In re H.H.

Filed 8/18/08 In re H.H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, Valerie Lynn Skeba, Referee. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

* * * * * *

INTRODUCTION

Appellant C.H. (father) appeals from the juvenile courts February 18, 2009 order terminating parental rights in 14-year-old H.H. and 10-year-old J.H. under Welfare and Institutions Code section 366.26.^[1] Father contends that the juvenile court abused its discretion in refusing his request to have H.H. testify regarding her desire to be adopted by her maternal grandparents, and therefore the order terminating parental rights must be reversed. We find that even if H.H. should have been allowed to testify, the absence of her testimony caused no prejudice, in view of the other evidence that was before the trial court.

Father also contends that the juvenile courts visitation orders of May 2008 and July 2008 must be reversed because the juvenile court inappropriately delegated discretion to the minors and H.H.s therapist. We hold the July 2008 order is not appealable and the appeal from the May 2008 order has been forfeited.^[2] Even if the orders were reviewed on the merits, the orders did not improperly delegate discretion for visitation to the minors or H.H.s therapist.

FACTS AND PROCEDURAL HISTORY

On November 10, 2008, this court denied fathers petition for extraordinary writ challenging the juvenile courts order terminating his reunification services and setting the selection and implementation hearing for both children ( 366.26). (C.H. v. Superior Court (Nov. 10, 2008, B209340) [nonpub. opn.] (prior opinion).) We adopt and quote here the factual and procedural background from the prior opinion:

1. Facts Prior to Writ Denial

Father and mother were divorced in Tennessee in 2001.^[3] Sometime after separating from father, mother moved to California. Pursuant to a Tennessee child custody order, the children resided with their mother during the school year and visited their father in Tennessee during the summer and on holidays. []  . . .  []

. . . In June 2005, the Department [of Children and Family Services (Department)] detained the children from mothers custody after receiving reports about [mothers] drug problems . . . . The Department placed the children in foster care and filed a dependency petition on their behalf.

Both parents appeared at the detention hearing. The juvenile court upheld the detention and ordered that the children remain in foster care. []  . . .  []

[Father admittedly had a long criminal history and admitted to using drugs including marijuana, cocaine, crystal methamphetamine, and mescaline.] Father claimed he stopped using drugs in 1995 when he moved to Tennessee. []  . . .  []

At the beginning of July 2005, after father tested negative for drugs, the juvenile court authorized father to take the children to Tennessee. []  . . .  []

In November 2005, the juvenile court ordered the Department to initiate an investigation concerning father with Tennessee authorities under the Interstate Compact on Placement of Children (ICPC) (Fam. Code,  7900 et seq.).

In January 2006, the Department submitted a report, which included an update concerning the ICPC investigation. . . . []  . . .  []

The Department acknowledged that father had a serious criminal record but noted no recent convictions. And although father was unemployed, he was able to provide for the children. Therefore, the Department recommended that the children remain with father. It also recommended that jurisdiction be transferred to the Tennessee dependency court.

. . . The [Tennessee Department of Childrens Services (TDCS)] recommended that the children be remanded back to the care of [the Department].

In January 2006, the juvenile court ordered that the children continue in their placement with father.

In June 2006, the Department asked the court to order that the children be present in court for the next scheduled hearing in July. The court granted the Departments request.

The children returned to California and stayed with their maternal grandfather. After their arrival, the Department social worker interviewed them. H.H. disclosed information she claimed she had not provided earlier because she knew father was listening to her telephone conversations with the social worker. According to H.H., she found a drug pipe on fathers coffee table, and when fathers friends came over, father and the friends would go into fathers room with the pipe. H.H. said that when father gets mad[] at her‑-which apparently happens on a regular basis‑-he sends her to her room for long periods of time. She reported that father only smacked her on her hand, but could not recall how many times this occurred. H.H. said she wanted to live with mother, though she still expressed her love for father. J.H. stated he never saw father hit H.H. He noted that father yells sometimes when he loses his keys and he is always losing his keys. He stated that father has been sleeping often since he hurt his foot and, as a result, J.H. was not getting dinner a lot of the time. J.H. wants to be with both his parents and could not make up his mind with whom he wished to reside.

