In re Jeremiah J.

Filed 2/28/07 In re Jeremiah J. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This appeal has been taken from an order in a juvenile dependency proceeding that terminated the dependency, granted sole legal and physical custody of the minor to the mother, denied the father telephone contact with the minor, but granted an exchange of mailing addresses to facilitate written communication with the minor. The father claims that he should have also been granted telephone visitation with the minor. We conclude that the visitation order was not an abuse of discretion and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The dependency proceeding began with the filing of a dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g), on November 8, 2004, that alleged failure to protect the minor and provide for support. The petition and accompanying detention report specified that on November 3, 2004, a visit to the residence in Sacramento occupied by the minor, his father, and his mother for the purpose of investigating a referral revealed that the mother appeared to be under the influence of drugs, and was uncooperative. The father also appeared to be under the influence during the visit. The father was immediately arrested on a parole violation for extradition to the state of Montana. The minor was detained and placed in protective custody.

An investigation disclosed that the minor had seen his parents smoke crack cocaine and engage in panhandling. The mother was observed with black stains on her hands and mouth, an indication of chronic drug use. The minor told investigators his parents smoke stuff from tiny bags that smells really bad.^[1] The mother refused a request to submit to drug testing.

Red marks and bruises were observed on the minors bicep, feet, ears, and elbows; his lip was in the process of healing. The minor indicated that he was afraid of his father because he spanks me so hard, and wanted the father but not his mother to leave the house. The minor disclosed that his father hits him with a belt, which had left marks on him. The mother agreed that the father had swatted the minor on the butt with his hand and a belt, but she did not believe the minor was being abused. According to the mother, the minor had seen acts of domestic violence occur between the mother and the father. The minor told investigators that he witnessed the father engage in a physical altercation with a roommate. The child was also reportedly isolated in a room and not allowed contact with anyone. The record further indicated that the father suffered prior convictions in California for burglary (Pen. Code,  459), assault by means of force likely to cause great bodily harm (Pen. Code,  245), and trespass (Pen. Code,  369i).

The court sustained the allegations of the petition on January 18, 2005, and the minor was adjudged a dependent child of the court. Both parents were ordered to participate in reunification programs, including alcohol and drug treatment programs. The minor was temporarily placed with his maternal grandfather in Humboldt County. The father was transferred to the Department of Corrections in Montana, where he was incarcerated and unable to care for the minor. He was granted letter and telephone contact as arranged and directed by the Department while incarcerated, and upon his release was granted visitation in a manner and frequency left to the discretion of the Department.

The mother thereafter moved to Eureka to be closer to her son, and pursuant to her request the dependency matter was transferred to Humboldt County. She received residential drug treatment services and attended a parenting skills program. According to drug testing results the mother was in a clean-and-sober living situation. She visited regularly with the minor, attended parent-teacher conferences, and participated in his therapy. The visits were appropriate and positive. She also obtained employment, purchased a car, paid off debts, and kept her scheduled appointments. By the date of the 12-month review hearing the mother had complied with recommended treatment programs and met the objectives of her case plan. The minor expressed that he want[ed] to live with his mom again.

The father was released from Montana State Prison in April of 2005, but violated his probation, absconded, and a warrant was issued for his arrest. In June of 2005, the father was in custody in [a] Sacramento jail, but by December of 2005, he was returned to Montana State Prison to serve his sentence.

Following the 12-month review hearing, the court found that the father did not comply with his case plan, and made no progress at alleviating or mitigating the causes that necessitated the dependency. Throughout the dependency proceedings the father had not participated in any of the hearings, contacted or visited the minor, or contacted the Department. His reunification services were terminated in January of 2006.

In contrast, the mother had fully complied with her case plan. The court found that return of the minor to her would not create a risk of detriment to him. The minor remained a dependent child, but was placed with the mother, with family maintenance services.

By May of 2006, the mother filed a petition that requested termination of the dependency. The Department recommended termination of the case against the mother, and an award of sole legal and physical custody of the minor to her. The Department also proposed a visitation order for the father: no physical visitation, but contact through monitored letters or weekly telephone calls from a blocked number.

