In re N.A.











Filed 3/22/17 In re N.A. CA1/4





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR


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


HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
S.A.,
Defendant and Appellant.

A147706

(Humboldt County
Super. Ct. No. JV090143)


Steven A., the presumed father (Father) of the minor N.A. (Minor) appeals from the juvenile court’s order during a post-permanency plan review hearing (Welf. & Inst. Code, § 366.3)[1]reducing the frequency of his visitation with Minor.[2] He contends the juvenile court abuseditsdiscretion. We shall affirm the order.
I. BACKGROUND[3]
A. Initial Dependency Proceedings (2009-2011)
Minor was the subject of a dependency petition filed on October 1, 2009, when he was two years old. The petition alleged that Minor was at substantial risk of serious physical harm because Mother and Father abused controlled substances andhad engaged in domestic violence altercations in his presence, and Mother had abused or neglected an olderhalf-sibling, C.K.[4](Welf. & Inst. Code, § 300, subds. (b), (j).)
Father was elevated to presumed father status at the initial hearing in October 2009. In January 2010, he was identified as an enrolled member of the Yurok Tribe (the Tribe), making Minor eligible for membership in theTribe,[5]and triggering the requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
At the jurisdictional hearing, on January 28, 2010, the juvenile court found Minor to be a dependent of the court, and allowed him to continue residing with Mother. A few weeks later, on March 5, 2010, however, Humboldt County Department of Health and Human Services, Child Welfare Services Division (Department) filed a subsequent petition (Welf. & Inst. Code, § 342), advising the court that Minor twice had been found unsupervised in the parking lot of the hotel where Mother then was residing. On the second occasion, Minor, then only three years old,had been able to enter Mother’s car, and turn the ignition to the start position, causing the carto roll down the parking lot, and injure another child.
The Department detained Minor after thesecond incident, placing him in foster care. The juvenile court subsequently ordered parental visitation, and notified the Tribe of the dependency proceedings. The Tribe was consulted regarding Minor’s placement, and intervened in the dependency proceedings.
At the dispositional hearing in June 2010, the juvenile court removed Minor from his parents’ custody,concluding they had failed to supervise or protect him adequately, and had made only minimal progress toward alleviating or mitigating the causes necessitating its intervention. Minor was declared to be a dependent of the court and reunification services were ordered for both parents.
During the next 12 months, Father repeatedly was arrested and incarcerated, and made inconsistent progress towards the goals stated in his case plan. By May 2011, Father was making no progress, and did not appear for the status review hearing. Accordingly, with the Tribe’s agreement, the juvenile court terminated reunification services, and scheduled a permanency planning hearing pursuant to section 366.26.
At the permanency planning hearing, in November 2011, the juvenile court declined to terminate parental rights because it found that Minor was an Indian child,and that termination of parental rights would substantially interfere with Minor’s connection to his tribal community and his membership rights. The Tribe had also identified guardianship as the permanent plan for Minor. On the Department’s recommendation, with the Tribe’s concurrence, the juvenile court adopted a permanent plan for Minor of legal guardianshipwith the goal,ultimately, of terminating his dependency status. The court appointed the foster parents who had cared for Minor since his initial detention as his legal guardians, and granted Father monthly supervised visitation with Minor for one hour.
B. Post-Permanency Planning (2011-2015)
Minor remained a dependent of the courtwith continued placement in the home of his legal guardians for the next four years, with the dependency case remaining open, primarilyat the Tribe’s recommendation, to ensure Minorremained connected to his culture and continued receiving helpful services. During this period, Minor experienced ongoing behavioral issues, which appeared to escalate over time. The social worker described the months before the hearing that is the subject of this appealas particularly “rough,” because Minor increasingly was experiencing“meltdowns,” involving tantrums, screaming, and hitting, and once threatened to hurt his half-brother, C.K., with a knife.
In October 2012, Minor’s guardians reported that Minor’s behavior deteriorated after they adopted C.K., that Minor felt left out because he could not be adopted. Minor was worried he would be sent away, and had expressed the desire to take his guardian’s last name. The same month, Minor—then five years old—appeared in juvenile court to tell the judge personally that he wanted to add his guardians’ last name to his last name. In May 2013, at Minor’s prompting, his foster mother and guardian reiterated the request in a letter to the juvenile court, explaining that Minor said his guardians were his parents and he wanted to be like his half-brother, C.K. In the first six months of 2015, Minor told his social worker he did not like being involved with the Department, and just wanted to be a normal kid. At the end of the year, when, as noted, his behavior was worsening, Minor reiterated these sentiments, again insisting that he wanted his guardians to adopt him and he wanted to take their name.
In this period, the Department met with Minor’s guardians, Father, and the Tribe to discuss visitation. Father had continued his supervised visitation following the permanency planning hearing. In May 2013, his visitation had been increased to a minimum of one 2-hour supervised visit per week, provided he was not under the influence of substances or alcohol during the visit. In November 2014, Father was also permitted to join in Minor’s weekly visits with Father’s sister, provided he was sober at the time.
