ago stated, ‘[t]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’” (Mills v. Green (1895) 159 U.S. 651, 653 [16 S.Ct. 132, 40 L. Ed. 293]; see also, Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132-133; In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.)

The Family Law Court previously ordered visitation for four hours weekly, supervised by a professional monitor at mother’s expense, as well as an order that mother complete a minimum of four months of inpatient drug treatment. However, those visitation orders were superseded by the current visitation order, rendering any relief from the past visitation orders unnecessary or ineffectual. (See Paul v. Milk Depots, Inc., supra, 62 Cal.2d at p. 133.) We decline to address the moot issues.

2. Review of the September 25, 2020 Order Modifying Visitation

Mother does not challenge the order issued on September 25, 2020, where her visits were reduced and her telephonic contact on Sundays was cancelled. Instead, she challenges the orders made at two previous hearings where her request to increase visitation was denied and she was ordered to obtain inpatient drug treatment for a minimum of four months. Because she has not raised a colorable argument challenging the visitation order currently in place, she has forfeited any claim of error in that order. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [“Appellate briefs must provide argument and legal authority for the positions taken.”].) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.)

However, even on the merits, the record does not support a claim of error. In reviewing a superior court’s ruling on visitation, we apply the deferential abuse of discretion test. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1087.) “The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

Family Code section 3100 provides in part that “n making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in Section 3011, and consistent with Section 3020.” “When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents.” ([i]Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, Fam. Code, § 3011.)

Specifically, Family Code section 3011 requires a court to consider, among other things, “The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent.” Thus, while the policy, expressed in Family Code section 3020, subdivision (b), favors “frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy . . .” visitation orders are generally modifiable whenever the court finds modification is necessary and proper, and in the child’s best interests. (Fam. Code, §§ 3022, 3087, 3088.)

Here, the court was concerned about mother’s continued use of controlled substances—which had led to her original loss of physical custody of the children in juvenile dependency proceedings—and her resistance to even minimal treatment to ameliorate the problems that led to her loss of custody.

Mother has failed to present the full factual backdrop for the court’s orders regarding her visitation requests, and her lack of forthrightness in the trial court is reflected on appeal. Given the actual circumstances presented to the trial court, its orders were well within its broad discretion and are in the children’s best interests.

Disposition

The judgment is affirmed. Costs are not awarded because neither respondent appeared in the appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.

[1] Mother made three consecutive requests to change court order made in October 2019, January 2020, and September 2020. Challenges to the October 2019 and January 2020 are barred because the notice of appeal from the most recent order was filed more than 60 days after the prior orders. (Cal. Rules of Ct., rule 8.104.) Additionally, it is well-settled that an appeal from the most recent order may not address orders made at previous hearings. (In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705, citing In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563; see also, In re Cassandra B. (2004) 125 Cal.App.4th 199, 208-209.) Therefore, we limit our attention to the orders made on September 25, 2020, although we will refer to the prior proceedings for historical context.

[2] The record does not include any direct evidence showing the termination of the dependency.