In re Raymond H.

Filed 9/10/07 In re Raymond H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Jane A. Cardoza, Judge.

John L. Dodd, 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-

Raymonds father, Ronnie H., appeals from orders issued at a six-month postpermanency hearing held pursuant to Welfare and Institutions Code section 366.3, subdivision (d).^[1] His specific contention is that the juvenile court erred in failing to permit him to resume visitation with Raymond. We disagree and affirm the orders from which he appeals.

FACTUAL AND PROCEDURAL SUMMARY

The juvenile court first gained jurisdiction over Raymond in 1999 after it found true an allegation that his mother had failed to provide him with adequate food, clothing, or shelter.^[2] At the time, Ronnie was incarcerated.

A subsequent petition was filed by the Fresno County Department of Children and Family Services (the Agency) in 2000 shortly after Ronnie was released from jail. As a result of that petition, the juvenile court found true allegations that Raymond was at serious risk of physical harm because Ronnie was unable to supervise, protect, or provide adequate care or a safe home environment because of his extensive criminal history. The juvenile court also found Raymond was at risk of suffering serious emotional damage as a result of exposure to incidents of domestic violence between his mother and Ronnie.

At the disposition hearing, Raymond was placed in foster care, where he has remained. Ronnie initially was provided reunification services, but these services were terminated in 2001 when it was determined Ronnie would be not be able to reunify with Raymond. Also in 2001, visitation between Ronnie and Raymond was terminated because of Ronnies refusal to follow visitation rules and court orders.

In 2001, the juvenile court adopted a permanent plan of long-term foster care for Raymond, which, to date, has not changed. He appears to be doing well in his placement, both physically and mentally. Ronnies parental rights have not been terminated. His visitation rights, however, never have been reinstated.

This appeal is from an order made at a statutorily required six-month review hearing held February 27, 2007. ( 366, 366.3.) As pertinent here, the status review report stated that Raymond had expressed interest in resuming visitation with Ronnie. The report recommended that Raymond and Ronnie have supervised visits, but otherwise recommended maintenance of the status quo.

The issue of visitation was addressed at the review hearing. Raymonds counsel objected to the proposed visitation with Ronnie on the grounds that the report provided no factual support for the recommendation other than Raymonds stated desire to resume visits with his father.

Ronnie requested visitation begin consistent with the Agencys recommendation. He pointed out that Raymond was now 12 years old and had completed counseling.

The juvenile court denied immediate visitation, but instead recommended that the Agency assess the situation, including a recommendation by Raymonds counselor. The assessment was to be completed within 30 days, with the results transmitted to all counsel.^[3] The juvenile court instructed the Agency to file a motion if it believed that visitation between Raymond and Ronnie should resume after the assessment was completed.

DISCUSSION

I. Refusal to Permit Visitation

Ronnies primary contention on appeal is that he should have been granted supervised visitation consistent with Raymonds request and the recommendation of the Agency. He makes several arguments, each of which misses the point.

Generally, visitation between a parent and child who is in foster care should be as frequent as possible, consistent with the well-being of the child. ( 362.1, subd. (a)(1)(A).) The juvenile court may deny visitation if it concludes that visitation between the parent and child would be detrimental to the child. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) The decision to deny Ronnie visitation with Raymond was made several years ago and is not an issue in this appeal. Instead, the issue is whether the juvenile court erred in refusing to reinstate visitation between Ronnie and Raymond. We review this issue, as in all issues of visitation, for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Julie M. (1999) 69 Cal.App.4th 41, 48-51; In re Megan B. (1991) 235 Cal.App.3d 942, 953.)

The only evidence to support resumption of visitation between Raymond and Ronnie was Raymonds stated desire to visit with his father. The problem, of course, is that there was no evidence that the conditions that caused suspension of visitation in the first place, Ronnies behavior, had changed. If Ronnie is unwilling to modify his behavior while visiting Raymond, then permitting visitation will continue to be detrimental to the child. Until there is evidence that Ronnie is able and willing to modify his behavior, it would be an abuse of discretion to permit visitation. Obviously, since there was no evidence that Ronnie was willing or able to modify his behavior, the trial court did not abuse its discretion in refusing to permit the resumption of visitation.

II. The Late Report

Almost as an afterthought, Ronnie also argues that the orders after the hearing must be vacated because he was not provided with the Agencys report in a timely manner. The Agency argues Ronnie has forfeited the issue.

The report was filed on the day of the hearing. The Agency concedes the report was late.

At the hearing, there was only brief mention of the report. When Ronnies counsel addressed the juvenile court, he began by stating, Now, this report was late. I am going to, at this time, object to that order, ask that the visits for the father start .

Immediately before Ronnies counsel addressed the juvenile court, the Agencys counsel referred to the order terminating Ronnies visitation with Raymond. It would appear, therefore, that Ronnies counsels reference to that order was referring to the order terminating his visitation. There was nothing else to which he could have been referring because there was no order to file a late report. Ronnies argument that his counsels objection to that order referred to the late report is rejected.

Thus, while noting the lateness of the report, Ronnies counsel failed to object on the basis of lateness. The lack of objection has resulted in a forfeiture of the right to complain on this ground. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

Forfeiture is the appropriate result in this case for two obvious reasons. First, the Agencys omission easily could have been remedied. If the lateness of the report was problematic for Ronnie, he could have asked for a continuance to respond to the report, thus resolving the matter immediately.

Second, review hearings are scheduled every six months. Opinions from this court rarely become final before six months from the date of the juvenile court order appealed from. So, the matter is now moot. Realistically, the only way the lateness of a report can be addressed is at the juvenile court level.

DISPOSITION

The orders appealed from are affirmed

.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

_____________________

LEVY, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

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

^[2] Raymond has a sister, E.M., who also was subject to the jurisdiction of the juvenile court. She has since been adopted. We will limit our discussion to Raymond.

^[3] Our informal inquiry indicates that the assessment was either not completed or not forwarded to all counsel. Apparently, a hearing was not held to change visitation.