Filed 3/12/18 In re C.F. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re C.F. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.M.,

Defendant and Appellant.


E068757

(Super.Ct.Nos. J259014 & J259015 & J259016)

OPINION


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
After terminating A.M.’s (mother) reunification services as to her three daughters the juvenile court issued an order reducing her visits from once a week to once a month, based on a request by the San Bernardino County Children and Family Services (the department). Mother appeals that visitation order, arguing she was not provided due process in the form of notice or opportunity to object to the department’s request. We disagree and affirm.
I
FACTUAL BACKGROUND
This appeal involves three girls, four-year-old CF, six-year-old SF, and DF, who is seven. This is mother and father’s (who is not a party to this appeal) third dependency, each of which has stemmed from their substance abuse and domestic violence. In the earlier two dependencies, the parents participated in services and demonstrated to the court’s satisfaction their daughters could safely return to their care, but in this case, the court found they were not making progress on their case plans, terminated services, and set a permanency planning hearing.
A. Jurisdiction and Disposition
In February 2015, the department received referrals alleging the parents would leave the girls unattended while they smoked methamphetamine in the parking lot of their apartment complex, would constantly fight around the girls, and did not have enough food in their home. That same month, the department took CF, SF, and DF into protective custody and filed dependency petitions on their behalf. The petitions alleged the parents abused drugs, exposed the girls to domestic violence, had criminal records, and had an extensive history with child protective services. (Welf. & Inst. Code, § 300, subd. (b); all unlabeled statutory citations refer to this code.) Mother had been either convicted or arrested of assault with a deadly weapon in 2009, and father’s criminal record included theft, domestic violence, and multiple convictions for possession of methamphetamine.
Mother was 23 years old. She admitted to the social worker she had a history of abusing methamphetamine, starting at the age of 17, but claimed she had been sober for two years. She said her mother had been a meth addict, which resulted in mother having spent much of her childhood in foster care. Mother admitted she had been allowing the girls to live with her sister-in-law, saying the sister-in-law had “talked her into it” because she thought mother and father would “mess [the girls] up because [they had] been through this twice.” The father admitted he was addicted to methamphetamine and smoked a gram of marijuana every day.
At the jurisdiction and disposition hearing, the parents submitted on the petition’s allegations and the court sustained the substance abuse, domestic violence, and child protective services history allegations. The court removed the girls from the parents care and authorized reunification services and weekly supervised visits.
B. The Reunification Period
1. The first six months
Although the parents were difficult to contact during this period because they lacked housing and phones, the department maintained a guarded prognosis for reunification, and recommended the court provide additional services to the 12-month stage. The parents appeared engaged in their case plans and were attending most weekend visits without incident. Mother enrolled in an inpatient treatment program because she was missing too many sessions of the outpatient program as a result of her homelessness. She completed domestic violence, anger management, and parenting programs, and reported she was no longer with father. Her drug test results were mixed. Between March and September 2015, she missed six tests, tested negative eight times, and positive twice. Meanwhile, the girls were stable and thriving in their foster home and had bonded with their caregivers.
At the status review hearing in October 2015, the court authorized an additional six months of services.
2. The next six months
This time, the department recommended terminating services and setting a permanency planning hearing. While mother was participating in components of her case plan, she was still with father and they were still doing drugs and engaging in domestic violence. She tested negative several times between October 2015 and March 2016, but failed to show four times.
Mother was loving and nurturing during visits, but she would also get emotional, which caused the girls to become anxious around her. In addition, the girls were exhibiting some behavioral problems like tantrums and aggression, and the foster parents had enrolled them in services to address those issues.
At the status review hearing, the parents objected to the department’s recommendations but did not present any evidence to counter the social worker’s report. The court found the parents’ progress towards reunification was inadequate, terminated services, and set a permanency planning hearing for July 2016. Mother did not file a writ petition challenging any of these orders.
C. Continuation of the Permanency Planning Hearing
From July 2016 to March 2017, the juvenile court continued the permanency planning hearing multiple times to allow the department to locate an adoptive home for the girls. The girls were bonded with their foster parents, but the couple was not interested in adoption.
During this period, mother’s situation and her visitation with the girls continued to devolve. She remained unemployed, homeless, and in a turbulent relationship with father. Her and father’s visits became so inconsistent the department required them to give 24-hour confirmation because the girls would get upset when they failed to show. When visits did occur, the parents would often leave early or argue in front of the girls. Mother always became emotional and cried during visits, saying she didn’t understand why her daughters had been taken from her.
D. The Department’s Request to Reduce Visitation
On June 14, 2017, the department filed a request to reduce the parents’ supervised visits from once a week to once a month. According to the minute order containing the department’s request, mother was consistently missing visits, was behaving inappropriately when she did show up, and had given the girls lice on multiple occasions. According to the social worker, mother had taken to telling the girls she would be “getting them back soon,” which caused them to become confused after visits. The social worker also reported that mother seemed high at a visit on May 19, 2017, twisting her jaw and blinking excessively. Mother did not show up for any visits after that.
The minute order states mother’s attorney received notice of the department’s request on June 12, 2017. On June 16, mother filed a form entitled “Objection/Response to Packet,” informing the court she objected to the request to reduce visitation. The objection form reflected that on June 15, the juvenile court had scheduled a hearing on the request for June 27.
At that hearing, the court said it had considered the request and objection and asked parents’ counsel if they had anything to add. Father’s attorney said, “We are going to enter an objection to the recommendation contained in the packet. I don’t have any [] evidence.” Mother’s attorney then responded she had “Just an objection.” The court overruled the parents’ objections and approved the request.
The following month, the department learned mother had missed her monthly visit because she had been incarcerated. When mother showed up for a visit on July 7, she became emotional and the girls did not want to interact with her.
