In re A.C.

Filed 1/26/07 In re A.C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

E.C. (appellant) appeals from the juvenile courts order reducing her visitation from weekly to twice a month. Finding no abuse of discretion, we affirm.

PROCEDURAL AND FACTUAL HISTORY

On June 30, 2004, 10-year-old A.C. and five-and-a-half-year-old Kyra C. were temporarily detained by the Fresno County Department of Children and Family Services (the Department) when their maternal great-grandmother informed the Department that she was no longer able to care for them and could not locate their mother, appellant. When appellant was located, she admitted she was homeless, unemployed, and using cocaine and marijuana.

The Department filed a petition alleging the children were subject to jurisdiction under Welfare and Institutions Code section 300, subdivision (b)^[1]because appellant had a history of substance abuse which contributed to her unstable lifestyle of prostitution and homelessness and her failure to maintain ongoing contact with her children or provide a suitable plan for their care and support. At the detention hearing on July 7 , 2004, the juvenile court found prima facie evidence to support the Departments section 300 allegation and formally detained the children. The children were placed in foster care.

At mediation on July 27, 2004, appellant agreed to submit on the petition and asked to be referred to an inpatient substance abuse program. The juvenile court accepted appellants submission and found the allegations of the petition true.

Pending disposition, appellant completed an Addiction Severity Index and began participation in an inpatient substance abuse program. She also began visiting the children. The Department recommended out of home placement for the children. It also recommended reunification services for appellant, including a mental health assessment and any recommended treatment, a parenting education class, a substance abuse evaluation and any recommended treatment, and drug testing.

At the August 26, 2004, disposition hearing, appellant submitted on the recommendation for services. The minors were declared dependents of the court and removed from appellants custody. The Department was ordered to provide the recommended services to appellant. In addition, appellant was ordered to undergo a psychological evaluation and risk assessment.

At the time of the postdisposition mediation on October 7, 2004, appellant had made significant progress in her substance abuse treatment program, was attending an anger management/domestic violence program, and was on the waiting list to attend parenting classes. Appellant missed her mental health assessment appointment and had not yet been referred for the risk assessment. The juvenile court ordered the Department to provide visits for appellant, including make-up visits, and granted the Department discretion to provide unsupervised visits.

Appellant continued to participate in substance abuse treatment at an inpatient facility. While there, she gave birth to a third child, who remained with her. Appellant completed a psychological evaluation and tested negative for drugs. She visited the minors every week for two hours. The visits went well and the children expressed a desire to live with appellant. Appellant was scheduled to begin parenting classes. On December 23, 2004, the juvenile court ordered an additional six months of services for appellant.

The following month, a court-authorized attachment study established that appellant and the children did share a bond, but concerns about future attachment difficulties were noted, and family therapy was recommended.

At the time of the 12-month review hearing, the Department reported that appellant had made significant progress toward reunification: she completed the inpatient portion of the substance abuse program; she had unsupervised visits with the minors; she provided excellent care for her newborn; she completed one parenting class and planned to participate in a second; she completed a psychological evaluation and a mental health evaluation; and she submitted multiple negative drug tests. Appellant secured appropriate housing. Appellant participated in unsupervised visits with the children, which the children enjoyed. The children expressed a desire to live with appellant. On June 23, 2005, the juvenile court extended services for an additional six months and ordered appellant to attend individual counseling, a medical evaluation, a neurological assessment, and to follow any recommended treatment. The court authorized liberal visits.

Pending the 18-month review hearing, appellant completed the aftercare portion of her substance abuse counseling, completed another parenting class, began individual therapy, her drug tests remained negative, and she continued to visit the minors. But she had not yet started family therapy because the referral had not been processed, and she had not yet made an appointment for a medical evaluation or neurological assessment. In addition, she was living in emergency housing and had not yet located an appropriate home. The Department recommended a termination of services because mother did not have suitable housing.

On January 5, 2006, appellant submitted on the new recommendation in order to continue to obtain the necessary service components. The juvenile court terminated reunification services and set a permanency planning hearing. In anticipation of the permanency planning hearing, the Department recommended a permanent plan of long-term foster care.

On April 12, 2006, after relapsing, appellant reenrolled in the inpatient substance abuse program. The Department noted that the children were happy to visit appellant at the program and recommended unsupervised visits with the discretion to liberalize.