In the2015 meeting about visitation, Father requested increased visitation with Minor. The Department was concerned, however, that Father’s visitation could be contributing to Minor’s meltdowns. Father tested the boundaries on occasion. In 2014, Father’ssister called the police after Father arrived at her house,appearing to be under the influence of drugs, to join in a visit with Minor and, becoming upset with C.K., began kicking at the door. In 2015, Father attempted to take Minor—then eight years old—out of school, apparently without warning or authorization. Later the same year, Father appeared unannounced at Minor’s guardians’ home, while Minor was having a “meltdown,” surprising the guardians who had thought their address was confidential, and began arguing with them about the reason for Minor’s behavior.In the same reporting period, the social worker learned Father sometimes spent the night at his sister’s house while Minor was there for approved overnights, staying in the same room with Minor, and Minor told the social worker this made him uncomfortable.[6]Before considering increased visitation, therefore, the Department asked that Father participate in individual counseling and then counseling with Minor. Father had not initiated individual counseling by the time the Department submitted its last status review report on December 18, 2015.
C. Post-Permanency Plan Review Hearing (January 2016)
In advance of the post-permanency plan review hearing on January 25, 2016, the Department submitted a status review report, advising that continuation of the dependency case was likely to exacerbate Minor’s behavioral issues because the required monthly home visits necessarily reminded him of the difference between him and his half-brother, C.K., who had been adopted. Nonetheless, while acknowledging Minor’s guardians had attempted to engage him in cultural events related to his heritage and to facilitate his visits with his birth family, the Department recommended continuing the dependency case for six more months. The additional time would allow it to finalize a plan, the Department explained, working with the guardians and the Tribe, to ensure Minor’s tribal and biological family connections were maintained after the juvenile court concluded its oversight.
In a separately submitted recommendation, the Tribe concurred, observing that the additional delay also would allow completion of a neuropsychological evaluation that the Department then was attempting to schedule, andincorporation of any evaluator recommendations into the guardianship case plan. Although noting that Minor’s placement with his guardians was outside the ICWA placement preferences (see 25 U.S.C. § 1915; Welf. & Inst. Code, § 361.31),[7] and advising that it would never approve adoption, the Tribe expressed an openness to supporting termination of dependency with the permanent plan of legal guardianship following a further six-month delay.
Minor’s counsel opposed the further delay, requesting that the dependency case be closed instead under an order of guardianship with the current foster parents. He maintained that the foster parents for years had demonstrated their commitment to maintaining Minor’s connection to the Tribe, and that Minor was suffering from the lack of permanency. Counsel also asked the court to reduce the visitation ordered for Father and his sister, as the frequency of the visitation was keeping Minor from experiencing the permanency he craved.[8]And he advised that Minor still wished to add his foster parents’ last name to his last name, as doing so would allow him to feel he was a “part of his forever family.”
At the January 2016 hearing, Minor, now nine years old, informed the juvenile court that he wanted “to live with this family [his foster parents], even though it might not always going to work out,” and that he wanted to change his last name, hyphenating it to include Father’s last namewith his foster parents’ last name. Minor also advised the court that he wanted to modify the visitation plan “a little bit” so that he could “go over there and have fun . . . . and then come back, so I would still have some time to spend with my family.” Minor’s counsel added that, while it was reasonable to keep the case open to receive the results and recommendations from the neuropsychological evaluation, he would prefer a 90-day review period, rather than six months. In the interim, counsel said he would explore the possibility of a tribal customary adoption and pursue the name change Minor was seeking. But counsel again urged the juvenile court to allow Minor a greater feeling of permanency immediately by reducing the amount of visitation for Father and Father’s sister, so that each had two visits monthly (rather than four).[9]
Father objected to this request, asking that the juvenile court refrain from changing his visitation until after the neuropsychological evaluation was completed and the parties returned for the 90-day review. Father also observed that Minor was not currently placed with a tribally approved home and, therefore, needed to maintain his tribal connections. Seeking to balance these competing interests and requests, the juvenile court ultimately opted to keep the dependency case open for six more months, but scheduled a 90-day review, and reduced visitation for Father and his sister as Minor’s counsel had requested (to at least twice monthly each), while adding that specific requests for additional visitation could be accommodated. This timely appeal of the modified visitation order followed.
II.DISCUSSION
Father contends that the juvenile court abused its discretion in reducing his visitation with Minor from once a week to twice a month at the post-permanency plan review hearing in January 2016. We do not agree.
“[D]ependency law affords the juvenile court great discretion in deciding issues relating to parent-child visitation.” (In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558.) We review a juvenile court’s visitation order solely for abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 456.) The standard warrants “a very high degree of deference” to the juvenile court’s decision. (In re J.N. (2006) 138 Cal.App.4th 450, 459.) The appropriate test is whether the 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.)
