Filed 2/20/18 In re J.J. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re J. J., a Person Coming Under the Juvenile Court Law.

SAN FRANCISCO HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
S. F.,
Defendant and Appellant.




A151326

(San Francisco County
Super. Ct. No. JD16-3257)


Appellant S. F. (Mother) contends the trial court erred in denying her a contested hearing before reducing visitation with her daughter, J. J. (Minor). Because Mother has not shown any error was prejudicial, the claim fails.
BACKGROUND
In August 2016, respondent San Francisco Human Services Agency (Agency) filed a Welfare and Institutions Code section 300 petition as to Minor, born September 2012. The petition alleged Mother allowed Minor and one of Minor’s older siblings to be present during a fight and placed into a stolen car without a car seat or proper restraints; the car was then involved in a high speed chase with police and crashed, causing injuries to Minor including a broken nose and lacerations.
The Agency’s detention report provided further details of the incident. Mother had been with her friend, her sister, Minor, and the sibling in a parking lot in Oakland,
when the adults got into a physical fight with the sister’s boyfriend. When police arrived, Mother walked away and her sister and friend took the children into a stolen car driven by a stranger, who led police on a high-speed chase with the children in the car. The car crashed into two vehicles, including a police vehicle, and flipped under a cement truck. Minor was taken to the hospital and her sibling suffered severe injuries.
The Agency’s September 2016 Jurisdiction/Disposition report recommended that
Minor be declared a dependent and that Mother be bypassed for reunification services under section 361.5, subdivision (b)(10). The report set forth the details of Mother’s fight and the car crash that injured Minor. It also disclosed that Mother was not supposed to have Minor’s sibling in her care at the time; the sibling was out of Mother’s custody due to Mother’s failure to reunify with her in prior dependency proceedings, but the sibling’s guardian had allowed her to visit with her father, who improperly let her visit unsupervised with Mother.
The September 2016 report also set forth Mother’s “extensive child welfare history.” Mother had failed to reunify with four of Minor’s siblings (including the one involved in the car crash), and reunification services were terminated by the court in April 2011. A 2009 status report advised of a psychological evaluation indicating that
Mother displayed signs of depression, evidence of anxiety disorder, and symptoms related to a personality disorder, including “high anger, irritability, uncooperativeness,
externalization of blame, and poor insight.” In the present case, Mother denied suffering from any mental health issue and claimed she did not benefit from therapy. The social worker noted, however, that Mother had failed to participate consistently in therapy and continued to appear depressed and unable to manage her emotions. Mother was having trouble finding housing and employment, and she had “failed to implement the tools that she learned with regards to ensuring her children’s safety.”
At the time of the September 2016 report, Mother had supervised visits with Minor twice a week. Minor’s foster mother reported that Minor had “a very difficult time transitioning back to the normal routine” after visits with Mother.
In October 2016, the juvenile court found true the allegations of an amended petition and continued the matter for a contested dispositional hearing. After that hearing in November, the court declared Minor a dependent, removed her from Mother’s custody, and bypassed reunification services under section 361.5, subdivision (b)(10). The court also set a section 366.26 hearing for March 2017. This court denied Mother’s petition challenging the bypass of reunification services. (S.F. v. Superior Court (Feb. 27, 2017, A149933) [nonpub. opn.].)
The Agency’s report for the section 366.26 hearing recommended that Minor remain in foster care with a permanent plan of legal guardianship. Minor’s maternal grandfather was in the placement approval process. The report stated, “[Minor] has a strong bond with [Mother]. . . . She is always happy and looks forward to visiting with [Mother].” Minor’s foster mother continued to report that Minor had a difficult time transitioning back after visits with Mother.
In a May 15, 2017, addendum report, prior to the continued section 366.26 hearing, the Agency recommended that Mother’s visits be reduced to once a month, because “it is confusing for [Minor] to see [Mother] twice a week if there is no reunification plan.” Also, Mother “smells strongly of marijuana when she visits,” and she continued to bring sugary snacks and drinks despite repeated requests that she bring healthy snacks. Mother alleged Minor was being physically abused and underfed in her foster home, but Minor reported she felt safe and had enough to eat. Minor did not appear malnourished, and there were no signs of physical abuse.
At the May 16, 2017, section 366.26 hearing, Mother’s counsel opposed the reduction to monthly visitation, and requested a contested hearing on the issue. She argued that Minor “enjoys her visits very much with [M]other and often cries at the end of the visits . . . .” Minor’s counsel supported the Agency’s recommendation on visitation. She said, “I don’t see any reason for the Agency to support [Mother] in moving her out to visit [Minor] twice a week. I think it’s not in the best interest of the child, who has behavioral issues in the home often afterwards. And [Mother] continues to try to sabotage the placement . . . . [¶] So I think it is . . . bad for the child to be visiting with [Mother] as frequently as she is, although I would like to see [the visits] tapered off.”
The juvenile court ordered that Minor remain in her foster care placement with a
permanent plan of legal guardianship. The court set a six-month review hearing for November. The court ordered an incremental decrease in visitation, to once a week for one month, then twice a month for one month, and then to monthly visits thereafter.