At the permanency planning hearing on May 4, 2006, the juvenile court, noting appellants relapse, approved a permanent plan of long-term foster care with two hours of supervised visits per week. No services were ordered for appellant. Appellant filed a timely notice of appeal, and this court affirmed the order for supervised visits, the only order challenged by that appeal. (In re A.C. (Nov. 21, 2006, F050316) [nonpub. opn.].)

In anticipation of the June 8, 2006, status review hearing, the Department reported that the children remained in foster care. Appellant discharged herself from the inpatient substance abuse treatment center a month after reentering. Since the previous hearing in early May, appellant had had only three visits with the children. She missed one visit because a message was not relayed to her. A. did not attend one visit because she did not believe appellants explanation for missing another visit. At one of the visits, appellant mimicked Kyra, causing her to become upset. At another, appellant made comments that upset A., and appellant talked on the phone during the visit.

The Department recommended visits be supervised and that they occur for one hour twice a month. This recommendation was based on appellants premature discharge from substance abuse treatment, her attendance and conduct at the visits, and A.s reaction to appellants missed visits.

Appellant did not appear at the status review hearing held June 8, 2006. Counsel for the minors agreed with the recommendation. Appellants counsel stated she had not been contacted by appellant and did not know her position, but submitted on the report and recommendation. Based on the report, the juvenile court adopted the recommendation and reduced appellants visits to occur supervised and at the rate of one hour twice per month with both girls.

DISCUSSION

Did the juvenile court abuse its discretion when it reduced mothers visitation from weekly to twice a month?

Appellant argues that the juvenile court abused its discretion when it reduced her scheduled visits with her children from once a week to twice a month. The Department counters that appellant has forfeited her right to assert this error and that she also waived her right to challenge the order on appeal by submitting, through counsel, on the issue at trial. On the merits, the Department contends the juvenile court did not abuse its discretion when it reduced appellants visitation.

We first address the Departments forfeiture argument. It is true, as the Department contends, that a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, where they may be corrected. (Id.at p. 590.) And dependency matters are not exempt from this rule. (See, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [failure to request court to order bonding study]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to challenge the setting of a permanency planning hearing when court determined that no reasonable reunification efforts were made].)

While application of the forfeiture rule is not automatic, this courts discretion whether to excuse the forfeiture is to be exercised rarely and only in cases presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) And in dependency cases, the discretion must be exercised with special care . (Ibid.) In In re S.B., on which appellant relies, the mother failed to object in the juvenile court, but on appeal challenged the visitation order which provided that the childs legal guardians make all decisions concerning the mothers visits with her child. The Supreme Court determined that the Court of Appeal did not abuse its discretion in entertaining the mothers challenge, notwithstanding her failure to object below, because the issue of whether a juvenile court in a dependency case may delegate to the childs legal guardian the authority to decide whether a parent may visit the child was an important issue of law which had divided the Courts of Appeal at that time. (Id. at pp. 1292-1294.)

Appellant contends this case also presents an important issue of law: whether after finding that adoption was not in the childrens best interest because of their strong parent-child relationship with [appellant] , the juvenile court properly reduced the childrens visits with [appellant]. We do not find appellants claim here on a par with that addressed in In re S.B. Whether a juvenile court may reduce the number of visits between parent and child, while important, is not a new issue or one dividing the Courts of Appeal.

We next address the Departments contention that appellant, through counsel, submitted on the issue at the hearing. The record shows the following. After the juvenile court stated that it had read and considered a recommendation that appellant have one hour visits twice a month with her children, the court asked for a response from the minors counsel, who stated she was in agreement with the Departments recommendations. The court then asked appellants counsel, who stated:

Your Honor, I havent really had a chance to review the report, but my client has had no contact with me. And, therefore, I do not know her position.

The Court: Do you want to trail the matter for a moment?

[Counsel]: Its a short report.

The Court: Do you want to read it right now?

[Counsel]: Or just trail it for a few minutes.

The Court: Well go off the record if youd like to read it now.

(Off the record.)

The Court: Well go back on the record. [] And, [Counsel], have you had a chance to review the report?

[Counsel]: Yes, I have, Your Honor.

The Court: All right. And your position then with respect to the report and recommendation?

[Counsel]: Well, again, Your Honor, my client hasnt had any contact with me and I really do not know her position, so I will submit on that, Your Honor.

The court then ordered that appellants visits be supervised visits at the rate of one hour twice a month with both girls.

