In re Baby Boy T.

Filed 6/14/07 In re Baby Boy T. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, Gary L. Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Introduction

Andrea T. (mother) is the mother of Baby Boy T., now one and one-half years of age. In October 2006, the juvenile court terminated reunification services and set a date for a permanency hearing. At the time, the court also found further visitation with mother would be detrimental to Baby Boy T., since mother had missed visits and failed to perform any part of her case plan for four months.

Mother appeared at a nonstatutory notice review hearing in November 2006, and asked that visitation be reinstated. The court advised mother it could not reinstate visitation at a nonstatutory hearing without notice to all parties, and encouraged her to file a petition for modification under Welfare and Institutions Code section 388. (All further statutory references are to the Welfare and Institutions Code.) Mother appeals from the juvenile courts refusal to grant her the visitation she requested.

We conclude the juvenile court did not err in refusing to consider mothers request for visitation without providing notice to all parties. The original order finding further visitation with mother would be detrimental to Baby Boy T. given her lack of visitation and participation in the case plan, and thus terminating visitation, was not improvidently granted; indeed, mother never challenged that order. Further, the hearing at which mother made her request was nonstatutory and was not scheduled for the purpose of reconsidering visitation or services; it was intended only to ensure mother and Herbert P. (father) had received notice of the permanency hearing date. The juvenile court could not have modified its earlier order regarding visitation and reunification services absent notice. We therefore affirm.

Statement of Facts

Baby Boy T. was detained by the Orange County Social Services Agency (SSA) immediately after his birth in January 2006. Baby Boy T.s half siblings, Breanna D., Desmond D., Naomi D., and Andrew D., had been declared dependents of the juvenile court in South Dakota in November 2005; mother had fled to California before Baby Boy T.s birth to avoid a custody order naming her unborn child as a dependent of the South Dakota court as well. Baby Boy T. was placed with his maternal aunt, Kim H.

At the detention hearing in January 2006, the juvenile court ordered mother to have one hour of monitored visitation per week; SSA was authorized to liberalize the visitation. Mother, however, returned to South Dakota to be with Baby Boy T.s half siblings, and did not begin her visits with Baby Boy T. until March. Her visitation with Baby Boy T. was increased incrementally, up to five hours weekly in three monitored visits. While she was in California, mother visited with Baby Boy T. as allowed by court order. During visits, she was loving and attentive, and acted appropriately.

Mother returned to South Dakota, and Kim took Baby Boy T. to visit mother there during the last three weeks of May 2006. Kim reported that mother was receiving more than five hours of visitation per week, and the visits were going well.

On April 26, 2006, a second amended petition was filed, in which it was alleged: (1) Baby Boy T.s half siblings had been abused and neglected; (2) mother had unresolved drug problems and mental health problems; (3) at birth, Baby Boy T. tested positive for opiates and barbiturates, and suffered from severe withdrawal symptoms; (4) mothers drug use during pregnancy and failure to obtain proper prenatal care had caused Baby Boy T. trauma and physical harm; (5) mother had a history of abusive relationships; (6) mother currently had an outstanding warrant for her arrest for burglary, petty theft, and possession of a controlled substance; (7) father had unresolved problems with substance abuse, and knew or should have known that mother had failed to receive prenatal care and had abused drugs during her pregnancy; and (8) Baby Boy T. had suffered or was at a substantial risk of suffering serious physical harm or illness as a result of mothers and fathers failure to adequately supervise him and their willful or negligent failure to adequately care for him. The juvenile court sustained the amended petition on June 22, 2006, after a contested jurisdiction/disposition hearing. The court found Baby Boy T. was a dependent under section 300, subdivision (b) (failure to protect). Mother did not appear at the jurisdiction/disposition hearing.

Mothers case plan included weekly monitored visitation. During the six‑month review period, however, mother did not visit Baby Boy T. Mother refused to communicate with Kim regarding Baby Boy T.s welfare because she was angry with Kim. Mother also refused to sign or participate in her case plan because she believed she had done nothing wrong.

Mother asked SSA to transfer Baby Boy T.s case to South Dakota and to place Baby Boy T. with his maternal grandmother. The maternal grandmother, however, reported she was unable to care for Baby Boy T.

In August 2006, SSA learned that mother had checked herself into a hospital psychiatric unit. In September, the South Dakota court terminated mothers parental rights to Baby Boy T.s four half siblings.

At the six-month review hearing on October 12, 2006, the juvenile court in California terminated reunification services, set a nonstatutory notice review hearing for November 28, 2006, and set a hearing to select Baby Boy T.s permanent placement plan for February 7, 2007. Mother did not appear at the six‑month review hearing; her attorney did not know where she was. The juvenile court made the following statement on the record: Mothers contact is virtually nonexistent. For mother, its detrimental for mother to have any visits. This is the winddown time. The emphasis and focus [are] on the child, and we dont know where mother is. If she comes forward and find[s] some [section] 388 on that issue, Id be happy to hear that. No further visits between mother and Baby Boy T. were authorized.