“Where, as here, a permanent plan of legal guardianship is ordered for a child, section 366.26, subdivision (c)(4)(C) governs parent-child visitation. Specifically, this provision states: ‘The court shall also make an order for visitation with the parents . . . 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.’ [Citation.]” (In re S.H., supra, 197 Cal.App.4th at p. 1558.) In this case, consistent with section 366.26, subdivision (c)(4)(C), the juvenile court, when it established the legal guardianship, did not find visitation with Father would be detrimental to Minor and, thus, ordered supervised visitation once a month. The following year, on the Department’s recommendation, the court increased Father’s visitation, allowing himweekly supervised visits with Minor for two hours and then alsopermitting him to attend Minor’s separate weekly visits with his sister (Minor’s paternal aunt).
By the time of the post-permanency plan review hearing in January 2016, however, Minor was nine years old andhad been in dependency for over six years. His guardians had adopted his half-brother in that time but could not adopt him, and Minor clearly was suffering from feelings of uncertainty and worries of impermanency. Minor’s comments to the juvenile court at the hearing—that he wanted to live with his foster parents “even though it might not always going to work out” and that he wanted to add his foster parents’ last name to his last name—compellingly underscored these points.
As the California Supreme Court has recognized, children have a constitutional and statutory interest in stability. (In re Jasmon O. (1994) 8 Cal.4th 398, 421.) “[A]fter a child has spent a substantial period in foster care and attempts at reunification have proved fruitless, the child’s interest in stability outweighs the parent’s interest in asserting the right to the . . . companionship of the child. [Citation.]” (Id. at pp. 419-420; see, e.g., In re Josiah Z. (2005) 36 Cal.4th 664, 674 [“ ‘There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged’ ”].) “[T]he law focuses more on the interests of the child at this late stage of the proceedings,” here nearly six years after placement with the foster parents. (In re Jasmon O., supra, 8 Cal.4th at p. 426.)
The Department reported to the juvenile court its concern that Father’s visitation could be contributing to Minor’s increasingly frequent “meltdowns” in 2015, and it supported Minor’s counsel’s request that the frequency of the visitation be reduced. Minor made the same request himself at the hearing, asking the juvenile court for “a little” modification,so that he could continue visitation but “still have some time to spend with my family,” i.e., his guardians and brother. The request was reasonable, as was the juvenile court’s decision to grant it. There was no abuse of discretion.
In arguing to the contrary, Father first submits that the reduction was drastic, claiming the juvenile court reduced his visitation by 75 percent. He appears to rely for this contention on Minor’s counsel’s apparent misstatement at the January 2016 hearing that Father, until then, had been permitted two 2-hour visits weekly. Actually, Father had been permitted one 2-hour supervised visit with Minor weekly, and also had been permitted to join in his sister’s separate four-and-a-half hour weekly visit with Minor if he was sober. The court reduced the frequency of Minor’s visitation both with Father and with Father’s sister by 50 percent, allowing both visitation twice a month, instead of weekly,[10] with the caveat that specific requests for additional visitation could be accommodated. Father cites no case law suggesting a reduction of this degree, at this juncture in a dependency proceeding, constituted an abuse of discretion and, again, we do not consider it to be such, particularly given Minor’s specific need for a greater sense of stability at that point. Indeed, although Minor’s counsel suggested visitation might be structured to have Father and his sister share the same visitation periods with Minor every two weeks, the juvenile court included no such limitation in its order, effectively allowing Father and his sister to stagger their visits in a manner that would have permitted Father almost weekly visits.
Citing In re Autumn K. (2013) 221 Cal.App.4th 674, in which the Court of Appeal acknowledged the importance of protecting an Indian child’s connection to his or her tribe and to the tribal community (id. at p. 716), Father also submits that the juvenile court erred in reducing his visitation because he was Minor’s personal link to the Tribe, and their connection was necessary to protect Minor’s Native American heritage, particularly as his guardians were not “an ICWA approved home.”We are unpersuaded. While Father undoubtedly did provide such a connection, the connection was not lost by the relatively modest reduction in Father’s visitation. Moreover, the record confirms that Minor had other connections to his Tribe and to the tribal community. Father’s sister and mother retained regular visitation rights with Minor, a Tribe social worker had been consistently involved in his case, and Minor’s guardians had involved him in cultural activities connected to his Tribe, and repeatedly expressed their commitment to continuing such activities.
Finally, Father disputes that his visits contributed to Minor’s “meltdowns,” contending to the contrary that Minor told the juvenile court he wanted substantial visitation with Father, and that the court essentially ignored Minor’s expressed wishes in reducing the visitation. While we agree that the record reflects Minor expressed an interest in maintaining visitation with his birth family, presumably including Father, we do not agree the juvenile court ignored his wishes. To the contrary, as previously noted, Minor expressly asked the court to change his visitation “a little bit” so that “[he] would still have some time to spend with [his] family.” His counsel explained that Minor wanted “a normal family life” with his guardians and a “greater element of permanency.” The Department’s counsel added it was her understanding Minor was not getting “much time, if any, on weekends with his guardians, the family he lives with, and his brother.” In reducing Father’s visitation, while still permitting him a minimum of twice monthly supervised visits and the option of joining in two other monthly visits at his sister’s house, the juvenile court attempted to do exactly what Father maintains it must, namely, consider the child’s expressed wishes. (See In re Emmanuel R., supra, 94 Cal.App.4th at p. 465 [juvenile court properly considered the child’s expressed desire, along with other factors,in deciding on proposed visitation].) The juvenile court did not abuse its discretion.
III. DISPOSITION
The juvenile court’s order is affirmed.




