Filed 10/4/17 In re B.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Linda Rehm, under appointment by the Court of Appeal, for Minors.

I. INTRODUCTION

Defendant and appellant, J.L. (father), challenges the juvenile court’s order terminating his visitation with his children, B.L., L.L., and J.L., Jr. At the time the court made this order, this case was well beyond the reunification stage, and the children were in a planned permanent living arrangement (PPLA) with their foster mother. Father contends the court erred because it based its order solely on the children’s wishes, and substantial evidence did not otherwise support the court’s order. We do not agree with father’s assertion that the court based its decision solely on the children’s wishes and did not exercise its own judgment. The record contains ample evidence that continued visitation with father would have been detrimental to the children’s physical or emotional well-being. We therefore affirm.

II. FACTS AND PROCEDURE

A. Family History and Detention in This Case

Father has five other children who are the half siblings of B.L., L.L., and J.L., Jr. One of these half siblings who is now an adult, C.L., reported that father abused drugs and molested her repeatedly when she was a child. In June 1995, plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), filed a petition based on these allegations of sexual abuse; the juvenile court dismissed the petition without prejudice in March 1996. C.L. reported the molestation to law enforcement, but she was not emotionally capable of handling the criminal court process, and father was not prosecuted. A second adult half sibling described father as a “‘drug user, abuser, and child molester.’” A third adult half sibling described father as “‘always abusive.’” He thought father could be “‘a good guy’” when he was clean and sober, but when father “‘is using, he is not.’”

Father and Je.L. (mother) have an extensive dependency history with the children who are the subjects of this case.[1] Father and mother have been married since 2002. Between November 2002 and January 2012, DPSS received 11 referrals regarding the family. These referrals alleged drug use by the parents, domestic violence, unsanitary conditions in the family home, and/or a lack of adult supervision for the children. In eight of these instances, DPSS concluded the allegations were unfounded or its investigations were inconclusive. Regarding two of the other referrals, DPSS determined the allegations of unsanitary conditions were substantiated, but the parents tested negative for controlled substances. And, in January 2005, DPSS determined the allegations of mother’s drug abuse were substantiated, and the juvenile court removed the children from both parents’ custody. Father and mother received services and reunified with the children, and the court terminated jurisdiction in September 2006.

Father has a criminal history, including convictions between 1994 and 2000 for infliction of corporal injury on a spouse or cohabitant, forgery relating to an access card, robbery, battery, taking a vehicle without the owner’s consent, and being a convicted felon or narcotic addict in possession of a firearm.

The present referral to DPSS occurred in April 2012, when B.L. was 10 years old, L.L. was nine years old, and J.L., Jr. was seven years old. The reporting party alleged people were smoking methamphetamine in the family’s home and there was a methamphetamine lab on the property. DPSS investigated the family home and found drug paraphernalia within the children’s reach, and both parents tested positive for methamphetamine. The children’s live-in babysitter tested positive for methamphetamine as well. Multiple dogs resided in the home and had urinated and defecated throughout the home. Also, the kitchen sink was inoperable and smelled of mold and mildew, and the home did not contain any beds for the children. The juvenile court detained the children in May 2012 and DPSS placed them in a foster home.

B. Jurisdiction/Disposition and the Parents’ Failure to Reunify

At the jurisdiction/disposition hearing, the court sustained the allegations of the amended petition, under Welfare and Institutions Code section 300, subdivision (b),[2] that: (1) father and mother abused controlled substances, including methamphetamine; (2) the children’s home was unsafe and unsanitary; (3) the parents permitted the live-in babysitter to care for the children while she was under the influence of methamphetamine; and (4) father had an extensive criminal history. The court ordered reunification services for the parents, consisting of a domestic violence program, counseling, parenting classes, a substance abuse treatment program, a 12-step program, and random drug testing. The court also ordered psychological evaluations for both parents and supervised visits with the children twice a week for two hours.

At the six-month review hearing, the court continued the parents’ reunification services for another six months. The parents had completed their parenting classes, psychological evaluations, and six weeks of drug testing, but none of the other components of their case plan. They had progressed to one unsupervised, daylong visit per week with the children. The children seemed happy in their foster home, but regularly asked the social worker when they could return home. The court authorized unsupervised, overnight visits on the condition that the parents drug test clean and be enrolled in drug treatment programs.

During the next period of reunification services, father was arrested for assault with a deadly weapon. After he failed to appear in criminal court, the court issued a warrant for his arrest. Mother was arrested for being under the influence of a controlled substance and tested positive for methamphetamine. Neither parent had been complying with the case plan. In particular, they failed to participate in substance abuse treatment and did not appear for drug tests. They also failed to visit the children regularly and failed to keep in contact with DPSS. The children were thriving in their foster home, though they regularly asked the social worker why they could not visit with their parents. The foster mother was willing to become the legal guardians of the children.