At a hearing on the mothers termination request on August 7, 2006, the mothers attorney expressed opposition to the Departments recommendation of telephone and letter visitation, or any contact whatsoever between the father and the minor. The mother requested that the father currently be denied any contact with the minor until he completed counseling and a parenting class. The minors attorney stated that the mothers fear of the father was genuine and sincere given the troublesome history of the case, and asserted that contact by the father with the minor may not be in the best interest of the child. The father was on parole in Montana, and could not leave the state to be present at the hearing. His attorney requested supervised visitation for the father quarterly through a neutral third party. The fathers attorney represented to the court that the minors therapist did not see detriment to the minor from limited contact with his father.

The juvenile court observed that the fathers status as a parolee in Montana without authority to leave the state for the next two years militated against supervised visitation. The court denied any visitation with the minor by the father, either in person or by telephone, but with the mothers agreement directed her to provide a post office box for the father to send any correspondence regarding the minor, and to maintain quarterly contact with the father to notify him of any change of address. Sole legal and physical custody of the minor was awarded to the mother, and the dependency proceeding was terminated.

DISCUSSION

The father argues that the trial court abused its discretion by refusing to grant him telephonic visitation with the minor as proposed by the Department. He complains that despite his status in the proceeding as a presumed father with inherent rights to visitation, the courts order virtually cut off any contact with the minor, as if his parental rights had been terminated. The father maintains that the court did not have authority to deny visitation rights absent evidence that contact was detrimental to the minor, and points out that the minors therapist did not see any detriment to the minor from the limited telephone and letter contact proposed by the Department. (Italics added.) He concludes his argument by asserting that the trial courts order was contrary to what the department recommended, and not based upon evidence that the limited visitation was in any way detrimental to the minor.

We begin our inquiry by observing that, In a dependency proceeding, the juvenile court has the power and responsibility to define a noncustodial parents right to visit with his or her child after the minor has been adjudged a dependent child of the court and has been removed from parental custody. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1373.) We agree with the father that visitation orders in dependency cases serve the vital interest of reunification. Courts have long recognized that, in the context of dependency proceedings, a lack of visitation may virtually assure[ ] the erosion (and termination) of any meaningful relationship between [parent] and child. [Citation.] In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504.) Visitation is an essential part of a reunification plan. In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows: [] (1)(A) Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. [Citation.] Visitation is no less crucial for an incarcerated parent receiving reunification services. [Citations.] Therefore, when reunification services are being provided, it is error to deny visitation with the parent to whom the services apply unless there is sufficient evidence that visitation would be detrimental to the child. (In re J.N. (2006) 138 Cal.App.4th 450, 458.)

On the other hand, visitation is not integral to the overall plan when the parent is not participating in the reunification efforts. (In re J.N., supra, 138 Cal.App.4th 450, 458459.) The basic differences between juvenile dependency and family law in custody matters also present the court with different rolesbetween determining the best interests of the childand determining the best interests of the child as between two parents. (In re John W. (1996) 41 Cal.App.4th 961, 971, italics omitted.) Because circumstances have placed a child at substantial risk of harm and since intervention by the juvenile court is deemed necessary to protect the child, visitation arrangements, albeit important, are but a partial component of a familys case plan. The family plan must focus on the childs best interests and on the elimination of conditions which led to the juvenile courts finding that the child has suffered, or is at risk of suffering, harm specified in section 300. (In re Moriah T., supra, 23 Cal.App.4th 1367, 13751376.)  Although both the family court and the juvenile court focus on the best interests of the child, the juvenile court has a special responsibility to the child as parens patriae and must look at the totality of the childs circumstances. It is one thing for a family law court to determine the best interests of the child as between two parents under title 4 of the Family Law Act (Civ. Code, 4600 et seq.). It is quite another for a juvenile court to determine the best interests of the child in a proceeding where there is the possibility both parents could lose custody or visitation rights. [Citation.] . . . [Citation.] (In re Michael W. (1997) 54 Cal.App.4th 190, 195.) Further,  The presumption of parental fitness that underlies the custody law in the family court just does not apply to dependency cases. Rather the juvenile court, which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions. [Citation, italics added.) (In re Chantal S. (1996) 13 Cal.4th 196, 206.) The juvenile court makes its custody determination without any preferences or presumptions. [Citation.) (In re John W., supra, at p. 972.)