This appeal followed.
DISCUSSION
Mother contends the juvenile court violated her right to due process by reducing her visits from twice-weekly to monthly, without conducting a contested hearing on the issue. The claim fails.
“ ‘There is no question but that the power to regulate visitation between minors determined to be dependent children [citation] and their parents rests in the judiciary.’ [Citation.] As such, dependency law affords the juvenile court great discretion in deciding issues relating to parent-child visitation, which discretion we will not disturb on appeal unless the juvenile court has exceeded the bounds of reason.” (In re S.H. (2011) 197 Cal.App.4th 1542, 1557–1558.) Section 366.26, subdivision (c)(4)(C) provides that where a juvenile court adopts a permanent plan of foster care or legal guardianship at a section 366.26 hearing, the court “shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (See also In re S.H., at p. 1558.) However, no finding of detriment is required to support a “reduction in the frequency of visitation.” (In re S.H., at p. 1558.) Neither is the juvenile court obligated to order visitation “ ‘as frequent[ly] as possible, consistent with the well-being of the child.’ ” (Ibid., quoting § 362.1, subd. (a).) That is because after termination or bypass of reunification services “ ‘the parents’ interest in the care, custody and companionship of the child [is] no longer paramount . . . [and] “the focus shifts to the needs of the child for permanency and stability.” ’ [Citations.] Accordingly, the court must turn its focus to the child’s best interest, rather than the parent’s, in deciding issues that may arise.” (In re S.H., at p. 1559.)
Mother argues in passing that the order reducing visitation was an abuse of
discretion. The point requires little discussion. The information in the Agency’s report clearly provided sufficient support for the juvenile court’s order. Mother suggests the court reduced visitation solely because Mother expressed concern about the treatment of Minor by the foster parents. The record shows those accusations were meritless and there were also concerns about aspects of Mother’s conduct during visits. But the fundamental reason for the reduction in visitation was that it was confusing for Minor to visit so much with Mother where the dependency proceeding was not moving towards reunification. (See In re J.N. (2006) 138 Cal.App.4th 450, 458–459 [“visitation is not integral to the overall plan when the parent is not participating in the reunification efforts”].) The juvenile court did not abuse its discretion.
Mother’s primary contention on appeal is that it was a violation of Mother’s right to due process to reduce visitation without a contested hearing. She contends she had an absolute right to a contested hearing because the Agency bore the burden of proof on its recommendation of reduced visitation. The Agency appears to argue the juvenile court properly required Mother to make an adequate offer of proof before conducting an evidentiary hearing. “The determination of whether a party must tender an offer of proof to justify a contested hearing turns upon who bears the burden of proof. ‘A party cannot be required to make an offer of proof for a contested hearing if what the party wants to contest is a finding or issue on which a different party, such as the social services agency, has the burden of proof. A party can be required to make an offer of proof if the issue is one on which that party has the burden of proof.” (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1180.) The parties present no direct authority regarding which party bore the burden of proof. Appellant argues the Agency bore the burden of showing reduction of visitation was in Minor’s best interests, apparently because the Agency was the party seeking the change. The Agency appears to argue neither party bore the burden of proof on the frequency of visitation; instead, the issue was simply a matter left to the discretion of the court.
We need not decide whether the juvenile court could require an offer of proof because, even if Mother had a right to a contested hearing, she has not shown denial of the hearing was prejudicial. “ ‘The standard of review where a parent is deprived of a due process right is whether the error was harmless beyond a reasonable doubt.’ ” (M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 1182.) Mother’s appellate argument on prejudice is misplaced. She argues reduction in visitation was prejudicial because it “handicapped [M]other’s ability to preserve her strong bond with [Minor], to successfully argue for her return or reunification, services at the coming section 366.3 review hearing and under section 388 petition for modification, or establish the parental benefit exception if a section 366.26 hearing is set in the future.” But Mother does not explain why the juvenile court might have decided to continue frequent visitation had it conducted a contested hearing. As the Agency points out, the court was already aware from the reports that Mother and Minor shared a close bond and that Minor often cried at the end of visits. Mother does not explain why additional testimony on that issue would have been material. Neither does Mother suggest she could have presented evidence that her accusations against the foster family were valid. Finally, Mother fails to address the central justification for reducing the frequency of visitation: the confusion it caused in light of the fact that the dependency proceeding was not moving towards reunification. Thus, Mother has not shown any error in denying a contested hearing was prejudicial. (See M.T., at p. 1182 [“There is nothing in the record to indicate that petitioner had any grounds to contest the Department’s recommendation to set older sister’s and younger sister’s cases for a section 366.26 hearing.”]; cf. In re Thomas R. (2006) 145 Cal.App.4th 726, 734 [deprivation of contested hearing not harmless where record showed reason to question likelihood of adoption].)
DISPOSITION
The juvenile court’s orders are affirmed.








SIMONS, J.



We concur.




JONES, P.J.




NEEDHAM, J.