Father had been in custody for approximately three months when he appeared at the 12-month review hearing. The court terminated both parents’ reunification services and set the matter for a selection and implementation hearing. (§ 366.26.) The court ordered DPSS to supervise visits, and it reduced visitation for both parents to twice a month. It also ordered that the children not be forced to visit father in custody if they felt uncomfortable with it, but DPSS was to try to arrange telephonic visits, if that were the case.

C. Planned Permanent Living Arrangement

When it came time for the selection and implementation hearing, in October 2013, the court vacated its order setting the hearing and ordered the children placed in a PPLA with their foster mother. The court identified legal guardianship as the eventual goal. The children were very happy living with the foster mother but did not want her to adopt them, preferring a legal guardianship instead. The foster mother loved the children and wanted them to remain in her care, but she was experiencing family problems that precluded her from becoming a legal guardian. She was hopeful her circumstances would improve and she could become their legal guardian in the future. The children had not been visiting father because the criminal court had recently sentenced him to prison, and they did not want to visit him in prison. The court continued its prior visitation orders.

D. Post-permanency Reviews

After the court placed the children in a PPLA, it held review hearings every six months. (§ 366.3, subd. (d).) In April 2014, the court reduced mother’s visits to once per month. Father and the children had weekly phone contact while he was incarcerated. The children enjoyed the phone calls. But father did not want them to visit him in prison, as he felt it was “‘not a good environment for them.’”

By May 2015, father was no longer incarcerated, and the parents were living at a motel in King City, California. By August 2015, DPSS had received information that the parents were living in Hemet, California, but they had not maintained contact with DPSS, and DPSS had no other information about their circumstances. The parents had one supervised visit a month in May and June 2015, but did not appear for their monthly visits in July and August 2015. They continued to have weekly phone contact with the children. The children expressed frustration that the parents were living in Hemet and yet had made no effort to visit in July and August. They had been with their foster mother for three years at this point and professed to love her. They referred to her as “grandma.” They were resistant to adoption or legal guardianship, however, because mother and father were telling them that they would be reunifying soon.

The parents did not visit the children through April 2016, though they had weekly phone contact until December 2015. The parents called to cancel visits in November and December 2015 with only one hour’s notice. Father tried to reschedule the December visit, but the children were unavailable because they were going to a holiday party. L.L., in particular, became upset and asked for a meeting between the social worker and all three children. At the meeting, all three children were quiet and had been crying. L.L. had spoken to father on the phone. She had told father that they could not reschedule the visit for the day he proposed. Father became upset and told her “he could not believe that a party was more important than a visit with her parents.” L.L. and father began yelling at each other, at which point the foster mother ended the call. L.L. felt “‘bad’” and B.L. said he was “‘done’ with his parents because it ha[d] been ‘four months of them doing this.’” J.L., Jr. felt “‘worried’” father was going to try to take the children from school or their foster home. The children wanted any future visits to occur at the DPSS office. They wanted no further phone calls or visits in December. The foster mother reported that, after L.L.’s call with father, B.L. cried uncontrollably while J.L., Jr. and L.L. hugged him and also cried for approximately one hour. They all wanted to time to think about what had happened, and L.L. wanted to talk to her therapist about it.

In January and February 2016, the children refused to speak to the parents when they called. L.L. asked the social worker to request a change in the court’s visitation order. L.L. had been struggling for months with the way in which the parents spoke to them. All three children did not want to visit or have phone calls with the parents. L.L. was “tired of the parents calling and yelling at them and making them feel bad.” B.L. and J.L., Jr. felt their parents were “‘rude and mean,’” and the parents continually called or sent text messages, making the children feel bad. L.L. (who was the only child in therapy at that point) was not interested in conjoint therapy with mother and father. L.L. had also contacted her attorney because she was adamant that she did not want visitation or phone contact with the parents. None of them were interested in having a relationship with mother and father at that time.

Around that same time, in January 2016, father was arrested and incarcerated for violating the terms of his parole. Father’s parole officer reported that father admitted to using methamphetamine and being homeless, and he refused to enter a residential treatment program. After father served his sentence, he and mother stayed with maternal grandmother for a short period. Maternal grandmother suspected the parents were continuing to use drugs and were engaging in domestic violence.

