Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIJ109979, Becky Dugan, Judge.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant Kimberly R.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant, Brent R.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minors.
OPINION
RAMIREZ, P.J.
INTRODUCTION
Kimberly R. and Brent R. appeal the denial of separate Welfare and Institutions Code section 388 petitions in which each sought additional time to complete reunification with Kalvin T. and Keven R. The Riverside County Department of Public Social Services (the Department), joined by the minors, urges us to affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Kalvin T. (born in November 2002) and Keven R. (born in July 2004) are the sons, respectively, of Kimberly and Dennis A. and Kimberly and Brent. Both children are “medically fragile.” Kalvin was born prematurely and developed hydrocephalus; he has a shunt and takes medication for seizures. Keven is severely developmentally delayed for unknown reasons. In March 2005, the boys lived with Kimberly and Brent in Beaumont. They were taken into protective custody by the San Bernardino County Department of Children’s Services (DCS) on March 10 after Kimberly told emergency room personnel at a Joshua Tree hospital that she was depressed and suicidal and was going to check herself into Arrowhead Regional Medical Center. Kimberly told the investigating social worker that Brent was an alcoholic who physically, emotionally, and verbally abused her and the children. The social worker later determined that Kimberly had a history of multiple hospital admissions for mental illness and that Brent had a history of arrests for assault and spousal battery.
Dennis is not a party to this appeal.
Jurisdiction
On May 5, the San Bernardino County Juvenile Court found true allegations in a second amended petition DCS filed on April 4: that Keven and Kalvin were at risk of injury and/or abuse due to Kimberly’s history of mental illness and domestic violence and Brent’s history of alcohol abuse and domestic violence. Regarding Kalvin, the court found that Dennis was not in a stable living situation and his ability to parent Kalvin was unknown. (§ 300, subd. (b).) The matter was then transferred to Riverside County, where the family resided, for disposition.
Disposition
The Department filed a disposition report on June 27. Kalvin was two years old and Keven was 11 months old. The report noted that “[t]he parents have not yet acknowledged the problems that led to the detention of the children, nor have they remedied those issues that pose a threat to the safety of the children.” Both Kimberly and Brent greatly minimized the extent of the domestic violence in the home. Kimberly reported to social workers, hospital personnel, and her therapist that Brent beat her when he was drunk. She had a long record of mental illness; according to hospital records she also had a history of amphetamine use and rapid destabilizations of an underlying schizophrenic condition. At first Brent denied any substance abuse; then he admitted drinking up to four quarts of alcohol per day. He explained to the social worker that they did not need any help with their children, but that Kimberly needed to learn to be a better wife. Their arguments had become physical, he said, when he retaliated to her “out of line” comments. The social worker concluded that Brent “clearly [saw] the violence [in the home] as justified and unimportant to the safety of the children.” Dennis was not prepared to have Kalvin placed in his home.
The report documented the service referrals provided to the parents: drug testing, parenting classes, and anger management for Brent, who was in therapy; drug testing, domestic violence counseling, and parenting classes for Kimberly, who was also in therapy; and drug testing, parenting classes, and individual therapy for Dennis. It also documented the social worker’s disclosure that the recommended services would be available only for a limited time. If the parents failed to reunify within six months, the Department would recommend that services be terminated; a possible consequence of termination of services was termination of parental rights; these events could lead to the children being adopted. All three parents said they understood these disclosures.
According to an addendum filed on August 9, Brent and Kimberly appeared to be working diligently on their reunification plans, although reports from the agencies and personnel with whom they had contact were varied. Both were participating in parenting classes and had completed seven of ten sessions. Brent was attending Alcoholics Anonymous (AA), anger management classes, and a 52-week batterer’s treatment program and seemed to be making progress. Kimberly was attending domestic violence counseling and receiving services from a mental health clinic. However, her mental health counselor was concerned because Brent continued to minimize the role of domestic violence in their relationship and continued to use power and control in his relationship with Kimberly. While the parents were visiting the children weekly, the observing social worker reported that both had trouble relating to Kalvin. In response to his “out of control” behavior, Kimberly interacted less with him; Brent antagonized the child by laughing at his temper tantrums. Brent was controlling and demanding with his wife and manipulative with the social workers during the visits. He continued to state that although he and Kimberly had problems, the children had never been mistreated.
