In re B.C.
Filed 12/28/12 In
re B.C. CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
In re B.C., a
Person Coming Under the Juvenile Court Law.
H038111
(Santa Cruz County
Super. Ct. No.
DP002556)
SANTA CRUZ
COUNTY HUMAN SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
K.T.,
Defendant and Appellant.
Minor
B.C. was declared a dependent child of the court. (See Welf. & Inst. Code, §§ 300,
362.)
and then bypassed for reunification services, argues that the juvenile court abused
its discretion by leaving all decisions regarding Internet contact between
mother and minor entirely to the discretion of the
County Human Services Department (Department).
We
find no abuse of discretion and affirm.
I
A dependency petition was filed on
behalf of minor B.C. on November 22, 2011. The petition stated that minor came within
the jurisdiction of the juvenile court under subdivisions (b) (failure to
protect), (d) (sexual abuse), and (j) (abuse of sibling) of section 300.
On
November 23,
2011, following the
minor detained and temporarily placed under the Department's care and
supervision. It found that
"visitation between the mother and minor is detrimental while the mother
is incarcerated at the main jail and unable to have contact visits."
The
Jurisdiction/Disposition Report, dated January 3, 2012,
indicated that minor, who was four years old, had been taken into protective
custody on November
18, 2011 and placed in a licensed foster
home. Minor had not seen mother since November 18, 2011. The report stated that
mother's criminal history reflects substance abuse of controlled narcotics from
2004 onward. Mother had repeatedly
failed to maintain sobriety from illicit drugs despite court efforts and her
participation in at least two recovery programs. The dependency cases for minor's two
half-siblings were terminated in 2009 and they were in the "primary
custody" of their father, who was not minor's father. The Department recommended that the court
declare minor a dependent of the court and not offer mother
section 361.5, subdivision (b)(13).
The
January 12,
2012 minute order indicates that mother had
been deported to Mexico and the court granted the request of mother's counsel to continue
the jurisdictional/dispositional hearing.
The court found I.C. to be the presumed father of B.C. The matter was continued to January 26, 2012.
An
addendum to the Jurisdiction/Disposition Report confirmed that mother had been
deported to Mexico. The social worker reported
that mother had entered treatment at a particular facility three times but she
had never successfully completed the program.
The Department's recommendation that the court bypass reunification
services to mother remained the same.
Following
a hearing on January
26, 2012, the court sustained the
petition. The court found, by a
preponderance of the evidence, that B.C. was a person described by subdivisions
(b), (d), and (j) of section 300.
At
the dispositional hearing on February 9, 2012, mother's counsel informed the
court that mother had called her using an email camera, which counsel assumed
was the equivalent of Skype. Counsel
said that mother had also attempted to contact minor and mother was
"asking the Department to facilitate a communication between her and her
child . . . ." Counsel reported
that she had advised mother to write letters and cards and to send them to the
social worker.
The
court declared minor a dependent child of the court. It ordered reunification services for
father. It denied reunification services
to mother pursuant to section 361.5, subdivision (b)(13).
The
court ordered visitation for both father and mother. As to visitation between mother and minor,
the court ordered supervised visitation a minimum of once a month
social worker discretion to adjust the frequency, duration, and supervision of
those visits. At the end of the hearing,
after the court had made its visitation orders, the mother's counsel stated,
"I still ask the social worker to hopefully facilitate [I]nternet
communication with my client and her child if possible." The court responded, "I'll leave that to
them."
The
court's formal dispositional findings and orders were filed on February 10, 2012. Mother filed a notice of
appeal. Mother does not challenge the
court's determination that mother would not receive family reunification
services.
II
Mother now asserts that "the
court impermissibly abdicated its duty when it left [her] only means of
communication with the minor, i.e. Internet, letters and cards, entirely to the
discretion of the Department, effectively delegating to the Department the
power to decide whether [her] visitation with the minor would occur." On this basis, mother contends that the
court's visitation order was an abuse of discretion. She now claims that, by leaving the decision
whether she could visit B.C. through email camera or Skype entirely to the
Department, the court delegated too much discretion to the Department. Mother maintains that "this case
requires remand so that the trial court can properly exercise its discretion in
formulating an order that establishes, at the very least, the Department's duty
to facilitate email video contact between [her] and the minor a minimum of one
time each month so long as [she] remains living outside of California."
