Filed 12/18/17 In re M.G. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.G. et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,

Plaintiff and Respondent,

v.

LARRY G.,

Defendant and Appellant.

F075624

(Super. Ct. Nos. 15CEJ300097-1, 15CEJ300097-2, 15CEJ300097-3, 15CEJ300097-4)


OPINION
APPEAL from an order of the Superior Court of Fresno County. Gary L. Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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The sole contention on this appeal is that the juvenile court erred when it failed to address the visitation order between Larry G. (father) and three of his four children. Father does not contest the order terminating his parental rights to one of his children, nor the “planned permanent living arrangement” for his other three children. We affirm.
BACKGROUND
Parents’ Criminal and Social Services Department Histories
Father and mother have criminal histories, as well as a history of involvement with the Fresno County Department of Social Services (department), including father’s 2004 criminal conviction for infliction of corporal injury on a spouse, a 2006 substantiated department referral based in part on domestic violence between mother and father, and father’s 2007 criminal conviction for violating a court order to prevent domestic violence.
Minors’ Removal from Parental Custody and Unsuccessful Reunification Efforts
In April of 2015, 11-year-old M.G.1, nine-year-old L.G., six-year-old M.G.2, and six-month-old C.G. were detained and subsequently removed from parental custody based on sustained Welfare and Institutions Code section 300, subdivision (b) allegations that: (1) mother had a mental illness that undermined her ability to care for and protect the minors; and (2) father was aware of mother’s mental health issues and failed to make an appropriate plan for the minors’ care.
When it removed the minors, the court ordered the department to provide father with family reunification services. The case plan included participation in a parenting education course, a domestic violence evaluation and recommended treatment, and a mental health evaluation and recommended treatment. Father was granted supervised visits with the minors, with the discretion by the department to progress, with notice and updated discovery, from unsupervised to liberal and extended visits.
Shortly before the dispositional hearing, father was arrested and charged with aggravated assault against mother. Father was incarcerated for a brief period of time, then initially complied with the requirements of his reunification plan, but ultimately fell out of compliance.
At the six-month review hearing on December 15, 2015, the juvenile court continued the removal order and family reunification services, and a 12-month review hearing was set.
At the 12-month review hearing on June 9, 2016, the juvenile court continued the removal order, terminated father’s services, extended mother’s services and set an 18-month review hearing.
At the 18-month review hearing on October 27, 2016, the juvenile court terminated mother’s reunification services and set a section 366.26 hearing.
Minors’ Placement and Adjustment
The minors were originally placed together in a non-relative foster home. A month later, in May 2015, they were separated into two non-relative foster homes – M.G.1 and M.G.2 in one home; L.G. and C.G. in another. L.G. and C.G. were ultimately separated as well, with C.G. moved into a third foster home in July 2016, and L.G. moved into a third and then fourth home in November 2016.
During the reunification period, the department reported the minors were physically healthy and developmentally on target. However, concerns were raised about their mental and emotional stability. Each minor was enrolled in therapy: M.G.1 to “reduce withdrawn behaviors, decrease depressive symptoms, [and] increase positive communication of thoughts, feelings, needs and concerns”; L.G. to “reduce disruptive, defiant, and aggressive behaviors, reduce depressive symptoms and increase positive communication of thought[s], feelings, needs, and concerns”; M.G.2 to “increase secure attachment and increase positive communication of thoughts, feelings, needs, and concerns”; and C.G. to “reduce indiscriminate attachments [and] reduce tantrums and disruptive behaviors.”
Despite therapy, with the exception of C.G., the minors’ negative behaviors got worse. M.G.1, L.G., and M.G.2 all refused to speak during therapy sessions, suffered from encopresis and enuresis, were difficult to redirect, and did not maintain proper hygiene. L.G. also began to display sexualized behavior, and was diagnosed with a learning disability.
By the time of the section 366.26 report, the department reported C.G. had completed therapy and been discharged; M.G.1, L.G. and M.G.2 were progressing in therapy. L.G. continued to display severe behavior problems. An individualized education plan was developed to address his learning disabilities, but he had numerous reports of misbehavior in school, including watching pornography on a tablet in class, “flipping off” his teacher, sexually harassing a female student, and stealing pointed scissors to make them into throwing knives.