Dennis had not yet begun any services and had visited Kalvin just once. He expressed concern about participating because of Brent’s attitude: “I have no way of knowing if he’s going to retaliate against my son. . . . The more I come around my son, the more he’s going to hurt my son.” The addendum concluded that it would be premature to return the children to the parents’ care.
At a contested dispositional hearing on August 11, the court advised the parents that reunification services would not exceed the statutorily permitted six months and that the time would expire on November 7. Minors’ counsel expressed concern about Brent’s behavior and requested that a psychological evaluation be ordered for him. The court authorized, but did not order, the evaluation.
Section 366.21, Subdivision (e) Six-month Review
Over the next two months, the parents seemed to be doing well with their case plans. According to the October 25 status review report, Brent had completed parenting and medically fragile training courses and was attending AA meetings and a 52-week batterer’s program. His AA sponsor thought he was “doing great” and was convinced he was not drinking. Kimberly was taking medication to treat her mental illness and had also completed the parenting and medically fragile training courses. She continued to participate in domestic violence and mental health counseling. However, the psychologist who evaluated her in August reported that she denied ever having used illicit drugs in her life and said she had no marital problems and that her husband had always been good to her. The examiner felt that Kimberly’s inability to be open and honest during testing indicated an unfavorable prognosis. Dennis had attended six parenting classes.
In an addendum filed November 3, the Department requested a six-month extension of reunification services and recommended that the court liberalize visitation to include overnight and weekend visits and authorize the social worker to return the children to the parents without further order. The children had to be removed from their placement in a godmother’s home because she insisted that she had to use corporal punishment to control Kalvin. She had to be able, she said, to hit him on the legs with a stick and “it ha[d] to hurt.” Brent objected strongly to the removal and called a number of people—social workers, a nurse, an administrator, and a regional manager—trying to prevent it. He also tried to talk the case worker into leaving Keven, at least, in the godmother’s home: “No one will hit a 16-month old, Leslie, use common sense.”
At the hearing on November 7, the court expressed concern about Brent’s reported behavior. “Your behavior when they had to remove the children from the godmother concerned me greatly. You weren’t concerned about the fact that she said she had to spank the children. . . . You argued with the social worker. You called numerous people. You know, it’s still that same sort of controlling, angry behavior that we saw at the beginning of the case. [¶] You just—I’m not convinced that you’re really benefiting from your programs. I need to believe that you’re benefiting from your programs, not just that you’re doing them.” Counsel for the children objected to the court’s order permitting an extended (all day) visit between the children and Kimberly and Brent because of continued “grave concerns” about Kimberly’s mental health and Brent’s reported behavior. Counsel questioned whether either parent was benefiting from services. The matter was set for a contested hearing on December 19.
A December 15 addendum reported that the extended day visits were going well and recommended progression to overnights and weekends. All three parents attended the contested hearing on December 19. The court indicated it had read all the reports and, notwithstanding minors’ counsel’s earlier concerns, authorized weekend visits for Kimberly and Brent and liberalized visits for Dennis at the discretion of the Department.
Things seemed to be progressing well until March 2006 when the Department filed another addendum report. On March 6, Kalvin had returned from a weekend visit with a bruise on his ear, scratch marks on his face, and a set of fingerprint bruises on his arm. Although Kimberly and Brent had left several messages on the Department’s voice mail machines over that weekend, in none did they mention the child’s injuries. Not until Monday did Brent call the social worker to say that Kalvin had a bruise on his ear that looked as though the foster mother had dragged him across the floor by his ear. Brent told the social worker different stories about when he had noticed the bruise and said he was concerned about its location because of Kalvin’s shunt. He had not reported it earlier, he said, because he could tell from his own “medical training” that it was about six days old. Kimberly dismissed the injuries as the result of Kalvin’s being an active little boy who got hurt all the time. She said the fingerprints on his arm were the result of Brent’s having had to grab his arm to prevent his falling off an outside wall.