In July 2006, the juvenile court ordered that the children remain with their maternal grandfather.^[4] The court also ordered the Department to attempt to authenticate a letter from the TDCS that father had provided to the court that day.^[5] In late August 2006, the Department reported to the court that the letter was forged.

The Department learned that the TDCS had denied placement of the children with father through the ICPC. The Department recommended that the children be returned to the home of mother with continued Department supervision. []  . . .  []

[Prior to a contested six-month review hearing] in January 2007, the Department confirmed that law enforcement authorities in Tennessee raided fathers trailer in December 2006, following a five- to six-month investigation. Father, his brother, and a roommate of father had been involved in manufacturing crystal meth. During the raid, authorities found drug paraphernalia and meth chemicals. They also seized, among other things, fathers computer and found a fake drivers license utilizing the personal information of daughter H.H. The childrens bedrooms tested higher than the other rooms for meth, and fathers room tested positive for cocaine and crystal meth. However, the children had not resided in the trailer for approximately six months. []  . . .  []

[T]he Department filed a subsequent dependency petition ( 342) based on the recent revelations concerning the drug manufacturing material found in fathers home. The juvenile court formally upheld the childrens detention from father in late January 2007. []  . . .  []

In May 2007, the juvenile court sustained the subsequent dependency petition involving father and ordered the Department to provide father with reunification services. The court ordered father to attend a drug rehabilitation program with random drug testing and to attend individual counseling to address case issues. The children were to remain placed with their maternal grandparents, while both parents were permitted monitored visits. []  . . .  []

[As of the six-month review hearing, father was in compliance with his plan.]

The children were doing well in their placement with the maternal grandparents and said they did not want to live with father, but would like to visit him.

At the conclusion of the six-month review hearing, the juvenile court ordered six additional months of services for father.

Both children were doing well with their maternal grandparents, who were willing to adopt them. The children spoke to father twice per week by phone. They stated they would like to visit with father if he was drug free, though H.H. stated she wanted any visits to be monitored.

The Department recommended terminating reunification services for father and scheduling a hearing for the selection and implementation of a permanent plan for the children. []  . . .  []

At the [12-month review hearing in] May 2008 . . . , the maternal grandfather stated he had a note from H.H., who had issues with father when she was in Tennessee. The grandfather stated H.H. did not want to see father. In response to a request from fathers counsel that father be allowed to visit with the children while he was in California, the court authorized father to have monitored visits with J.H. and ordered that any visits with H.H. take place in a therapeutic setting. The court also ordered counseling for H.H.

Shortly before the contested hearing in July, the Department reported that father had completed court-ordered reunification services. Fathers therapist in Tennessee advised that father had completed 16 individual counseling sessions, as well as parenting and substance abuse programs. Since the last court hearing, father had maintained almost daily contact with the Department social worker.

Two Department social workers visited the maternal grandparents home in June and met with the children. H.H. stated very emphatically that she did not want anything to do with father. She wanted to continue living with her grandparents. J.H. also wanted to live with his grandparents, though he stated he wanted to visit with his father. []  . . .  []

[At the contested 12-month review hearing held on July 15, 2008, the court identified whether the children could safely be returned to fathers custody as the only issue to be determined.]

No party called any witnesses, and the contested hearing proceeded based solely on various Department reports, which the juvenile court admitted into evidence.

In closing arguments, fathers counsel argued that father had complied with the case plan and the children should be returned to his custody. Fathers counsel never questioned the reasonableness of the services father received, though he noted that father had not yet had any conjoint counseling sessions with H.H.

The juvenile court then found that returning the children to fathers custody would create a substantial risk of detriment to their physical/emotional health and safety. The court acknowledged that father had complied with the case plan, but it noted that the children had issues with father and did not want to live with him. The court explained: This is not children willfully refusing to go to a parent that they just dont like. These children have serious issues about what has happened to them. And because father is ready to parent them does not necessarily mean that the children are ready to be parented by father. The court also noted that [t]his is a case where we would need supervision [through the ICPC] given the events that happened in Tennessee. Because the state of Tennessee had already declined to approve supervision under the ICPC, there was a real question whether such supervision would be approved.

The court found the Department had provided reasonable reunification services to father and father had complied with the case plan. The court also found there was little likelihood the children could be returned to father by the 18-month review date, which was only two weeks away. The court terminated reunification services for father and scheduled a hearing for the selection and implementation of a permanent plan for the children.