The department ultimately relayed reports from M.G.1 and M.G.2 indicating that they did not want to be adopted, and concluded that M.G.1, L.G., and M.G.2’s mental health issues and behavioral problems prevented them from being adopted or placed in a legal guardianship. As such, it recommended the older three minors remain placed in foster care until they could be placed in legal guardianships.
The department report stated that C.G. had adjusted well in her most recent foster home, was attached to her foster mother, and that the caretaker was willing and able to adopt her. It recommended parental rights to C.G. be terminated so that she could be adopted.
Parent-Child Visits
Father visited the minors fairly consistently twice-weekly during the reunification period. The visitation supervisor reported that father was loving, nurturing, caring, attentive, and patient with the minors, and the minors liked visiting with father. In September 2015, father’s visits were liberalized to occur without supervision, but father’s housing prevented the department from liberalizing visits further.
After reunification services were terminated in June 2016, father failed to contact the department and stopped visits for a few months. He contacted the department in September 2016, reported he had been working out of town, and wished to begin visits again. However, the department relayed reports from M.G.1 stating father had been participating in mother’s unsupervised visits in violation of a restraining order, and that father had been seen yelling at an adult male at mother’s apartment complex during the time he reported he was out of town. The minors were present during the altercation and M.G.1 said she was “scared her dad was going to hurt her mom again.” The department also reported that the minors’ emotional stability and behavioral problems were exacerbated by their visits with mother, and that father refused to acknowledge the minors’ problems. Finally, the department relayed a report from L.G.’s caretaker stating that, during a telephone call, father had encouraged L.G. to keep a unspecified secret and told L.G. he would be taking him and his siblings to Sacramento.
Due to these developments, the department imposed supervision requirements on father’s visits and the juvenile court reduced father’s supervised visits to once a week. Between October 17 and November 7, 2016, father participated in four supervised visits. While father engaged well with the minors, was able to redirect them when necessary, and offered praise for their accomplishments, he talked negatively about the department social worker and the juvenile court.
On October 11, 2016, the department filed a section 388 petition asking the juvenile court formally reinstate the supervision requirement for father’s visits. At a hearing on the petition on November 3, 2016, father denied reports that he had been at mother’s apartment complex arguing, or that he had talked to L.G. about keeping a secret. He did admit that he talked to L.G. about taking the minors to Sacramento, explaining that he hoped to have the minors placed with a relative there. He acknowledged that he did not believe the minors were exhibiting unusual behaviors or mental health issues.
The juvenile court denied the petition without prejudice, concluding the department failed to prove father violated mother’s restraining order, but ordered the issue of visits be revisited in 30 days. The juvenile court did express concern with father’s refusal to acknowledge the minors’ behavioral issues and his conversation with the minors on the issue of placement.
No problems were reported with father’s unsupervised visits on November 25 and December 1, 2016, but at a hearing on December 8, 2016, the juvenile court reduced father’s visits to twice a month.
After the December 8, 2016 hearing, father confronted a department social worker about her role in removing the minors from parental custody. Father told the social worker, “I’m going to take this to the next level and this isn’t over yet.” When asked by the social worker what he meant by that statement, father accused the department of lying and told the social worker she “had the devil in her,” that her time was coming, and that “these are the end days.” That same day, father left a voicemail for the social worker accusing her of breaking his bond with the minors. He then said, “Ah, I got one thing for ya, ya know, you’re in the wrong, your self. But y’all gonna to let … see the devil come out in me. I’m gonna show y’all the real nigger. I’m pissed off now, it’s good.”
The following day, the social worker called father, who apologized but continued to accuse the social worker of taking the minors illegally. He then said, “I don’t know what I’m about to do, but I know I’m about to do something major.” When asked what he meant, father said, “I’m not an average nigger,” and then accused the social worker of intentionally breaking his bond with his children. According to father, he had to protect his children and no foster parent would jump in front of a bullet to protect the minors.