The physicians who examined Kalvin the day he returned from the visit said that the deep purple bruise on his ear appeared to be a thumbprint, as if someone had grabbed his ear. According to the doctor, the injury was about 24 to 48 hours old. The child abuse and neglect clinic thought the marks on Kalvin’s arm, back, face, and ear were “suspicious for inflicted injury.” The bruises on his arm and back were consistent with his having been grabbed too forcefully by fingers.
Dennis had not completed the required medically fragile course and was not ready to have Kalvin in his home, but requested that Kalvin not be returned to the care of Brent and Kimberly as he feared for his son’s safety there.
Section 366.21, Subdivision (f) 12-month Review
On April 24, 2006, the Department filed its report for the 12-month review hearing scheduled for May 8, 2006. The section 366.21 subdivision (f) (366.21(f)) report acknowledged that Kimberly and Brent had completed their case plans, but concluded that they had not benefited from the services they had received. They continued to deny the recently substantiated physical abuse allegation. Dennis had received a full 12 months of services but had not completed his case plan. The Department recommended that reunification services to all parents be terminated and that a section 366.26 (366.26) selection and implementation hearing be set.
The recommendation was repeated in an addendum filed July 7. As a result of the new physical abuse allegations, the parents had requested and received additional parenting, domestic violence, and counseling referrals. But Kimberly was denying that any domestic violence occurred and had attended only one or two domestic violence support group sessions because, she said, they conflicted with her work schedule. Her therapist remained concerned about her level of denial. Brent’s new counselor, Dr. Grimm, reported that Brent was evading him and not returning phone calls; when the counselor did make contact by phone, Brent said he did not need his services and hung up. Brent gave the social worker conflicting stories about his interaction with Dr. Grimm, who eventually closed the referral due to lack of cooperation. At the time of the addendum, Brent said he had cancelled his first two appointments with still another counselor, but that he had an appointment with her later that week. Brent told his domestic violence group that it was Kimberly, not he, who was being investigated. He accepted no responsibility for his actions.
Dennis reported an incident in which Brent came to his workplace at 5:45 a.m. upset that he was attempting to gain custody of Kalvin. However, Brent would not deny that he had abused Kalvin. Meanwhile, Kimberly had been calling Dennis’s new girlfriend and acting as though she and Dennis had an ongoing relationship; Dennis believed Kimberly was having delusional ideas. He did not want his son and himself exposed to “continuous harassment” from Kimberly and Brent for the next 15 years. Dennis had stopped visiting Kalvin and was no longer attending medically fragile classes. He wanted the social worker to look into adoption as an option for Kalvin.
At the contested 366.21(f) hearing on July 19, the Department’s reports were admitted without objection. Kimberly testified on her own and her husband’s behalf. She said that she had finished a domestic violence class and Brent had completed an anger management class, and their relationship had improved as a result. She had also completed a parenting class and believed she had benefited from it. During weekend visits from the end of December 2005 to March 2006, she had used her newly acquired parenting skills. Regarding Kalvin’s most recent injuries: the marks to his face occurred when he jumped off a chair and fell on the cement; the fingerprints on his arm were from Brent’s having grabbed him to keep him from falling over a railing or wall; she did not know how he had received the bruise to his ear. That one, she said, “was not from us.” She and Brent had registered to repeat the parenting class and were waiting for a call to begin.
Brent did not testify, but during argument his counsel recited all the remedial classes he had finished and confirmed that he was continuing in counseling and had again enrolled in parenting class. Counsel asked the court to extend reunification another 60 days to “the 18-month statutory” limit. Kimberly’s attorney asked the court to either return the children home that day or extend services for two more months. Minors’ counsel supported the Department’s position that services should be terminated and a 366.26 hearing set.