_________________________
Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.











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Humboldt County Department of Health & Human Services v. S.A. (A147706)

[1] Unless otherwise stated, all statutory citations herein are to the Welfare & Institutions Code.

[2] Minor’s mother, J.S. (Mother) is not a party to this appeal.

[3] As the parties are well acquainted with the protracted history of this case, we will limit our summary to the facts we deem necessary to our discussion of Father’s claim.

[4] C.K. was the subject of a related dependency matter.

[5] Although C.K. reportedly also is Native American, he is not an enrolled member of any tribe.
[6] Although the case plan allowed Father to join Minor’s visits with Father’s sister, if the sister approved and Father was sober, and allowed Minor to spend the night at the aunt’s house every other week, it did not expressly allow Father to remain overnight on those instances. Father’s visits also required supervision, which presumably was not available when Father and Minor were sleeping in the same room together.
[7] In April 2010, in advance of the dispositional hearing after Minor originally was detained, the Department was informed there was no Native American foster home available to take Minor.

[8] At the time, Father was permitted at least one supervised two-hour visit each week with Minor. Father’s sister was permitted one unsupervised four-and-a-half hour visit each week and one overnight visit every other week. Father was permitted to join in the separate visits at his sister’s house if he was sober.

[9] The Department supported this request, while the Tribe opposed it.
[10] The paternal aunt retained the right to have Minor spend the night at her house every other week.