In re Jazmine B.
Filed 5/22/13 In
re Jazmine B. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re JAZMINE B., a Person
Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Plaintiff and
Respondent,
v.
DARRYL B.,
Defendant and
Appellant.
F065372
(Super.
Ct. No. 09CEJ300105)
THE COURT
name="_ftnref1" title="">*
APPEAL from
an order of the Superior Court of
County. Mary Dolas, Commissioner.
Konrad S.
Lee, under appointment by the Court of Appeal, for Plaintiff and Respondent.
Kevin Briggs,
County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and
Respondent.
-ooOoo-
Darryl B.
(father) appeals from a visitation order made at a six-month review hearing,
which gave him twice yearly visitation with his two-year-old daughter, Jazmine,
who is a dependent under Welfare and Institutions Code section 300, subdivision
(b).
was incarcerated in a federal facility in Bakersfield, contends the
limiting visitation to twice per year.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father, his wife Angelina B.
(mother), and their then 19-month-old daughter, Jazmine, came to the attention
of Fresno County Department of Children
and Family Services (Department) in June 2011, when mother sought help from
a women’s shelter due to domestic violence.
At the time, mother was living with father and Jazmine in Fresno. The couple had known each other for three to
four years, and had been married for one year.
Mother described father as “very threatening†in appearance; he is six
feet, four inches tall, weighs almost 290 pounds and has a number of tattoos on
his face, including his forehead, cheeks, upper lip, chin and eyebrows. Mother, who had scars around her eyes that
appeared to be a week old and bruises on both arms, said she was fearful of
father and that he both physically and sexually assaulted her. The women’s shelter did not have a room for
mother; mother was told to return the next day.
In the
following days, the Department helped mother and Jazmine move from their home
into the women’s shelter. Father was at
the home when the social workers came to assist mother; he was uncooperative,
angry with the social workers, and upset that mother had asked for assistance
to leave. Mother said father, who had
been drinking alcohol and smoking marijuana, was verbally harassing her. Father rolled a marijuana joint in the
presence of the social workers and refused to answer questions. Jazmine appeared to be well cared for and did
not have any visible marks or bruises.
Mother admitted that Jazmine had been exposed to yelling and domestic
violence between herself and father.
After moving into the women’s
shelter, mother filed for divorce and obtained a temporary restraining order
against father; he was to be evicted from the home. Father, however, refused to leave; he said he
had a medical marijuana card and needed to stay at the home so he could guard
his marijuana plants. He denied having a
substance abuse problem or mental illness.
He claimed mother was the perpetrator of domestic violence, sometimes in
front of Jazmine.
At a team
decision meeting on July 7, 2011, mother reported she did not plan to reconcile
with father, as he had become more abusive towards her; she said father drank
and smoked marijuana daily. Mother, who
had been diagnosed with schizophrenia, had been assessed for mental health
services; she needed services, but the waiting list was long. Since the family was in need of court-ordered
services, it was decided that the Department would file a dependency petition
on Jazmine’s behalf and seek family maintenance services for mother and
that day; he complained that the Department was brain washing mother and trying
to break up his family. He admitted
daily alcohol and marijuana use, but said he would stop smoking marijuana if he
had to. He denied abusing mother or that
there had been any domestic violence between them. Father said he would like to visit with
Jazmine, but was told visits may not be possible due to the restraining
order. Father completed an addiction
severity index with a substance abuse specialist, who recommended a less
intensive outpatient substance abuse program.
Father was referred to Central California Recovery. During that assessment, father admitted have
been diagnosed with schizophrenia,
and he is often stressed out and hears voices.
On July 12,
2011, the Department filed a dependency petition alleging that Jazmine came
within the provisions of section 300, subdivision (b), based on father’s
substance abuse and the domestic violence between mother and father. A permanent restraining order issued on July
13, 2011, which prohibited father from contacting mother and ordered him to
move out of the family’s home within 10 days.
Mother and Jazmine moved back into the home on July 25, 2011. That same day, mother called police because
father came to the home while intoxicated.
Father was arrested. On July 27,
father was found living in a small shed in the back yard of the family home;
mother said she was not aware father was sleeping there. Father again was arrested. Mother was providing adequate care for
Jazmine, and the home was neat, clean and orderly, with an adequate supply of
food.