At the review hearing in April 2016, the court heard from each of the three children. B.L. was then 14 years old, L.L. was 13 years old, and J.L., Jr. was 11 years old. L.L. said she and her siblings got “extremely upset” and did not “want to do things that . . . normally make [them] happy” when the parents failed to appear for visits. She described how they cried and “it’s hysteria and it . . . just gets out of hand,” and then she would “lash out” at her foster mother because of “the stress and the pressure” of not knowing whether the parents would appear. L.L. felt the parents were holding the children back and preventing them from focusing on their school work, and they all wanted to earn good grades and attend a good college. She asked the court to suspend all visitation and phone calls. B.L. said he did not want to see the parents because it had “been four years,” and he was unable to concentrate on his school work with “the things that they put [him] through.” J.L., Jr. said he did not want to see the parents either: “I don’t want to see them because they don’t keep their promises when they say, ‘I’ll be there. I’ll be there,’ and they just don’t show up, and that makes me really sad, really, really sad.” The court found that further visitation would be detrimental to the children and terminated in-person visitation and phone calls with the parents. The court also authorized counseling and conjoint therapy for the children. The court noted that, if the children changed their minds and wanted visitation to resume, the children’s counsel could file a petition to do so.

The next review hearing occurred in October 2016, and the court continued it to November 2016 for a contest. At the time of this review, the children were stable. B.L. was maintaining good grades and playing on his high school football team. L.L. was a straight A student and was singing with her middle school choir. J.L., Jr. was working at grade level and progressing well. L.L.’s therapist had discharged her from therapy in June 2016, as she was no longer in need of it. B.L. and J.L., Jr. had been assessed and found not to need therapy. Father and mother requested that supervised visits resume. But the children continued to express no desire to visit or communicate with the parents. The court “ratif[ied]” its prior order that further visitation would be detrimental to the children. It kept the referrals for counseling open, in the event the children needed or desired counseling later. Father filed a notice of appeal from the court’s findings and orders at the October and November 2016 hearings, which he characterized as follows: “Court found visitation was detrimental and denied visitation.”

III. DISCUSSION

Father contends the evidence was insufficient to support the court’s order terminating visitation and the court erred when it based the order solely on the children’s wishes. We disagree.

Even after the juvenile court terminates reunification services and places children in a PPLA, it shall make an order for parental visitation unless it finds that visitation would be detrimental to the children. (§§ 366.22, subd. (a)(3), 366.26, subd. (c)(4)(C).)

“‘Detriment is a familiar standard in child welfare determinations; but, as several courts have acknowledged, the notion of detriment is at best a nebulous standard that depends on the context of the inquiry. . . . It cannot mean merely that the parent in question is less than ideal . . . . Rather, the risk of detriment must be substantial, such that [the proposed action] represents some danger to the child’s physical or emotional well-being.’” (In re A.J. (2015) 239 Cal.App.4th 154, 160.)

We review the court’s finding that visitation would be detrimental for substantial evidence. (In re A.J., supra, 239 Cal.App.4th at p. 160.)[3] We look for “evidence that is reasonable, credible and of solid value.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1401.) “[W]e consider the evidence favorably to the prevailing party and resolve all conflicts in support of the [juvenile] court’s order.” (Ibid.)

At the outset, we note that father failed to appeal the order terminating his visitation at the April 2016 review hearing. The court determined visitation was detrimental to the children at this hearing. Father had 60 days after the court rendered its order to file a notice of appeal. (§ 395, subd. (a)(1); Cal. Rules of Court, rule 8.406(a)(1); In re Daniel K. (1998) 61 Cal.App.4th 661, 667-668.) But he did not file a notice of appeal until after the next review hearing in November 2016. Because father could have appealed the April 2016 order and did not, he forfeited his right to attack it. (In re Daniel K., supra, at p. 666.)

Father instead appeals from the court’s orders at the October and November 2016 review hearings. The court did not make a detriment finding or deny visitation at the October hearing. At the November hearing, the parents orally requested that supervised visits resume,[4] and the court ratified its prior order, stating: “I did read the reports that were submitted on this matter, including the addendum. Based on what I read there, I would ratify the prior order and find that the evidence does support, continues to support a finding that further visitation at this time would be detrimental to the children.” Assuming without deciding that this ratification revived the prior detriment determination for our review, we will address the merits of father’s argument.