The
first problem is that the juvenile court was never asked to make any orders
regarding contact through the Internet or regular mail. According to mother, her counsel requested
the court to order the Department to facilitate communications between her and
minor through the Internet while she was not in the U.S. at
the dispositional hearing. We have read
the record closely and we see no request for such a judicial order. Mother further complains that "the court
offered no direction to the Department on how to handle the letters and cards
[she] intended to send to her children through the supervising social
worker." The court was not asked to
give any such direction. Since the trial
court was not asked to exercise its discretion as mother claims, it could not
have abused its discretion. (See
1330, 1339 ["if the law does not require the juvenile court to act in a
certain way, the parent bears the responsibility to care for his or her own
interests by asking the court to exercise its discretion in a manner favorable
to the parent"].)
The
second problem, which is related, is that mother has not demonstrated that she
had any right to an order facilitating her contact with minor through the
Internet or ordinary mail. Section
362.1, subdivision (a), provides in pertinent part: "In order to maintain
ties between the parent or guardian . . . , and to provide
information relevant to deciding if, and when, to return a child to the custody
of his or her parent or guardian . . . , any order placing a
child in foster care, and ordering
reunification services, shall provide as follows: [¶] (1)(A) Subject to
subparagraph (B) [child safety], 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." (Italics added.) As is obvious, this provision does not apply
to mother since the juvenile court found that mother was subject to a statutory
bypass provision and the court did not order any family reunification services
for mother.
Where
the court does not order reunification services pursuant to section 361,
subdivision (b)(13),
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for one parent but orders reunification services for the other parent, the
court may continue to permit the
parent not receiving services "to visit the child unless it finds that
visitation would be detrimental to the child." (§ 361.5, subd. (f), italics added; see
§ 15 [" 'may' is permissive"].) Here, the court chose to make a visitation
order in favor of mother that was contingent upon her return to California.
The
cases cited by mother do not aid her argument.
In re Rebecca S. (2010) 181
Cal.App.4th 1310 considered a completely open-ended visitation order, which was
issued following a section 366.26 hearing.
The juvenile court delegated the responsibility for arranging the
frequency, location, duration of visits between father and his children to
their maternal aunt, their legal guardian who would monitor the visits. (Id.
at pp. 1312-1313.) The juvenile court
also terminated its jurisdiction. (
abuse of discretion because the order, in effect, allowed "the guardian to
decide whether visitation actually will occur." (Id.
at p. 1314.)
Section
366.26 governs the selection and implementation of a permanent plan for the
dependent child. In cases where the
court does not terminate the rights of the parents and order adoption placement
at a section 366.26 hearing, the court must "make an order for visitation
with the parents or guardians unless the court finds by a preponderance of the
evidence that the visitation would be detrimental to the physical or emotional
well-being of the child."
(§ 366.26, subd. (c)(4)(C).)
The
present dependency case has not reached the permanency planning stage; section
366.26 is not yet applicable. In any
case, the juvenile court in this case ordered visitation for mother that
entitled her to a minimum number of monthly visits if she returned to
California; the court's supervision of the dependency case continues.
In
In re Christopher H. (1996) 50
Cal.App.4th 1001, the juvenile court made a dispositional order providing for
the father to have "reasonable visitation" with his son, who had been
adjudged a dependent of the court, while father was incarcerated.
at pp. 1004-1005.) The father contended
that this order improperly delegated judicial power to the Department of Social
Services to set visitation. (
order was not an abuse of discretion because, although a juvenile court
"may not delegate its power to grant or deny visitation to the DSS,"
it may "delegate discretion to determine the time, place and manner of the
visits." (Id. at p. 1009.) It
explained: "Despite dictum to the contrary in In re Jennifer G. (1990) 221 Cal.App.3d 752, 757
. . . , most courts, including ours . . . , agree
the visitation order need not specify the frequency and length of visits. Such specificity is at odds with the purposes
and practical necessities of a visitation order intended to protect the well-being
of a dependent child while both maintaining ties between the child and parent
and providing the parent with an opportunity to demonstrate why his right to
custody and care of the child should be reestablished. (In re
Moriah T., supra, 23 Cal.App.4th
at p. 1375.)" (Ibid.)