Father filed a writ petition challenging the juvenile courts order. He claim[ed] substantial evidence [did] not support the juvenile courts findings that (1) returning the children to his custody would place them at risk, and (2) father received reasonable reunification services. (Fn. omitted.)

As noted, this court denied fathers petition for extraordinary writ in November 2008.

2. Facts Following Writ Denial

When the juvenile court terminated fathers reunification services on July 15, 2008, it ordered that H.H. be in conjoint counseling with father and J.H. be made available for visits and telephone contact with father. Following that hearing, the childrens relationship with father became progressively tenuous and, over the course of the succeeding months leading up to the contested section 366.26 hearing, the children had increasingly unsuccessful monitored telephone visits with father.

H.H. and J.H. had been placed with their prospective adoptive caregivers, the maternal grandparents, since June 2006. According to the Departments adoption report, both children were doing above average school work and were actively involved in extra school activities. The maternal grandparents wanted to adopt the children, and mother wanted to relinquish her parental rights so that the children could be adopted. Both children viewed the maternal grandparents as their primary caregivers with whom they felt happy, safe, and secured [sic]. H.H. stated that she wanted nothing to do with father.

Father did not succeed in bonding with the children and any relationship with them deteriorated to such an extent that J.H. did not want to talk to father on multiple occasions and eventually would only say Hello during monitored telephone visits with father and the social worker. After one such occasion, father told the social worker that he did not want to set up a telephone visit with J.H. for the following week because there is no point to it. H.H. never became comfortable having therapeutic visits with father, and, as of the permanency planning hearing, visitation with father had yet to occur. By December 2008, J.H. and H.H. refused to say anything beyond Hello to father during the monitored phone visits.

The section 366.26 permanency planning hearing was held on February 18, 2009. The juvenile court accepted the Departments reports into evidence.

After receiving the reports, the court asked fathers attorney if she was going to call any witnesses. Fathers counsel stated she wished to call H.H. as well as father as witnesses. The court inquired whether the childs counsel had spoken to her. H.H.s counsel indicated she had, and that [H.H.] has informed me that she would like to be adopted by her grandfather. She does understand adoption and what it means. And she does wish to remain with her grandfather until shes 18.^[6] Fathers attorney noted her objection to the courts refusal to allow her to call H.H. as a witness.

Fathers attorney then called father as a witness, with respect to the parent-child relationship exception to the termination of parental rights. (See  366.26, subd. (c)(1)(B)(i).) In describing his relationship with his children, father stated, At this time I havent been able to have relations with them. Father had not spoken to H.H. in six or seven months aside from an aborted attempt to speak to her the week before the hearing. Father had tried to speak with J.H. for the past six months, but testified the last time father had spoken to J.H. was the month before.

Father testified that when the children had lived with him they did everything together, but the relationship changed when the children were placed with the maternal grandparents. Father stated that he loved his children and wanted to be a part of their lives.^[7]

During argument, the childrens attorney, the Department, and mothers attorney all requested that parental rights be terminated. Fathers attorney conceded that fathers relationship with his children was nonexistent.

The juvenile court terminated parental rights. The court found that fathers testimony had overlook[ed] quite a few things. The court stressed that the children were removed from father in the midst of a drug raid, which, in and of itself, was pretty traumatic. The court noted large amounts of residue methamphetamine were found in [the childrens] room. The court also explained that it was only when [t]he children were . . . brought back to California, [that the children] began providing information about why they were fearful of their father and [that they] were afraid to talk about it to the social worker over the phone. The court concluded that father was totally overlooking what effect his actions have had on his children. The court ruled the parent-child exception did not apply.

The court found, by clear and convincing evidence, that the children were adoptable.

Father timely appealed from the order of February 18, 2009, terminating parental rights. His notice of appeal also purported to appeal from the prior order of July 15, 2008, setting visitation.^[8]

STANDARD OF REVIEW

We review the juvenile courts exclusion of H.H.s testimony for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.) The reviewing court should only interfere if the juvenile court made an arbitrary, capricious, or patently absurd determination, and if, under all of the evidence viewed most favorably in support of the juvenile courts action, a reasonable court could not have made the order that it did. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

DISCUSSION

1. H.H.s Testimony

The juvenile courts discretion in refusing to require the attendance and testimony of a child derives from a recognition of the overriding objective of the dependency hearing ‑‑ to preserve and promote the best interests of the child. (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089.)