Later that day, father left another belligerent voicemail for the social worker. He then spoke with the receptionist in the department and asked if the social worker parked in the back of the department’s office building. In response, the receptionist called security.
On December 16, 2016, the department filed a second section 388 petition asking that father’s visits with the minors be terminated. In its petition, the department referenced father’s interactions with the social worker and his history of domestic violence. It was also reported that father sent a text message to one of the minors’ foster parents stating,
“Yah don’t like ugly all you wicked in evil people will give anafk accurate account for the evil you and your family in friends who bring harm towards my baby and son you’re a lier n the truth is not in you I rebuke you in the name of JESUS the blood is against you in my children will be set free get ready it’s prayer time against you witches and CPS witches.”
The department interpreted father’s comments to the social worker and the minors’ foster parents as threats. Coupled with father’s history of domestic violence, the department worried father would act out in a way that would cause physical harm to the minors.
Father was not present at the January 12, 2017, hearing on the department’s petition. The juvenile court granted the motion and terminated father’s visits. The juvenile court expressed concern for the safety of the social worker and the minors and referred to father as a “volatile person” who “could act out in the presence of the children.”
The department reported father subsequently had unsupervised telephone contact with M.G.1 and asked that M.G.1 have L.G. call him.
In the report prepared for the section 366.26 hearing, the department noted that, when visits were still taking place, father spent time equally with the minors, and specifically, as to C.G. that he hugged and kissed her, talked with her while he changed her diaper, read her books, praised her when she pretended to cook him food, and directed her while she colored. The department recommended the juvenile court order supervised visits between father, M.G.2, L.G., and M.G.1 once every three months.
Section 366.26 Hearing
Shortly before the section 366.26 hearing, mother reported that father contacted her and told her he planned to pick up the minors from their schools and take them away. Soon after, father was incarcerated. Circumstances of his incarceration were unknown, but the department reported father had been wanted for felony battery and false imprisonment with violence.
Father appeared in custody at the April 27, 2017, section 366.26 hearing. Through counsel, father objected to the department’s recommendation to terminate his parental rights to C.G. so that she could be adopted. Instead, he hoped the minors could be placed together with relatives. He asked that the juvenile court apply the parent-relationship and sibling-relationship exceptions to termination of parental rights , but presented no evidence.
The juvenile court found it would be detrimental to terminate parental rights to M.G.1, L.G., and M.G.2 because M.G.1 was over 12 years old and objected to termination, and all three minors were over seven years old and no prospective adoptive parent or legal guardian had been identified for them. The juvenile court ordered the three older minors remain placed in foster care “until the specific goal … of legal guardianship is appropriate.” Education rights were transferred from father and mother to the minors’ respective foster parents.
The department deviated from its earlier recommendation in the report that father be given limited supervised visits and asked instead that the juvenile court continue the order for no visits between father and his three oldest children. Father asked biweekly visits be reinstated, explaining that he was being housed in jail. The juvenile court stated it would not address the current visitation order “in the absence of any support, especially from the minors’ counsel,” and “the existing visitation order for [father] will remain in place.”
The juvenile court then found clear and convincing evidence that C.G. was likely to be adopted and terminated parental rights to her.
DISCUSSION
Father contends the juvenile court erred when it refused to exercise its discretion under section 366.26, subdivision (c)(4)(C) to determine whether visits between father and M.G.1, L.G. and M.G.2 would be detrimental to the minors.
Respondent contends father forfeited this claim for appeal. We disagree. At the section 366.26 hearing, father specifically requested the juvenile court order visitation be reinstated. The juvenile court denied his request, stating it would not address the current visitation order absent support, especially from minors’ counsel. Because father contested the no visitation order, he did not forfeit the issue for appeal. (See In re Javier G. (2006) 137 Cal.App.4th 453, 464.) However, although father did not forfeit his challenge to the no visitation order, we find no error on the part of the juvenile court.