Appellant contends the Department has mis-characterized counsels submission, stating that she did not submit on the report and recommendation, but was instead submitting on the fact that she had no contact with [appellant] and did not know her position.

Both the Department and appellant rely on In re Richard K. (1994) 25 Cal.App.4th 580, the former finding it analogous to the situation here and the latter distinguishing it from the present case. In Richard K., counsel for a parent expressly submitted the matter of a dependency disposition, including the issue of removal, on a department recommendation. The department recommended removal from parent custody, a recommendation which the court in turn adopted. On appeal, the issue of waiver ensued when the same parent challenged the sufficiency of the evidence to support the removal order.

This court began its analysis by acknowledging varied meanings of the words submit and submittal in judicial proceedings, including submitting on a particular report or record. In such a scenario, the parent agrees to the courts consideration of such information as the only evidence in the matter. Under such circumstances, the court will not consider any other evidence in deciding whether the allegations are true. [Citation.] (In re Richard K., supra, 25 Cal.App.4th at p. 589.) We reasoned the parent acquiesces as to the state of the evidence yet preserves the right to challenge it on appeal as insufficient to support a particular conclusion. (Ibid.)

But the parent in Richard K. had expressly submitted, not on the report but rather, on its recommendation. Finding waiver, we observed:

[a]s a general rule, a party is precluded from urging on appeal any point not raised in the trial court. Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware. [Citation.] Similarly, in this case, by submitting on the recommendation without introducing any evidence or offering any argument, the parent waived her right to contest the juvenile courts disposition since it coincided with the social workers recommendation. He who consents to an act is not wronged by it. [Citation.] (In re Richard K., supra, 25 Cal.App.4th at p. 590.)

In the present case, when asked by the juvenile court about counsels position on the report and recommendation, appellants counsel submitted on that. At first glance, counsels submission on the report may have preserved appellants right to challenge the sufficiency of the evidence as to the courts findings. (In re Richard K., supra, 25 Cal.App.4th at p. 589.) But we find that she has waived her right to complain on appeal because the report consisted of instances of appellants visits with the children and the Departments recommendation that the visits occur twice per month for one hour. And, when asked, appellants counsel specifically submitted on the recommendation. Under the circumstances of this case, appellants submittal amounted to her acquiescence that she was in agreement with the recommendation which she now challenges. Having consented to the terms of the recommendation, she cannot be wronged by it. (Id. at p. 590.)

Even if we were to find no waiver, we find that the juvenile court did not err in reducing appellants visits with her children.

Section 366.22, subdivision (a) provides that where, as here, long-term foster care is ordered and reunification services have been terminated, [t]he court shall continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. The court has the authority to determine the length and frequency of visitation and may impose other conditions or requirements on visitation depending on the particular circumstances. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)

We review the juvenile courts visitation orders under the deferential abuse of discretion standard. 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.)

The record shows that, at the May 4, 2006, status review hearing, the juvenile court selected a permanent plan of long-term foster care for the children and temporarily changed appellants visits from unsupervised to supervised because appellant had relapsed and admitted herself back into the drug treatment program. Another status review hearing was set for the following month to revisit the issue of visitation. During the month between hearings, appellant discharged herself prematurely from the substance abuse program she was in. She did not attend a May 12, 2006, visit because she had not been advised of the meeting. When A., who was expecting to visit that day with appellant, was told why her mother was not there, she was upset and refused to attend the next visit on May 17. At the May 17 visit with Kyra, appellant taunted and mimicked Kyra, who became upset at appellant and called her Ugly. At the June 5 visit, appellants cell phone rang and she took the call, ignoring the girls in the process. Kyra said she was bored, really bored, during the visit. Also during the visit, appellant told A. she was lazy. The social worker noted that appellant had previously made other comments that embarrassed A.

After the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability [citation] . (In re Stephanie M., supra, 7 Cal.4th at p. 317; accord, In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The paramount objectives in fashioning orders for the minors at this stage of the proceedings were permanence and stability. Appellants inappropriate conduct and her relapse into drug use and premature discharge from treatment substantially interfered with the minors stability. Under the highly deferential standard of review that we are required to apply, we cannot find an abuse of discretion in the juvenile courts determination that twice monthly visits between appellant and the minors were appropriate.

DISPOSITION

The orders of the juvenile court are affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.

Pursuant to California Constitution, article VI, section 21.

^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise noted.