The court responded by pointing out that because of the children’s ages the statutory limit for reunification was actually six months with an extension to 12 months if it found “substantial evidence,” and that the parents had already received more time than was allowed. “I don’t know what more we could give these parents. Having them do stuff over again is not going to lead to any better result I think.” “We extended services an extra 10 months, 10 months for these parents in the hopes that we could place the children with them. [¶] It is clear that the children are at physical risk with them. It doesn’t really matter whether it’s physical risk from the neglect or intentional acts.” The court then terminated reunification services and set a contested 366.26 hearing for November 16.
It appears that the court was referring to section 366.21, subdivision (g)(1) which provides that services may be extended six months if the court finds a substantial probability that the child will be returned to the physical custody of the parent and safely maintained in the home within the extended period of time.
On November 1, the Department filed its 366.26 report. Kalvin had been moved to a new placement on October 4 because of bruises in his diaper area that the examining physician determined were the result of child abuse. The Department had identified a prospective adoptive home for the two boys, but was asking that the selection and implementation hearing be continued for 90 days to provide for additional time to secure the placement and complete a preliminary adoption assessment. Medical and developmental tests on both children had been delayed because of Medi-Cal payment authorization requirements. Although the prospective adoptive mother didn’t think the results of the tests would affect her decision, she wanted to wait for them. The Department’s recommendation “at this time” was for a “planned permanent living arrangement” while the adoptions worker continued to work with the prospective adoptive parent.
Weekly visits between the children and the parents were taking place at the foster family agency office. At these visits, the parents focused mainly on Keven and appeared to have difficulty “redirecting” to Kalvin. Kalvin appeared to enjoy the visits but was ready for the next activity when the visit ended. Kalvin tried to interact with his brother, but Brent “redirected” Kalvin away from Keven. Keven had no change of emotion before or after visits. The parents had to cancel a number of visits due to illness; the foster family agency told the social worker that they canceled about every other visit. The adoptions worker was requesting that visits between the children and the biologic parents be limited to once a month during the adoption transition and be discontinued altogether once the children had been successfully placed with the adoptive family.
On November 6 and 13, pursuant to the provisions of section 388, Kimberly and Brent each submitted a Request to Change Court Order (JV-180) form requesting a modification of the July 19 order setting the 366.26 hearing. (§ 388; Cal. Rules of Court, rule 5.570(b).) As changed circumstances, Kimberly’s petition stated that she was actively participating in a mental health treatment program. Kalvin and Keven would benefit from the change of order because, she believed, she had benefited from services and would like an opportunity to show the court that she could effectively parent her two special needs children. She was involved in anger management and parenting and was working diligently on her case plan. Brent’s petition stated that he had completed a parenting course and was participating in a mental health counseling program. Keven would benefit from a changed order because he and Kimberly were working hard to remedy past problems. They loved Keven and wished to provide him with a good home. A stable adoptive home had not been found and the biological parents believed they were the best option for eventual placement. Attached to Brent’s petition were letters documenting his and Kimberly’s attendance at seven and six psychotherapy sessions, respectively (with four more to go), and parenting class attendance and completion certificates. The court set the petitions for hearing on November 16, the date already scheduled for the contested selection and implementation hearing.
According to the date stamps, Kimberly’s petition was received by the court on November 6 and Brent’s on November 13, although they were actually “filed” on November 15 and 16.
On November 16, the court held the section 388 and 366.26 hearings together. The November 1 report was not formally admitted into evidence. The social worker was present, but neither side called her to testify. Counsel for the Department urged the court to deny the JV-180 requests for additional services and reiterated its requests for a 90-day continuance of the selection and implementation hearing and decreased visitations to once a month. Counsel for Dennis supported the Department’s requests that the JV-180’s be denied and for a continuance. Dennis could not take Kalvin himself, but was concerned about the way his child had been treated and did not believe Kimberly and Brent had benefited from the services they had received. Minors’ counsel agreed with the Department and Dennis. She argued that there had been no substantial change of circumstances and that it was not in the minors’ best interests to grant the JV-180 petitions and submitted on continuing the section 366.26 hearing.