At a section 366.26 permanency planning hearing, if the juvenile court orders a legal guardianship or long-term foster care placement for children who are dependents of the court, “[t]he 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.” (§ 366.26, subd. (c)(4)(C).) By adding this statutory provision, “the Legislature made clear its intent to require juvenile courts to make visitation orders in both long-term foster care placements and legal guardianships.” (In re M.R. (2005) 132 Cal.App.4th 269, 274.) A juvenile court accordingly has a statutory obligation to make an order for visitation at a section 366.26 hearing unless it affirmatively finds that visitation with the parent would be detrimental to the child. (§ 366.26, subd. (c)(4)(C); see also In re M.R., supra, at p. 274 [under section 366.26, “the trial court was required to make a visitation order unless it found that visitation was not in the children’s best interest”].) “Detriment includes harm to the child’s emotional well-being.” (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357.)
Father contends the juvenile court “flatly refused” to consider whether visits would be detrimental to the minors. We disagree that is what occurred here. At the time of the section 366.26 hearing, the no visitation order in place was, as the juvenile court was well aware, based on an earlier finding of detriment. As the juvenile court stated at the section 366.26 hearing, absent any new information from father or anyone else, there was no reason to change the order. In other words, the juvenile court did not fail to address the issue of visitation, but instead reaffirmed its earlier finding of detriment.
Contrary to father’s further assertion, there was substantial evidence of detriment. (See Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1028 [on substantial review, we “‘review the record in the light most favorable to the court’s determination and draw all reasonable inferences from the evidence to support the findings and orders’”].) When the department earlier requested father’s visits be suspended in its December 2016 section 388 petition, four months prior to the section 366.26 hearing, it set forth the request based on numerous inappropriate responses and threats from father to the social worker and one of the minors’ foster parents, as well as on his domestic violence history. After visits were terminated, father had unauthorized telephone contact with the minors and spoke to them inappropriately concerning their placement. And shortly before the section 366.26 hearing, mother reported that father contacted her and told her he planned to pick up the minors from school and abscond with them. In granting the December 2016 no visitation order, the juvenile court stated that, while father “squeaked by” when it denied the department’s earlier request in October 2016, by this point it was clear father was “volatile” and the juvenile court was hesitant to put him in a position where “he could act out in the presence of the children.” Thus, although the juvenile court did not make an express finding of detriment at the section 366.26 hearing, any error in failing to do so was harmless as detriment can be implied from the record. (In re G.P. (2014) 227 Cal.App.4th 1180, 1197 [rejecting challenge to juvenile court’s failure to make an express finding because, inter alia, “the record supports an implied finding of detriment”]
Father contends the juvenile court’s failure to make express findings of detriment was not harmless as he was prejudiced thereby. As argued by father, he contends his visits with the minors were “uniformly positive, and his visits were at times liberalized to occur without supervision.” Father notes, although his visits were restricted and ultimately terminated because of fears that he might lash out at the social workers or other adults in front of the minors or that he might try to abscond with the minors, those fears were alleviated by the fact that he was incarcerated and “those risks were effectively neutralized.” As such, he claims, the record does not affirmatively demonstrate he would not have been granted visitation had the juvenile court properly exercised its discretion.
We find father’s argument without merit. While incarceration does not automatically establish that visits are detrimental (C.f., § 361.5, subd. (e)(1)(C)), the reasons father’s visits were terminated are still applicable. Nowhere does father indicate how long he will be incarcerated. Furthermore, father’s inappropriate and threatening behavior toward the social worker and caregiver, as well as to mother, escalated to the point that the juvenile court felt he should not have further exposure to the children. His threat to one of his children’s caregivers reasonably implicates the child’s safety and physical and emotional well-being as well, as it might impede the minors’ placement in a safe and permanent home. We reject father’s claim to the contrary. (In re Corienna G. (1989) 213 Cal.App.3d 73, 84-85 [affirming order where “appellants were not prejudiced by the lack of an express determination” and “this determination can be implied on this record”].)
DISPOSITION
The order is affirmed.


FRANSON, J.
WE CONCUR:



GOMES, Acting P.J.



DETJEN, J.