Where, as here, the parent is not participating in reunification services and the juvenile court terminates its jurisdiction over a dependent child, Welfare and Institutions Code section 362.4 specifically authorizes the court to enter an order determining the custody of a minor whose parents are parties to a pending dissolution action, or as to whom a previous custody order has been issued by a superior court. [Citation.] Upon termination of its jurisdiction over such a minor, the juvenile courts custody order must be filed in the existing family court proceeding, where it remains in effect until modified or terminated by a subsequent order of the superior court. (In re Katherine M. (1994) 27 Cal.App.4th 91, 9697; see also In re Michael W., supra, 54 Cal.App.4th 190, 195; In re Robin N. (1992) 7 Cal.App.4th 1140, 1146.) An order entered pursuant to section 362.4 is commonly referred to as an exit order. [Citation.] The exit order is filed in any pending superior court action in which the custody of the child is at issue and if no such action is pending, the exit order can be used to open a file in the superior court of the county of residence of the parent who has been given custody of the child. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 269.) Juvenile court exit ordersand one must remember that section 362.4 presupposes an ongoing family law caseare in the nature of pendente lite orders in family law. (In re John W., supra, 41 Cal.App.4th 961, 973, italics and fn. omitted.)

As with other visitation orders in dependency proceedings, the statutory scheme  requires the court to consider the best interests of the child  (In re Candida S. (1992) 7 Cal.App.4th 1240, 1254) upon examination of the totality of the childs circumstances when fashioning visitation provisions in a section 362.4 exit order. (In re Michael W., supra, 54 Cal.App.4th 190, 195; see also In re Katherine M., supra, 27 Cal.App.4th 91, 9697.) The juvenile courts power under section 362.4 require[s] it to make an informed decision concerning the best interests of the child. (In re John W., supra, 41 Cal.App.4th 961, 972, emphasis added.) The statutory scheme does not demand an additional finding of detriment to the minor before visitation may be denied upon dismissal of a dependency proceeding to a parent whose reunification services have already been terminated. (In re J.N., supra, 138 Cal.App.4th 450, 459460.) [I]n making exit orders, the juvenile court must look at the best interests of the child. (In re John W., supra, at p. 973; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569.)

In our review of the juvenile courts determination, [w]e are left with the determination of whether the court abused its discretion when it found that telephone contact between the father and the minor would not be in the minors best interest. (In re J.N., supra, 138 Cal.App.4th 450, 459.)    []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.  [Citations.] [Citation.] The abuse of discretion standard warrants that we apply a very high degree of deference to the decision of the juvenile court. (Ibid.) A reviewing court will not disturb a courts ruling in a dependency proceeding   unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].   [Citations.] (In re K.D. (2004) 124 Cal.App.4th 1013, 1018.)

We agree with the juvenile court that weekly telephonic visitation with the father was not in the best interests of the minor under the facts presented at the conclusion of the dependency proceedings. Although the Department recommended telephone contact, the juvenile court was not bound to accept recommendations in the report. (See People v. Welch (1993) 5 Cal.4th 228, 234; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.) From the time the minor was detained in November of 2004, through the entirety of the dependency proceedings, the minor had no contact with the father. More than that, until the hearing on the mothers request for termination in August in 2006, the father had no contact with the dependency proceedings. He did not visit or telephone the minor; he did not, as far as we know, engage in any written communication with the minor; he did not appear in the action in person or through an attorney; he did not engage in reunification services in any form. When the exit order was issued, the father was on parole in Montana, with no prospect of leaving the state for the next two years. The fathers abuse of the minor was part of the reason the dependency proceeding was initiated in the first place, and the minor continued to express fear of his father. Domestic violence had also occurred, and the mother articulated both fear of the father and concern with the stability of the home if telephone contact was initiated. The court was also justified in concluding that logistical difficulties may be associated with arranging and supervising telephone visitation between the minor and the father through a blocked telephone number. (In re J.N., supra, 138 Cal.App.4th 450, 459460.)

Finally, the courts visitation order did not deny the father contact with the minor, and was not in any way final. The father may communicate with the minor in writing, and may seek relief or modification of the visitation order in family court upon a dual showing of a significant change of circumstances since the juvenile court issued the order under section 362.4, and the best interests of the child. (In re Marriage of David and Martha M. (2006) 140 Cal.App.4th 96, 102103; In re Katherine M., supra, 27 Cal.App.4th 91, 9697; In re Hirenia C. (1993) 18 Cal.App.4th 504, 518; In re Michael B. (1992) 8 Cal.App.4th 1698, 1705.) On this record, the courts no-telephone-contact order is not arbitrary and capricious. (In re J.N., supra, 138 Cal.App.4th 450, 459460.)

Accordingly, the judgment is affirmed.

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^[1]The minor agreed when an investigator asked him if the substance was crack.