The court had substantial evidence demonstrating visitation was detrimental to the children’s emotional well-being. The parents’ repeated failure to appear for their scheduled visits was upsetting the children so much that they cried, did not want to do things that normally made them happy, lost focus on their school work, and in L.L.’s case, lashed out at the foster mother. Even when phone calls with father did occur, he was upsetting the children or making them feel bad. In one instance, he yelled at L.L. and inappropriately blamed her and her siblings for the visit not occurring. L.L. was tired of the parents making them feel bad, and her brothers felt the parents were rude and mean to them. At the same time the parents had been failing to appear for visits, they were telling the children that the family would reunify soon, even though the court had terminated reunification services long before, and there was no indication the parents had made progress in treating their substance abuse issues. In other words, the parents were giving the children false hope. This was preventing them from desiring a more permanent arrangement—like a legal guardianship—with their foster mother, whom they nevertheless loved. And, to the extent the parents’ behavior was a symptom of their drug abuse, the evidence showed they continued to use. Father violated his parole by, among other things, using methamphetamine, and maternal grandmother suspected the parents were using when they stayed with her around this same time. In short, the evidence showed the emotional distress that the father was causing the children was detrimental to them and justified the court’s order terminating his visitation rights.

Father contends the court could not “generally refer to the children’s wishes” in terminating visitation. We are not persuaded by this argument. The court did not merely agree to the children’s wishes with no deliberation of its own. The fact is the children were old enough to articulately express how the parents’ behavior impacted them. Their statements to the social worker and the court constituted direct evidence of their emotional distress. We have no doubt the court could consider such evidence, and the cases on which father relies do not convince us otherwise.

As father observes, the juvenile court has the sole power to grant or deny visitation, and it may not delegate this power to DPSS or the children. (In re S.H. (2003) 111 Cal.App.4th 310, 318; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) Thus, when the court orders visitation to occur, it may not grant the children a de facto veto power by authorizing them to refuse visits. (In re S.H., supra, at pp. 318-319.) Such an order delegates authority to the children to determine whether visits occur and renders the court’s order for visitation illusory, if the children have “the practical ability to forestall any visits at all.” (Id. at p. 319.) Delegating this judicial power to a third party abdicates the court’s governmental responsibility. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.)

Father mischaracterizes the court’s order as delegating the authority to determine whether visits occur to the children. In fact, the opposite occurred. The court considered the evidence and exercised its own judgment to deny visitation. It did not determine the parents were entitled to visitation yet leave it to the children to exercise a de facto veto power. The thrust of the cases father cites is that the court—not the children or some other party—must “define the rights of the parents to see the children.” (In re Julie M., supra, 69 Cal.App.4th at p. 49.) The court did this and did not abdicate its responsibility.

Father also suggests the court could not terminate visitation without first attempting monitored therapeutic visitation or conjoint counseling. He appeals to the goal of the dependency system to strengthen and preserve family ties (§ 202, subd. (a)) and the statutory requirement that visitation be “as frequent as possible, consistent with the well-being of the child” (§ 362.1, subd. (a)(1)(A)). We also find this argument unpersuasive. To be sure, one goal of the dependency system is to strengthen and preserve family ties “whenever possible,” but another goal “is to provide for the protection and safety of . . . each minor.” (§ 202, subd. (a).) The focus is always on the well-being of the children, and preserving family ties may be pursued only when consistent with the children’s welfare. (In re Joseph B. (1996) 42 Cal.App.4th 890, 900.) That is why the statutory scheme requires visitation as frequently as possible during the reunification period, but only so long as it is not harmful to the children. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) Moreover, when, as here, the case is well beyond the reunification stage, the parents’ interest in the care, custody, and companionship of their children is not paramount, and the court should focus on the children’s need for permanency and stability (In re Stephanie M., supra, 7 Cal.4th at p. 317)—including emotional stability. The statutory scheme required only that the court find visitation detrimental to suspend it. It did not require that the court try monitored therapeutic visitation or conjoint counseling.

Father additionally argues the evidence was insufficient because the children had negative responses only when visits did not occur—that is, it was not visitation upsetting them, but the lack of visitation. First, this is not entirely accurate. The phone calls with father occurred and distressed the children, particularly when he yelled at L.L. and blamed the children for the missed visit. Second, while the parents’ failure to visit did upset the children, their distress occurred precisely because they expected the parents to exercise their visitation rights under the court’s order. But the court could not force father to appear for visits. The evidence indicated a continued order for visitation would only result in more disappointed expectations and emotional distress for the children. The court was entitled to protect the children from that by finding that an order for visitation was detrimental.

Finally, father compares this case to In re D.B. (2013) 217 Cal.App.4th 1080, in which the court found visitation detrimental because of “abundant” evidence of “negative responses” to visitation, including “instances of acting out, loss of bowel control, and aggressiveness at home and in school.” (Id. at p. 1093.) He argues the evidence of detriment is not as obvious or severe here. This may be true, but In re D.B. did not purport to define what sort of evidence was necessary to show detriment in all cases. The question is inherently fact intensive, and the evidence will vary on a case-by-case basis. The question for us is whether substantial evidence supported the court’s determination, and it did.

IV. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.