Mother appeared at the notice review hearing on November 28, 2006, and requested that the court reconsider its earlier order barring further visits with Baby Boy T. SSA objected to the court making such a ruling in the absence of a section 388 petition. The court advised mother that she should file a petition for modification under section 388, since the notice review hearing was nonstatutory and notice was needed before mothers request could be granted. The court told mother if she filed a section 388 petition, it wont take a whole lot to get my attention. Im going to have to do it that way. We could get to that pretty quick, though, I think.

Mother did nothing for two months. On January 25, 2007, she submitted an ex parte Motion to Preserve Welf. & Inst. Code  366.26, Subd. (c)(1)(A) Exception; Request for Visitation. In that motion, mother advised the other parties she was moving the court for an order granting her request to reinstate visitation. All parties stipulated mother should receive one visit with Baby Boy T. before the permanency hearing. The court made the parties stipulation its order. Mother appealed from the order of the notice review hearing.

Discussion

In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. ( 366.21, subd. (h).)[1]

At the six‑month review hearing, the juvenile court made a finding of detriment if visitation were to continue, and therefore terminated reunification services and visitation. In addition to mothers presence in South Dakota and not in California, the court based its finding on mothers lack of contact during the review period, her utter failure to participate in her case plan, her lack of interest in the case, her failure to make any progress on the issues that brought Baby Boy T. into the dependency system, and her continuing insistence that she had done nothing wrong. Mother does not challenge this finding.

Mother argues, however, that once she returned to California, the courts grounds for terminating her visitation were eliminated, and the court therefore should immediately have revised its order.

Instead, the juvenile court advised mother it could only consider her request through a noticed section 388 motion. Mother argues the court erred, because the juvenile court always has authority to enter a new order or modify an order. The cases mother cites for this proposition are distinguishable. In Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 100, the juvenile court had ordered reunification services be provided to the father. The court later learned the father had been imprisoned for severe physical abuse of his four-month-old child, which resulted in the childs mental retardation. (Id. at pp. 102-103.) The court then granted a section 388 petition to modify the disposition order to deny the father reunification services. (Id. at p. 103.) The appellate court affirmed: We conclude that the juvenile court has the authority pursuant to section 385 to change, modify or set aside its prior orders sua sponte. [Citations.] Under this section, the juvenile court may modify an order that contains a clerical error, but may also reconsider the substance of a previous order the court considers to have been erroneously, inadvertently or improvidently granted. [Citations.] (Id. at p. 116.)In this case, the juvenile court did not improvidently or erroneously terminate mothers visitation, because at the time the order was made, mother was out of state and had not communicated with the court or SSA.

In San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 886, the juvenile court had initially ordered long-term foster care as the permanent plan for two dependent children. At a six-month status review hearing, the social services department asked the juvenile court to schedule a hearing to change the permanent plan to adoption, because the circumstances had changed and a prospective adoptive parent had been found for both children. (Ibid.) The court refused to schedule a hearing until the department filed a petition for modification. (Id. at pp. 886‑887.) The Supreme Court concluded the juvenile court erred, since California Rules of Court, former rule 1466(b) (now rule 5.740), required the juvenile court to conduct noticed hearings at six‑month intervals, at which changes to the permanent plan were required to be considered if the circumstances had changed. (Id. at pp. 887‑890.) The case does not stand for the proposition that the juvenile court has the authority to change an order regarding denial of visitation at a nonstatutory hearing without providing notice to the other parties. Here, the November 2006 hearing at which the juvenile court refused to entertain mothers verbal request for a change in the visitation order was not a statutorily required hearing.

Mother also argues the juvenile court imposed an unfair and undue burden on her by requiring her to file a section 388 petition, because such a petition put the burden on mother to establish changed circumstances. But if mothers foundational assumption were correct that the only reason visitation was terminated was the fact she was out of state then the burden to establish changed circumstances would not be too onerous.

Finally, mother claims the juvenile courts failure to grant her oral request for visitation caused her prejudice. Mother contends that if visitation had been reinstated between November 2006 and the permanency hearing set for February 2007, she could have reaffirmed the beneficial relationship with Baby Boy T. sufficient to permit her to assert an exception to termination of parental rights. ( 366.26, subd. (c)(1)(A).)

Assuming mother would have visited regularly and consistently during the three months before the permanency hearing, the juvenile court would still have had to consider the fact that from January to November 2006, mother completely missed seven and a half months of visitation. In the life of an infant, lack of visitation for one and a half months, followed by three months of visitation, followed by six months without visitation, followed by another three months of visitation, cannot be assumed to be regular visitation.

Additionally, mother fails to show she would have met the second prong of the section 366.26, subdivision (c)(1)(A) exception Baby Boy T. would so benefit from continuing a relationship with mother that it would make termination of parental rights detrimental to him. To overcome the preference for adoption and avoid termination of the natural parents rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Although mother appeared loving and affectionate during visits with Baby Boy T., there is no showing he had a substantial, positive emotional attachment to mother.

Disposition

The order is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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[1] The cases are split as to whether a courts order terminating visitation on the ground it would be detrimental to a dependent child is reviewed for substantial evidence (In re Mark L. (2001) 94 Cal.App.4th 573, 581 & fn. 5), or for an abuse of discretion (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1500). We need not resolve this issue of authority, because in this case the outcome does not depend on the standard of review employed.