Section 366.26, subdivision (c)(1)(B)(ii) permits the court to find termination of parental rights detrimental to the child if a child 12 years of age or older objects to termination of parental rights. Additionally, section 366.26, subdivision (h)(1) states that the court shall consider the wishes of the child and shall act in the best interests of the child before terminating parental rights.

Contrary to appellants contention, the childs wishes concerning termination of parental rights need not be established solely through direct testimony of the child at the section 366.26 hearing. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334.) The childs wishes may be ascertained through various means, such as informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings. [Citation.] (In re Leo M. (1993)19 Cal.App.4th 1583, 1591, fn. omitted.) The court is also permitted to infer a childs wishes regarding adoption by considering the childs feelings towards her biological parents and prospective adoptive parents. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.)

In In re Jennifer J., the court held that it was within the juvenile courts discretion to refuse to require the minor to testify at the section 366.26 hearing. (In re Jennifer J., supra, 8 Cal.App.4th at p. 1089.) Attempting to establish the beneficial relationship exception, the parents requested Jennifers testimony at the hearing, arguing that she would state a desire for continued parental contact and would exhibit some level of bonding. (Id. at p. 1085.) The juvenile court refused to call Jennifer, believing it would be a damaging experience for her. (Ibid.) Affirming, the appellate court held that when the childs desires and wishes can be directly presented without live testimony, where the issues to be resolved would not be materially affected by the childs testimony, and where it is shown that the child would be psychologically damaged by being required to testify . . . the juvenile court judge has the power to exclude such testimony. (Id. at pp. 1088-1089.)

In this case, the juvenile court had before it the social workers reports, the statement from H.H.s attorney, and fathers testimony. The reports clearly indicated that H.H. no longer had a relationship with father, had not wanted to speak to father on the phone for months, and did not feel safe visiting with father even in a therapeutic setting. H.H. wanted to be adopted and H.H. was developing normally and healthily in the maternal grandfathers care, where she felt happy, safe, and secured [sic]. The social workers reports indicated, and H.H.s attorney reiterated, H.H.s desire to be adopted.

In refusing to call H.H. as a witness, the court reasoned: So I dont think putting a young child in that position to get information that her attorney is telling us, we already know, plus its well documented in the reports . . . . [] I think its, basically, just traumatic for her to have to testify at this type of hearing. Father contends that the juvenile court did not employ the proper analysis to determine detriment, and there was no substantial evidence supporting a conclusion that presenting the minors testimony would be detrimental to the minor. (Boldface and capitalization omitted.) However, the juvenile court did consider the trauma that H.H. would suffer if she testified in her fathers presence that she wanted to be adopted.

Father had the opportunity to demonstrate during his testimony that continuation of the parent-child relationship would promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (In re Jaime R. (2001) 90 Cal.App.4th 766, 773.) The juvenile court found that father utterly failed to meet this burden.

Even if, as father contends, the juvenile court erred in refusing to call H.H. as a witness, any error in doing so would have been harmless. (See People v. Watson (1956) 46 Cal.2d 818, 835.) Nothing in the social workers reports, in H.H.s attorneys statement, or even in fathers testimony suggested that H.H. did not want to be adopted. On numerous occasions and in countless interviews, H.H. expressed a strong desire to remain with her maternal grandparents and expressed no interest in reunifying with father.

2. Visitation Orders

Father contends if the order terminating parental rights is reversed, the July 15, 2008 visitation order must be reversed as well. We disagree. The July 2008 visitation order is not appealable. Section 366.26, subdivision (l)(1) provides, An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [] (A) A petition for extraordinary writ review was filed in a timely manner. [] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by adequate record. [] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits. Subdivision (l)(2) of section 366.26 further provides, Failure to file a petition for extraordinary writ review . . . , to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section. (Italics added.) The visitation order here was made in conjunction with the order setting the section 366.26 hearing. Although father sought writ review of the order setting the section 366.26 hearing, his petition did not challenge the visitation order made concurrently. Father thus has not shown the necessary factual predicate for appealing the July 2008 visitation order.

