In re E.B.
Filed 8/9/12 In re
E.B. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
In re E.B. et al., Persons Coming
Under the Juvenile Court Law.
SAN JOAQUIN COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
E.B.,
Defendant and Appellant.
C070157
(Super.
Ct. No. J04567)
E.B., father of
12-year-old El.B., five-year-old R.B. and three-year-old E.B., Jr., appeals
from a juvenile court order awarding
custody to mother, denying visitation for father, and terminating the
dependency.
title="">[1]
On appeal, father
contends the denial of visitation lacks evidentiary support and exceeds the
juvenile court’s discretion. We disagree
and will affirm the order.
BACKGROUND
In March 2007,
mother and father were arrested for possession of controlled substances for
sale, possession of a firearm by a convicted felon, conspiracy to commit a
misdemeanor, child endangerment, and a special allegation of a prior narcotics
conviction. El.B. and R.B. were detained
as a result of the arrests. A petition
was filed alleging that El.B. and R.B. came within the provisions of Welfare
and Institutions Code section 300, subdivisions (b) [failure to protect] and
(g) [no provision for support].
name="_ftnref2" title="">[2]
The July 2007
disposition report stated that, due to his incarceration, father had not
visited with the children. The report
also stated that, after he was released on bond in June 2007, father had not
arranged for visitation or provided contact information to the social
worker.
The reports for
the six- and 12-month reviews indicated that the parents participated in a
reunification case plan. Father began
visiting the children in October 2007.
In May 2008, the children were returned to mother. In July 2008, father was incarcerated on the
charges that had prompted the children’s removal. Thereafter, mother transported the children
to visitation with father at the San Joaquin County Jail. The dependency was dismissed in January
2009.
In June 2010, a
second petition was filed alleging that El.B., R.B. and then-18-month-old E.B.,
Jr., came within the provisions of section 300, subdivisions (b), (g) and (j)
[abuse of sibling]. The petition alleged
that the children had been taken into protective custody after the parents were
arrested on criminal charges related to drug and weapons sales. The petition added that El.B. reported
hearing gunshots in his neighborhood, did not feel safe in the neighborhood,
and was aware that the parents sold marijuana.
The report for the
jurisdiction and disposition hearing noted that father had been convicted on
charges related to drugs, weapons, and child endangerment, and was sentenced to
state prison for four years. The report
opined that father’s incarceration would preclude him from completing a crucial
component of any reunification plan, i.e., demonstrating that, following his
release from custody, he willingly would refrain from all narcotics
activities. The report recommended that
father not receive reunification services because such services would be
detrimental to the children.
Father submitted
on the issue of jurisdiction and the matter was continued to December 2010 for
a contested disposition hearing.
At the December
14, 2010, contested disposition hearing, the juvenile court found by clear and
convincing evidence that reunification services would be detrimental to the
children based on the following facts:
father is incarcerated for a drug-related crime; he has a 25-year prison
history of incarcerations for narcotics
activities, and the children’s safety in the home can be guaranteed only by
preventing father’s return home.
Reunification services were bypassed pursuant to section 361.5,
subdivision (e)(1).
The May 2011
status review report indicated that father was still serving his prison
sentence and had not been in contact with the social worker regarding
visitation or the well-being of the children.
Father waived transportation to the review hearing where the juvenile
court ordered the children returned to mother’s residence.
The November 2011
status review report reiterated that father was serving a
offered reunification services. The
report noted that the children were at home with mother and recommended that
the dependency case be dismissed.
Father was present
at the January 5, 2012,
contested review hearing. Following a
hearing, the juvenile court appointed new counsel for father. The juvenile court then explained, “the
proposed custody order is that all three children, mother will have legal and
physical custody to her. Father will not
have visitation at this time. At some
later date, father can always go to family court and request visitation. But that’s what the recommendation is at
present.”
The juvenile court
took a brief recess while father discussed the matter with his new
counsel. Thereafter, counsel told the
juvenile court, “I have advised [father] regarding the custody orders. He is objecting to the mannerisms [
him. He does not have legal
custody. He does not have physical
custody. But he will submit and he just
wants his objection noted for the record.”
The juvenile court noted father’s objection and advised him that a “big
part of the reason this Court is ordering that is because of his custodial
situation at this point in time.” The
juvenile court awarded legal and physical custody to mother and dismissed the
dependency proceeding.
DISCUSSION
Father contends
the juvenile court’s order denying him visitation is not supported by
sufficient evidence that visitation would place the children in jeopardy or be
detrimental to them. In a separate
argument, father contends the denial of visitation exceeded the scope of the
court’s discretion. Neither argument has
merit.
