In re Edward W.
Filed 11/8/13 In re Edward W. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re EDWARD W., a Person
Coming Under the Juvenile Court Law.
B246620
(Los Angeles
County
Super. Ct.
No. CK88238)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
WESLEY B.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Donna Levin, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
William
Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and Tracey F. Dodds, Deputy
County Counsel for Plaintiff and Respondent.
The
juvenile court placed Edward W. in a legal guardianship with paternal
relatives, and ordered monitored, once-a-month visits for his father, Wesley B.
(father). Father appeals that order,
contending the juvenile court erred in ordering monitored rather than
unmonitored visits. We see no error, and
affirm the order.
FACTUAL AND
PROCEDURAL BACKGROUND
Father and
Kathleen B. (mother) are the parents of Edward W., born March 1998. In 2006, while father was incarcerated,
mother voluntarily relinquished custody of Edward to his paternal grandmother
because she could not provide him with the necessities of life.
On May 30, 2011, Edward reported his paternal
aunt hit him with a garden hoe. He
called his father to pick him up from his grandmother’s house. When father arrived, he was confronted by
Edward’s adult half-brother, Kyle, and two other men. Father struck Kyle, who then required medical
attention.
Based on
the foregoing events, the Department of
Children and Family Services (DCFS) filed a Welfare and Institutions Code
dependent of the court on August 4, 2011, based on sustained allegations that
mother had made an inappropriate plan for Edward’s care by placing him in the
home of his paternal grandmother, where his paternal aunt possessed and used
illicit drugs in his presence and struck him with a garden hoe, and that father
had exposed Edward to a violent altercation and had a history of substance
abuse which periodically rendered him incapable of caring for his son. The court ordered the child to remain as
placed with his paternal cousin and her husband, with whom he had been living
since the dependency proceedings commenced.
The court ordered father to participate in a drug program with
aftercare, on-demand drug testing, a parenting program, and conjoint counseling
with Edward. The court also ordered
monitored visits for father
At the
six-month review hearing on March 29,
2012, father requested his visitation be changed to
unmonitored. Edward also asked that the
visits be unmonitored. DCFS objected,
noting that he failed to submit to drug tests 14 times for DCFS and had not
completed his drug program. The court
ordered unmonitored once-a-week visits for father.
In its July 26, 2012 report, DCFS reported
Edward was doing well in his placement and in school. The parents visited about once a month, and
kept in touch by phone and text message.
The parents had “argued greatly†in front of Edward on his middle school
graduation day, interfering with his planned celebration. Father’s arguments with his son often
devolved into shouted profanities.
The
12-month review report also indicated Edward was in counseling, and his
therapist reported a significant reduction in his anxiety levels. He was smiling, laughing, and was able to
joke with others. The therapist
recommended Edward remain as placed with his cousin. Edward also reported to his therapist that
his conversations with his parents had not gone well, and that they continued
to blame him for things that happened in the home. He did not trust his parents to follow
through with their promises. DCFS
recommended the juvenile court terminate reunification services.
At the
12-month review hearing held on August
31, 2012, the juvenile court terminated reunification services for
the parents. The court found that
visitation with both parents was physically, mentally and emotionally
detrimental to the child, and terminated the parents’ visits. The court set the matter for a selection and
implementation hearing.
Edward’s
caretakers recognized that he still had a relationship with his parents and, therefore, preferred legal guardianship over
adoption. They wanted to provide Edward
with stability, but did not want to replace his parents. Thus, legal guardianship was chosen as the
permanent plan at the section 366.26 hearing held on December 28, 2012. Edward’s attorney told the court that the
child desired unmonitored visits with father.
The court did not believe it would be safe for Edward to have
unmonitored visits, and was prepared to set the matter for a contested hearing,
but Edward wanted the guardianship finalized and was willing to submit on the
order for monitored visitation.
The
juvenile court instructed the legal guardians that father was to have at least
one hour of monitored visits per month.
The court stated, “[I]f you think it is safe for Edward to have an
overnight monitored visit with his father, that can be arranged, or anything
that you think is safe.†The legal guardianship was granted,
and juvenile court jurisdiction was terminated.
DISCUSSION
Father’s sole challenge to the
juvenile court orders is the proviso that his visits with Edward be
monitored. A visitation order is
reviewed for abuse of discretion. (
Cal.App.4th 285, 300.) “The
appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’†(In re
Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here,
the juvenile court took jurisdiction of Edward because it found he was at risk
of suffering physical harm due to father’s violent altercation with the
minor’s half-brother and father’s history of substance abuse. The court ordered father to participate in a
drug and rehabilitation program with aftercare, to participate in 12-step
meetings, and to drug test. Father did
not complete his drug program during the pendency of these proceedings, and the
court noted his compliance had been “minimal/moderate.†Because “the parents [had] not consistently
and regularly visited the child and [had] not made significant progress in
resolving the issues that led to his removal, and [had] not demonstrated the
capacity and ability to complete the objectives of the treatment plan and
provide for the child’s safety, protection, physical and emotional health and
special needs,†the court terminated reunification services on August 31,
2012. At that time, the court also found
that “visitation with both parents [was] detrimental to the child, both
physically, mentally and emotionally detrimental†and ordered visitation
terminated. Father did not file a writ
petition seeking review of those findings.
Four months
later, when the guardianship was put in place, the court ordered father be
permitted once-a-month monitored visits.
No new evidence was offered to suggest that the findings made by the
court in August were no longer accurate.
Indeed, when the juvenile court indicated that it would continue the
hearing in order to hear such evidence, the minor’s counsel reported that
Edward “would like to have the case closed today in guardianship, so he’s
willing to submit on the monitored visits.â€
Father did not object.
Father
cites an opinion, In re Brittany C.
(2011) 191 Cal.App.4th 1343, in which the appellate court affirmed the juvenile
court’s order denying all visitation to argue that the court here erred in
limiting him to monitored visits. He
states, “Like in Brittany C., the
issue in the instant case is the effect of the court’s order limiting
[father’s] visits to supervised. The
order here is akin to denying [father] a certain quality of visitation that is
needed to support his longstanding, bonded relationship with his
son. . . . The court’s
order limiting visitation would severely curtail their contact and limit any
progress of the father-son relationship.â€
First, we
fail to see how an appellate opinion upholding
the juvenile court’s order denying
father’s appeal. Father cites no cases
in which the appellate court reversed
the juvenile court when, following termination of reunification services, it
visits.
Moreover,
father appears to misunderstand the issue before the juvenile court in
fashioning its visitation order, and his burden on appeal. First, unlike In re Brittany C., in which reunifications
efforts were ongoing, here reunification services had been terminated, and the
sole concern of the juvenile court was Edward’s best interests. Thus, the court could entertain no concern
about providing father with “a certain quality of visitation;†it instead could
be guided solely by its determination of Edward’s best interests. Second, while father articulates multiple
grounds in support of his request for unmonitored visitation, he cannot
establish that the court’s determination – that Edward’s best interests
required father’s visits to be monitored visits – was outside the bounds of
reason. Father had exposed Edward to
violence in the past, was not participating in a drug program, and engaged in
arguments with his son in which he hurled profanities and blamed the child for
the family’s problems. The juvenile
court acted well within its discretion in refusing to liberalize father’s
visitation rights when it granted guardianship of Edward to his relatives.
DISPOSITION
The order
is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
MOSK,
Acting P. J.
KRIEGLER,
J.
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Undesignated
statutory references are to the Welfare and Institutions Code.
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