Furthermore, father forfeited any appeal from the May 2008 visitation order. In dependency cases, the order entered at a dispositional hearing under section 366.21, subdivision (f) is a final judgment. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250.) Because the May 2008 order was issued during the section 366.21, subdivision (f) dispositional hearing, it was appealable when it was made. (See Cal. Rules of Court, rule 8.400(d)(1) [with exceptions not applicable here, notice of appeal must be filed within 60 days after rendition of judgment or making of order].)

Even if we were to review the orders on the merits, father still fails to demonstrate that the juvenile court improperly delegated discretion to minors and H.H.s therapist regarding whether visitation would occur. The May and July visitation orders both stated that J.H. was to have monitored visits with father and that any further visits for father with H.H. were to be in a therapeutic setting. With regard to H.H., the juvenile court did not delegate discretion as to whether or not the visits would take place at all, but rather, qualified that the visits be in a therapeutic setting. A visitation order may validly delegate to a therapist limited discretion to determine when court ordered visitation should begin. (See In re Chantal S. (1996) 13 Cal.4th 196, 213-214 [an order that provided that visitation should be facilitated by the childs therapist and visitation could begin when the parents chosen therapist determined the parent had made satisfactory progress did not constitute an improper delegation of judicial authority to the therapists].) With regard to J.H., he was in fact participating in monitored telephone visits with father, although they were increasingly unsuccessful. It was father who did not want to set up a visit once J.H. lost interest in speaking to him because, as father said, there was no point to it.

DISPOSITION

The orders are affirmed.^[9]

FLIER, J.

We concur:

RUBIN, Acting P. J.

BIGELOW, J.

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

^[2] Although fathers appeal only includes the July 15, 2008 order, fathers brief and the Departments brief both discuss the identical May 2008 visitation order, which we find was forfeited.

^[3] Mother is not a [party to] this [appeal]. Therefore, we focus primarily on the facts relating to father.

^[4] The juvenile courts minute order states that the children are to stay with the maternal grandfather. Subsequent orders refer to placement of the children with the maternal grandfather, while others refer to placement with both maternal grandparents. Because both grandparents reside at the same residence, we will refer to placement with both grandparents.

^[5] The letter, purportedly signed by a TDCS representative, stated that two case workers had prepared reports concerning father, and [t]here was nothing in this reports [sic] to cause any concern of endangerment. The author purported to express the feeling that [s]omewhere . . . there has been a miscommunication of the assessment done on [fathers] home.

^[6] The following colloquy transpired:

[Fathers Counsel]: Yes, Your Honor. I would like to call [H.H.] and also the father. [H.H.] is 14. And I believe I have a right to question whether she would like to be adopted or not.

THE COURT: Well, I think she has an attorney who can give us that information.

[Childrens Counsel]: Yes.

[Fathers Counsel]: Your Honor, . . . her attorney, though, I cannot cross-examine ‑‑

THE COURT: Well ‑‑

[Fathers Counsel]: ‑‑ her attorney.

The Court: -- I dont think youre necessarily entitled to cross-examine a 14 year old at this type of hearing. [] [Childrens counsel], have you spoken to [H.H.]?

[Childrens Counsel]: Yes, I have, Your Honor. And she has informed me that she would like to be adopted by her grandfather. She does understand adoption and what it means. And she does wish to remain with her grandfather until shes 18.

THE COURT: All right. I dont really see any reason to dispute that. Its pretty clear from all the reports. So I dont think putting a young child in that position to get information that her attorney is telling us, we already know, plus its well documented in the reports; so Im not going to permit you to call [H.H.] [] I think its, basically, just traumatic for her to have to testify at this type of hearing. And I have no reason to believe that [the childrens attorney] would provide us with incorrect information. In fact, my recollection is is that [H.H.] has been refusing to visit with father for some time now.

^[7] Fathers attorney attempted to call the maternal grandfather as a witness, but cited in her offer of proof only the social workers reports. The juvenile court found the offer of proof to be too vague, and it found no reason to believe that the maternal grandfather was influencing the children.

^[8] The notice of appeal did not refer to the May 2008 visitation order, although the parties discuss it in their briefs and it is identical to the courts July 2008 visitation order.

^[9] Father raises other issues, none of which is well-taken.