Counsel for Kimberly and Brent each reiterated the information in their respective client’s petitions. Kimberly’s attorney reviewed her completed case plan accomplishments and asserted that she had met both prongs of section 388. She was now working on her own to increase her parenting skills, she was visiting the children, and they were benefiting from visits. Kimberly had brought pictures of the visits to show that she had a significant bond and relationship with the children and counsel had shared them with other counsel and with the court. Kimberly’s counsel opposed the Department’s request for a continuance and emphasized the uncertainty of the prospective adoptive placement. The children should not be left “in limbo” when the parents were ready and willing to take care of them.
Brent’s counsel joined Kimberly’s arguments for granting the section 388 petitions, and suggested that Kalvin’s injuries during the weekend visit were not “significant.” Brent too had completed a second parenting class, was still in mental health counseling, and was “working very hard.” His counsel asked the court to extend visitation and addressed the uncertainty of the prospective placement: “The parents are the only people that we know for sure love the children and want the children back in their home at this point.”
Before announcing the decision to deny the section 388 petitions, the court explained its reasoning. It said it had no doubt that the parents loved their children and had worked diligently on their services, but added, “[U]nfortunately we do have . . . two very special needs children. They will not be able ever to protect themselves, to be able to complain when there’s a risk of their injury. And we’ve allowed the parents to basically show us that they have not benefited from services. Doing a parenting class over again when they have already done one and not benefited will not, I think, change the result. They’ve already done that. [¶] So the Court is going to deny their [JV-]180s and find specifically that there is no change of circumstances that has been addressed by those [JV-]180s. And a ten-week parenting class will not cure the problem.”
As to the 366.26 proceedings, the court granted the Department’s requests for a 90-day continuance and reduced parental visits to once a month. At the close of the hearing, the court clarified that it was also not in the children’s best interests to change the earlier order.
This appeal followed.
DISCUSSION
Kimberly and Brent both argue that the juvenile court erred by first granting then denying them a hearing on their section 388 petitions, and Brent further insists that we must use a de novo standard to review the decision. Both also claim that the court abused its discretion by reducing their visitation from weekly to monthly. In addition, Kimberly argues that there was insufficient evidence to support the order granting the Department’s request for a continuance of the 366.26 hearing. The Department disagrees on every point. So do we.
Section 388 Petition Denials
Standard of Review
We review a juvenile court’s decision to summarily deny a section 388 petition for abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) “[W]hen a court has made a custody determination in a dependency proceeding, ‘“a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Similarly, we review a court’s denial of a section 388 petition on the merits for abuse of discretion. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 (Jeremy W.).)
Kimberly acknowledges abuse of discretion as the proper standard of review, but Brent argues that a trial court’s decision to deny a section 388 petitioner an evidentiary hearing should be “de novo” and suggests that courts which have held otherwise are wrong. We consider the argument academic, as the result under either standard, as we will explain, is the same.
Brent bases his argument on analogies from Aquino v. Superior Court (1993) 21 Cal.App.4th 847, Looney v. Superior Court (1993) 16 Cal.App.4th 521, and Jeremy W., supra, 3 Cal.App.4th 1407. While we do not fully address the argument, we note in passing that none of the cited cases is apt. Aquino involved an intentional infliction of emotional distress claim in which the trial court decided, “as a matter of law,” that the plaintiffs had not met the “onerous burden” necessary to plead punitive damages. (Aquino, supra, at p. 857.) Review there, the appellate court determined, was analogous to a review of a summary judgment. (Ibid.) In Looney, the appellate court interpreted conflicting statutes regarding procedures for amending their complaint to include a claim for punitive damages should they succeed in winning the underlying medical malpractice case. (Looney, supra, at p. 531.) In Jeremy W., the appellate court reversed the juvenile court’s summary denial of a mother’s section 388 petition despite the fact that she had made “a strong prima facie showing of a favorable change in the single negative factor on which the referee purported to base his section 366.21 order, if not its complete elimination. On these facts, its summary denial without affording a hearing is not supported by the record.” (Jeremy W., supra, at p. 1416.) This was not a conclusion based on a question of law; it was a tacit acknowledgement that the trial court had in fact abused its discretion because the evidence did not support its decision.
“Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . .” (§ 388.) There are two parts to the prima facie showing a parent bringing such a petition must make in order to proceed by way of a full hearing: (1) that there is a genuine change of circumstances or new evidence, and (2) that revoking the previous order would be in the best interests of the children. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) While the petition should be “liberally construed” in favor of granting a hearing, if the allegations in a petition so construed do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Marilyn H., supra,atp. 309; In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) “In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004) 123 Cal.App.4th 181, 189, citing In re Jamika W. (1997)54 Cal.App.4th 1446, 1450-1451.)
Analysis
Here, as the Department points out, the parents’ whole argument depends on their assumption that the court summarily denied their petitions without a hearing. This assumption is belied by the record. The day after each parent’s section 388 petition was received, the court set it for hearing on November 16. The form used to grant the hearings indicated that the petitions stated a change of circumstance or new evidence and that “[t]he best interest of the child may be promoted by the requested new order.” (Italics added.) The form did not say that the requested change of order would be granted.
All parties appeared, either personally or through counsel, at the November 16 hearing. The social worker was present. One by one, the court invited counsel for each party to speak. County counsel requested a continuance of the 366.26 hearing and that the parents’ petitions be denied; counsel for Dennis joined the Department’s position, as did counsel for the minors. Minors’ counsel argued specifically that there was no substantial change of circumstances and that it was not in the children’s best interests to grant the requested new orders.
Counsel for Kimberly and Brent then each argued vigorously and at some length to emphasize the information in their clients’ petitions, reiterating that Kimberly and Brent had taken more parenting classes and were continuing in counseling. None of this evidence was new. Neither attorney called his or her client to testify. Although the social worker was present, she was not called to testify or for cross-examination. Nor did counsel offer to supplement the material included within or attached to the filed petitions. Both attorneys put the best possible face on their clients’ positions, but no new or additional evidence was offered for the court to accept or refuse.
In explaining its decision, the court, which had presided at virtually all of the Riverside County hearings, briefly reviewed the history of the case and conceded that the parents loved the children and had worked diligently to complete their case plans. Despite these accomplishments, when visits progressed to weekends, they had promptly inflicted significant injuries on Kalvin then sought to blame the injuries on someone else while justifying their own use of force. They had thus demonstrated their failure to benefit from the services they had received. Because of their own special circumstances, the two children were still vulnerable: “They will not be able ever to protect themselves . . . .” In view of the entire factual and procedural history of the case, with which the juvenile court was familiar and to which it referred, there was no abuse of discretion in the decision that the change of orders requested by the parents’ section 388 petitions was not in the best interests of Kalvin and Keven. (In re Jamika W., supra, 54 Cal.App.4th at p. 1451.)
Moreover, even if the decision could somehow be construed as a summary denial of the request for a hearing, we would not find it an abuse of discretion. Nor, if we were to use the de novo standard of review Brent recommends would the result be any different. This is because, in our view, the petitions arguably neither made the prima facie showings necessary to proceed by way of a full hearing nor showed that the children would benefit from the requested change. It is true that the petitions included certificates and statements showing that Kimberly and Brent were repeating the services from which they had failed to benefit in the past. But the point of reunification services is not to collect certificates. The point is to change behavior. At most, the documents showed that, at the last minute, the parents were still trying to change their behavior, not that they had succeeded. As the appellate court in the case of In re Baby Boy L. (1994) 24 Cal.App.4th 596, explained: “[A]t the eleventh hour and the fifty-ninth minute, [mother] offered a bare scintilla of proof that she was beginning to rehabilitate. But ‘[c]hildhood does not wait for the parent to become adequate.’ [Citation.] A mere prima facie showing of changing—we hesitate to say, ‘changed’—circumstances was not enough to require or justify a hearing on return of the child . . . .” (Id. at p. 610.)