By the end
of August, Jazmine remained in mother’s care.
She was up-to-date on her immunizations and was developmentally on
target, but she was not talking. The
Department requested a Central Valley Regional Center (CVRC) assessment. On August 22, 2011, the juvenile court
ordered that father receive at least twice weekly supervised visits with
Jazmine.
At the November 2, 2011
jurisdictional hearing, the juvenile court found true amended allegations of
the petition pertaining only to the domestic violence allegations after mother and father submitted on the
social worker’s reports. At the December
12, 2011 dispositional hearing, the juvenile court adjudged Jazmine a
dependent, ordered her to remain placed with mother with the provision of
family maintenance services, removed Jazmine from father’s custody and gave
father reunification services, including reasonable supervised visitation.
Father had been in and out of
custody at the Fresno County jail since July 2011. On January 23, 2012, he was arrested on federal
weapons charges. There were two
restraining orders keeping father away from mother, one was to expire on July
13, 2014 and the other on November 19, 2014.
According to mother, father wrote her letters from jail, which she
promptly reported to the police, as they violated the restraining orders.
In December 2011, CVRC determined
Jazmine was eligible for early intervention services due to a significant
expressive language delay. As of
February 2012, Jazmine was receiving services for her speech delay at
Exceptional Parents Unlimited (EPU), and was to begin speech therapy. Mother was seeing her psychiatrist to manage
her schizophrenia symptoms and medication, and participating in services.
In a report prepared for the
six-month review hearing, the Department recommended mother continue to receive
family maintenance services, and father’s reunification services and visitation
be terminated. By March 2012, father had
been transferred to the Lerdo Federal Holding Facility in Bakersfield. He had continued to contact mother via
letters, in violation of the restraining orders. Mother reported all instances of contact to
the police. Prior to his arrest, father
had not made substantial progress on his reunification services.
The Department reported that while
the court ordered father receive reasonable supervised visits, visits were not
scheduled because he failed to maintain regular contact with the Department,
presumably because he was in and out of custody. At the February 27, 2012, post-disposition
mediation hearing, the Department was ordered to follow up on visits after
father requested them while in custody at the Fresno County jail. The Department, however, did not arrange
visits because father was transferred to the federal holding facility in Bakersfield
on March 13, 2012.
The Department recommended the
court not order any visitation between Jazmine and father, as visitation would
be detrimental to her emotional well-being.
The Department explained the detriment as follows: Jazmine had not seen father since July 2011;
father was incarcerated in Bakersfield; because mother was not able to
facilitate visits, Jazmine would need to be transported by Department drivers
who she does not know; and Jazmine’s young age coupled with her lack of a
current relationship with father, the long transport to Bakersfield by unknown
persons, and the prison environment were not conducive to supporting Jazmine’s
emotional well-being. The Department
reported that father would like to receive photographs of Jazmine.
At the June 27, 2012, six-month
review hearing, the Department, mother and Jazmine’s attorney all submitted on
the report and recommendation.
name="_ftnref3" title="">[2] Father’s attorney had spoken with father, who
was not present at the hearing as he remained in custody at the Lerdo facility;
he decided to withdraw any contest to termination of his reunification
services. Although father objected to
the termination of reunification services, he presented no additional evidence
or witnesses on the issue. Father’s
attorney also objected to termination of visitation, as the Department did not
comply with the visitation order when father was in local custody and the
distance to Bakersfield was not so prohibitive as to be detrimental to
Jazmine. The attorney confirmed that
visitation was permitted at the Lerdo facility, although she did not know if
contact was allowed during visits. The
attorney asked the court to order visitation, as father was very interested in
seeing his daughter; father was concerned that if he did not receive visitation,
he would not have any idea of her well-being, whereabouts, or what was
happening with her. He was looking at a
period of time of incarceration and was very concerned with how she was doing. At the very least, he wanted to receive
information as to how she was doing and her general well-being.
County counsel pointed out the
Department recommended no visits and reiterated the Department’s position as
set forth in the social worker’s report.