That same month, the department located a prospective adoptive home in a different state and the court held a hearing on the department’s request to continue the permanency planning hearing to allow it to comply with the Interstate Compact on the Placement of Children. At that hearing, mother’s attorney informed the court mother planned to file a section 388 petition requesting the court change the visitation reduction order. The attorney said mother had not been present at the June 27 hearing on her objection and still opposed the reduction. The attorney added mother had just given her documentation indicating she was engaged in services. The court responded it believed the current visitation order was appropriate but the social worker had the authority to liberalize visitation if she felt it was warranted. The court added, “Mom, you can talk to the social worker about that.”
Mother filed a notice of appeal challenging the visitation reduction order on July 12, 2017.
E. Suspension of Visitation and Mother’s Section 388 Petition
On September 28, 2017, the department recommended suspending visits altogether because mother’s behavior was harming the girls. According to the social worker, mother continued to miss visits, and when she did show up, she bombarded the girls with inappropriate questions. The monitor had terminated the August visit early because mother refused to stop asking the girls about the foster parents and the dependency. Mother had missed the September visit because she was back in custody. The foster parents were concerned about SF because she was starting to think she was going home with mother based on what mother had told her during visits.
Mother objected to this request as well. At a hearing on October 20, 2017, the court overruled her objection and granted the request. The minute order from that hearing indicates mother once again did not present evidence to support her objection. The court continued the permanency planning hearing to January 2018.
In November, mother filed a section 388 petition asking the court to vacate the permanency planning hearing and reinstate reunification services. She attached a negative drug test from November 2, 2017, and a report from the Gibson House for Women in San Bernardino reflecting she had recently enrolled in a substance abuse program that would conclude on January 31, 2018. In support of her request, mother wrote, “I understand it took me a while to handle my case in a civilized manner and I do admit that I was not benefitting in my classes prior to this one but today I am being the mother I’m supposed to be by listening and learning from my substance abuse classes[,] parenting and counseling. I feel that I’m going to succeed because I’m not doing this for my children, not to get them back, but for me, cus if I can’t help myself how can I help anyone else.”
II
DISCUSSION
Mother argues the court deprived her of her right to notice and an opportunity to be heard by granting the request to reduce visitation without requiring the department to file a section 388 petition. We need not decide whether section 388 is the only mechanism through which a department may request a change to visitation because the record establishes mother received the due process she claims was missing. Mother was given notice of the department’s request, objected to the request, received a hearing on her objection, and failed to produce any evidence at that hearing. (See In re Matthew P. (1999) 71 Cal.App.4th 841, 851 [“In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard”].)
Mother’s assertion the court did not give her “a full opportunity to present conflicting evidence or to cross-examine the social worker” is difficult to countenance on this record. The court held a hearing to address mother’s objection and when it asked her attorney whether she had anything to add, counsel conveyed she had no evidence and was submitting on the objection. Mother had more than 10 days from when the court scheduled the hearing to gather evidence, prepare a cross-examination of the social worker, or, at the very least, object that a section 388 petition was required. The repercussions for not doing so fall on her, not the department or the court.
Mother’s reliance on In re Lance V. (2001) 90 Cal.App.4th 668 is unhelpful. In that case, the appellate court found a violation of mother’s due process rights when the juvenile court reduced her visitation during the same hearing in which the department had suggested the reduction. (Id. at pp. 671, 673, 677.) Here, in contrast, mother received advance notice of the department’s request and was provided a hearing to support her objection.
We also reject mother’s assertion the reduction order is not supported by substantial evidence. The social worker reported mother had missed several visits to the point it was upsetting the girls, made inappropriate statements to the girls, and gave them lice on more than one occasion. On appeal, mother questions the reliability of these representations, but her challenge comes too little, too late. The time to question the social worker about her observations was during the hearing on the department’s request. “‘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, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Once the court has terminated services and set a permanency planning hearing, as the court did here, an order reducing the frequency of visitation—unlike an order denying visitation—does not require a detriment finding, but rather can be based on the best interest of the child. (In re S.H., at p. 1558.) Here, the social worker’s representations provide ample evidence reducing visitation was in the children’s best interest and mother presented no evidence in opposition. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446 [our task is to determine “whether ‘a reasonable trier of fact could have found for the respondent based on the whole record’”]; In re Lana S. (2012) 207 Cal.App.4th 94, 103 [“‘We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts’”].)
Finally, even if mother could demonstrate the order was erroneous, she cannot demonstrate prejudice under any standard. (In re James F. (2008) 42 Cal.4th 901, 911 [alleged due process errors subject to harmless error analysis].) Even on the reduced visitation schedule, mother was unable to attend each visit or curb her inappropriate behavior towards her daughters. Additionally, the evidence in her section 388 petition was inadequate to demonstrate additional contact between her and the girls was in their best interests. All her petition demonstrated was that she had tested negative once and enrolled in a substance abuse program. It contained no evidence to counter the social worker’s representations about her behavior regarding visits, and, perhaps tellingly, she does not argue on appeal that such evidence exists. Indeed, mother had a second chance to produce favorable evidence—at the hearing on the department’s request to suspend visitation—and she did not do so.
Mother contends the reduction order will prejudice her down the line at the permanency planning hearing when she argues the parental benefit exception to terminating parental rights applies to her. We disagree. Even if the court had never issued the order or reduced her visits, mother would not be able to establish the parental benefit exception applies. A necessary element of that exception is consistent visitation and she had missed several visits before the order and then continued to miss visits under the reduced schedule. (See § 366.26, subd. (c)(1)(B)(i) [requiring parent to have “maintained regular visitation and contact with the child”].)
Mother has not shown the visitation order was erroneous and therefore we uphold it.
III
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.
We concur:

CODRINGTON
Acting P. J.

FIELDS
J.