Visitation Orders
Kimberly and Brent argue that the court’s order decreasing parental visitation to once a month was an abuse of discretion. Brent further asserts that it was a violation of his right to due process. Both parents are wrong.
Standard of Review
As with the granting or denial of section 388 petitions, we review the juvenile court’s orders regarding visitation for abuse of discretion: “The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32; see also Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, fn. 6.) A juvenile court abuses its discretion when its orders are capricious, arbitrary, or patently absurd. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Visitation
Whenever a juvenile court sets a 366.26 selection and implementation hearing, it must terminate reunification services, but it must also continue to permit the parent to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. (§ 366.21, subd. (h).) Nonetheless, “Once family reunification services are terminated, the . . . focus shifts from monitoring the parents’ progress toward reunification to determining the appropriate placement plan for the child.” (In re Marilyn H., supra, 5 Cal.4th at p. 305.) While parents have a compelling fundamental interest in the care and companionship of their children, children likewise have a “fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]” (Id. at p. 306.) Adoption is the preferred placement plan for a child who is adoptable and whose parents have failed to reunify. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728; In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574; In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.)
Analysis
There is no doubt that the juvenile court complied with the terms of the statute. When it set the 366.26 hearing and terminated services on November 16, a full four months after the expiration of the allotted reunification period, it ordered visitation. Neither the statute nor any case law specifies the frequency or conditions of the visitation. Kimberly and Brent, who even after Kalvin’s latest set of injuries were being permitted to visit weekly, may be unhappy with the new schedule but that is beside the point. Moreover, according to the social worker’s report, when they did have weekly visits, they were canceling about every other visit. As the Department points out, the cases upon which the parents rely are not apt. All deal with the impropriety of eliminating visits altogether absent a finding of detriment. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504; In re Luke L. (1996) 44 Cal.App.4th 670, 679.) That is not what happened here.
Not only did the order comply with the specific requirements of the relevant statute, it also complied with the overarching legislative goal of providing maximum stability, adoption if possible, for dependent children whose parents have failed to reunify with them. (In re Autumn H., supra,27 Cal.App.4th at p. 574.) The court here was very clear about its purpose: “The request to reduce [the visits] to once-a-month visits is granted so that we get these children in an adoptive placement and get them ready for that.” The order was also consistent with the appropriate shift of focus from parental efforts toward reunification to facilitating an appropriate placement plan for the children with a caretaker who can give the children full emotional commitment. (In re Marilyn H., supra, 5 Cal.4th at pp. 305-306.) It is true that an adoption assessment had not yet been done because the children were not yet in the prospective adoptive home. It is also true that because of their handicaps they might be difficult to place. The resolution of these problems was ongoing and the fact that placement might not be easy did not relieve the Department of the duty to pursue the goal set by the Legislature. A prospective adoptive mother had been identified and the adoptions worker was continuing to work with her. The court did not abuse its discretion by reducing visitation from weekly to monthly to aid the effort.
Continuance of the 366.26 Hearing
Kimberly and Brent’s last significant argument, which Kimberly makes and Brent joins, is that the court improperly granted the Department’s request for a continuance. The parents believe the court should instead have placed the children in long-term foster care. We disagree.
When a prospective adoptive home has not been identified for a child with a diagnosed physical or mental handicap by the time of the 366.26 hearing, the court may grant a continuance of up to 180 days and, without terminating parental rights, order that efforts be made to locate an adoptive home for the child. (§ 366.26, subd. (c)(3).) That is exactly what happened in this case.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.