More
recently, a reviewing court considered a dispositional visitation order that
called for visitation with a presumed father but "fail[ed] to set a
minimum number of visits or provide that [the presumed father] could visit the
minor 'regularly.' (Moriah T., supra, 23
Cal.App.4th at p. 1371 . . . .)" (In re
Kyle E. (2010) 185 Cal.App.4th 1130, 1136.)
The reviewing court held that the order improperly delegated to the
county's Department of Health and Human Services "the responsibility to
determine whether visitation with the minor would occur at all." (Id.
at p. 1134.) The reviewing court stated:
"In fashioning a visitation order, the court may delegate the
responsibility of managing the details of visitation—including time, place, and
manner—but not the decision whether visitation will occur. (In re
Moriah T. (1994) 23 Cal.App.4th 1367, 1374 . . . .)" (
As
stated, the juvenile court here established a minimum number of visits
contingent upon mother's return to
decision whether or not visitation with mother would occur at all. The order clearly implies that she is not
entitled to any visitation in the event she does not return to California. Mother does not assert that the court abused
its discretion by conditioning her right to visitation upon her return to
California and, hence, she has waived any such claim. (See Title
Guarantee & Trust Co. v. Fraternal Finance Co. (1934) 220 Cal. 362, 363
[appellate courts generally reach only those assignments of error raised in an
appellate brief; all other claims of error are deemed to have been waived or
abandoned].) In any case, mother has not
demonstrated that the court's visitation order was a manifest abuse of
discretion since mother was deported and not receiving reunification
services. (See In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356 [appellate
courts review a dependency order setting visitation terms for abuse of discretion
and will not disturb the order unless it is arbitrary, capricious, or patently
absurd].)
Neither
has mother cited any California statute or case law requiring a juvenile court
to provide for some form of parental contact other than in-person visitation
where a parent, who has been bypassed for reunification services, cannot
personally visit a dependent child because the parent has been deported or is
otherwise unable to visit in person.
Even where a parent is incarcerated or institutionalized
services, an order for visitation or telephone contact is not mandatory. (See § 361.5, subd. (e)(1).)
In
any case, mother has not demonstrated that the court abused its discretion by
not ordering the Department to allow mother to have contact with minor through
the Internet and ordinary mail. (See
148, 162 [the deferential abuse of discretion standard of review "asks in
substance whether the ruling in question 'falls outside the bounds of reason'
under the applicable law and the relevant facts"].) The statutory "bypass provisions
represent the Legislature's recognition that it may be fruitless to provide
reunification services under certain circumstances. (Raymond
C. v. Superior Court (1997) 55 Cal.App.4th 159.)" (Francisco
G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) "[V]isitation is not integral to the
overall plan when the parent is not participating in the reunification
efforts. This reality is reflected in
the permissive language of section 361.5, subdivision (f)." (In re
J.N. (2006) 138 Cal.App.4th 450, 458-459, fn. omitted [no-contact order
with respect to incarcerated mother who had been denied reunification services
not an abuse of discretion].) Mother did
not make any showing that judicial orders requiring the Department to
facilitate mother's contact with minor, either through the Internet or ordinary
mail, would contribute to minor's wellbeing or serve minor's best interests or
that the court's failure to make such orders constituted an abuse of
discretion.
DISPOSITION
The
juvenile court's dispositional orders are affirmed.
_______________________________
ELIA,
Acting P. J.
WE
CONCUR:
__________________________________
BAMATTRE-MANOUKIAN, J.
__________________________________
MÃRQUEZ, J.
further statutory references are to the Welfare and Institutions Code.
services need not be provided to a parent or guardian . . . when the
court finds, by clear and convincing evidence," that "the parent or
guardian of the child has a history of extensive, abusive, and chronic use of
drugs or alcohol and has resisted prior court-ordered treatment for this
problem during a three-year period immediately prior to the filing of the
petition that brought that child to the court's attention, or has failed or
refused to comply with a program of drug or alcohol treatment described in the
case plan required by Section 358. 1 on at least two prior occasions, even
though the programs identified were available and accessible." (§ 361.5, subd. (b)(13).)