Section 362.4 provides
in relevant part: “When the juvenile
court terminates its jurisdiction over a minor who has been adjudged a
dependent child of the juvenile court prior to the minor’s attainment of the
age of 18 years, and . . . an order has been entered with regard to
the custody of that minor, the juvenile court on its own motion[] may issue
. . . an order determining . . . visitation with[] the
child. [¶] Any order issued pursuant to this section
shall continue until modified or terminated by a subsequent order of the
superior court. . . . [¶] If no action is filed or pending relating to
the custody of the minor in the superior court of any county, the juvenile court
order may be used as the sole basis for opening a file in the superior court of
the county in which the parent, who has been given custody, resides.” (See In
re Michael B. (1992) 8 Cal.App.4th 1698, 1705; In re Roger S. (1992) 4 Cal.App.4th 25, 29-31.)
In this case, mother
completed her case plan and the children were returned to her. Father does not dispute that section 362.4
authorized the juvenile court to make an exit order at the conclusion of the
proceedings.
Father visited the
children during the 2007 dependency proceedings, but he did not participate in
the 2010 dependency proceeding and did not visit the children at any time
during its pendency. Nor did he request
visitation at any time prior to the juvenile court’s exit order. Thus, prior to the exit order, the issue of
visitation with father never arose, and father does not claim the juvenile
court erred by failing to address it at any of the prior hearings.
Instead, father argues
there was no evidence that visitation would be detrimental to the children or
jeopardize their safety. Father notes
that, because of this lack of evidence, the juvenile court never made a finding
that
visitation would have any of the stated effects.
The unarticulated
premise of father’s argument is that a finding of detriment is an essential
prerequisite to the order denying him visitation. Father relies by analogy on section 362.1,
subdivision (a), which applies to “any order placing a child in foster care,
and ordering reunification services.”
This statute mandates visitation “as frequent as possible, consistent
with the well-being of the child,” and provides that “[n]o visitation order
shall jeopardize the safety of the child.”
(§ 362.1, subd. (a)(1) (A) & (B); see In re Dylan T. (1998) 65 Cal.App.4th 765, 775 [considering
visitation with incarcerated parent during reunification period].)
However, section
362.1’s stated purposes, to maintain parent-child ties and to “provide
information relevant to deciding if, and when, to return” the child to the
parent, are not applicable where, as here, reunification services have not been
ordered. (§ 362.1, subd. (a);
450, 458.) Nothing in section 362.1
supports father’s argument that, in the present context, a finding of detriment
is an essential prerequisite to an order denying visitation.
Where, as here,
reunification services have not been ordered, the juvenile “court may continue
to permit the parent to visit the child unless it finds that visitation would
be detrimental to the child.”
(§ 361.5, subd. (f).) This “permissive
language” (“may”
reflects the “reality” that “visitation is not integral tothe overall plan when the parent is not participating in the reunification
efforts.” (In re J.N., supra,
138 Cal.App.4th at pp. 458-459.)
Father argues that,
absent a showing of detriment caused by visitation, ordinarily it is improper
to suspend or halt visitation even after the end of the reunification
period. (Citing In re Luke L. (1996) 44 Cal.App.4th 670, 679, citing
§ 366.21, subd. (h).) However,
“contrary to [father’s] contention, section 361.5, subdivision (f) does not
dictate a particular standard the juvenile court must apply when exercising its
discretion to permit or deny visitation between a child and a parent who has
not been receiving reunification services.
The Legislature instead has left this determination to the court’s
discretion for the narrow group of parents described in section 361.5,
subdivision (f), who have been denied reunification services at the
outset. (Compare § 366.21, subd.
(h) [detriment to the child standard applies to visitation requests for parents
who have been receiving reunification services].)” (In re
J.N., supra, 138 Cal.App.4th
at p. 459.)
Because section
361.5, subdivision (f) is permissive, and section 362.1 does not make detriment
an essential prerequisite to an order denying visitation, any dearth of
evidence of detriment to the children does not entitle father to reversal of
the no-visitation order.
Respondent
County Human Services Agency (Agency) argues that denial of visitation was
within the juvenile court’s sound discretion because father “continued to
maintain a criminal lifestyle which posed a risk of detriment to the
minors.” In his reply, father faults the
Agency for failing to provide legal authority for its argument. Nevertheless, father has failed to show that
the juvenile court’s order was an abuse of discretion.
Father argues
that, prior to issuing the no-visitation order, the juvenile court was required
to consider “evidence of a change in circumstances warranting a change in
visitation.” However, as father
concedes, there was no prior visitation order regarding father and the
children. Thus, the juvenile court was
not required to consider in the abstract how circumstances may have changed
throughout the course of the proceedings.
DISPOSITION
The order is
affirmed.
MAURO , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1] Mother is not a party to this appeal.
name="_ftn2" title="">[2] Undesignated statutory references are to the
Welfare and Institutions Code.