County counsel agreed the Department could provide father with
information about Jazmine. Jazmine’s
attorney was opposed to visits due to Jazmine’s tender years and the length of
time it generally takes to get into prison for a visit. The attorney did not see the benefit to
Jazmine or her relationship with father.
Mother’s attorney also objected to visitation.
After all parties submitted, the
juvenile court continued dependency jurisdiction and family maintenance
services for mother, but terminated father’s reunification services. The court agreed with father’s attorney that
the Department had not shown any detriment as to visits between father and
Jazmine. The court noted the only
restraining order it had viewed was one restraining contact between father and
mother. Accordingly, the court ordered
twice yearly supervised visits. The
court explained that mother could accompany any driver to the facility where
father was staying, and while she could not enter the facility with Jazmine,
father was entitled to have visits and he did not lose that right because he
was incarcerated. The court noted there
were no specifics as to any detriment Jazmine would suffer, and if the
Department was aware of any detriment, it could file a section 388 petition and
ask that visits be suspended. The court
set a status review hearing for December 19, 2012, and a family maintenance
review for September 12, 2012. Father’s
attorney then stated she neglected to request that father receive pictures of
Jazmine at least every six months. The
court ordered that father be provided any photos and updated information once
per year, and concluded the hearing.
DISCUSSION
Father
contends the juvenile court abused its discretion when, after finding prison
visitation would not be detrimental to Jazmine, it ordered only two visits per
year. Father asserts the juvenile court
should have ordered more frequent visitation, as he “was in prison less than
two hours away and the child was only two years old, virtually ensur[ing] the
erosion of the father/daughter relationship.â€
The
Department contends that father has forfeited the right to raise this issue
because he failed to object when the juvenile court set visitation at twice per
year. We agree. “An
appellate court ordinarily will not consider challenges based on procedural
defects or erroneous rulings where an objection could have been but was not
made in the trial court.
[Citation.] Dependency cases are
not exempt from this forfeiture doctrine.
[Citations.] The purpose of the
forfeiture rule is to encourage parties to bring errors to the attention of the
juvenile court so that they may be corrected.
[Citation.] Although forfeiture
is not automatic, and the appellate court has discretion to excuse a party’s
failure to properly raise an issue in a timely fashion [citation], in dependency
proceedings, where the well-being of the child and stability of placement is of
paramount importance, that discretion ‘should be exercised rarely and only in
cases presenting an important legal issue.’â€
(In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Father urges us to exercise our
discretion to consider the issue, citing In
re N.S., supra, 97 Cal.App.4th at
p. 171, fn. 3, in which the Court of Appeal noted, after finding the father did
not waive his right to challenge jurisdiction on appeal, that it had discretion
to hear waived issues, and Lopez
v. McMahon (1988) 205 Cal.App.3d 1510, 1520-1521, in which the Court of
Appeal elected to consider a constitutional issue raised for the first time on
appeal which involved “a matter of great significance.†The present case, however, does not involve a
constitutional question or a matter of great significance.
Even were we to consider the issue,
however, father has not shown any error.
Visitation orders are reviewed for abuse of discretion. (In re
Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) There was no abuse of discretion in limiting
father’s visitation to twice per year where the evidence showed: father was
incarcerated in Bakersfield; the Department would have to transport Jazmine,
who was then two years and seven months old, from Fresno to Bakersfield; and
father did not have a relationship with Jazmine.
Father contends the juvenile court
abused its discretion because the twice yearly visits meant he would not be
able to maintain a bond with Jazmine.
There was no evidence, however, that he and Jazmine shared a bond. Although father asserts the visitation order
prevents him from developing a relationship with Jazmine, he fails to show how
more frequent visits in prison would allow him to develop a bond with a child
who had significant delays with expressive language and he had not seen for
nearly a year. Significantly, when
father’s attorney asked the juvenile court to provide father with visitation,
she did not ask for visits so that father could develop or maintain a bond with
Jazmine; instead, she asked for visits because father was concerned about
Jazmine and wanted to see her. On this
record, we cannot say the juvenile court abused its discretion in limiting
father’s visitation.
DISPOSITION
The juvenile court’s June 27, 2012
visitation order is affirmed.
Peña, J.
Welfare and Institutions Code.
