Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. EJ3162B, Ronald F. Frazier, Judge.
IRION, J.
Brandon B. seeks review of juvenile court orders denying reunification services to him under Welfare and Institutions Code section 361.5, subdivision (a). He also challenges the juvenile court's denial of his requests for orders establishing minimum visitation and increasing visitation time. We affirm the orders.
Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Shane B. was born in May 2010 to Brittney P. Brittney named Brandon B. as Shane's biological father. His paternity was later confirmed by genetic testing.
Brittney does not appeal. We mention her only when relevant to the issues Brandon raises on appeal.
The San Diego County Health and Human Services Agency (the Agency) detained Shane at birth and filed a section 300 petition alleging he was at substantial risk of serious harm because of his parents' history of substance abuse and domestic violence. (§ 300, subds. (b), (j).) At the time of Shane's birth, Brittney and Brandon were participating in residential substance abuse treatment programs.
Brandon told a social worker he started using methamphetamine, heroin and opiates in his teens. He was diagnosed with mental health disorders, including borderline schizophrenia and manic depression. Brandon's parental rights to Shane's two older half siblings were terminated in 2006. He had a criminal history that included drug offenses, possession of a stolen car and burglary. Brandon was released from prison in April 2010. He tested positive for marijuana three days after his release and entered a residential substance abuse treatment program. Brandon left the program approximately three weeks later, shortly after Shane was born.
When Shane was detained, a social worker gave a list of referrals to Brandon for substance abuse treatment programs, parenting classes, domestic violence treatment programs and counseling. The social worker encouraged Brandon to participate in services.
At the May 20 detention hearing, the juvenile court ordered the Agency to provide Brandon with supervised visitation with Shane. The Agency then regularly facilitated one one-hour visit a week between Brandon and Shane.
On June 2, 2010, Brandon was arrested on parole violations for being under the influence of drugs, evading police and not participating in and completing a substance abuse treatment program. He acknowledged he would test "dirty" because he used methamphetamine, heroin and marijuana. Brandon was returned to prison. At the end of June, Brandon entered an intensive residential substance abuse program for adult male parolees that provided services for anger management, life skills, relapse prevention, parenting education and pre-employment development.
At a hearing on September 16 the juvenile court found that Brandon was Shane's biological father. Brandon asked the juvenile court to increase his visitation from one one-hour visit a week to two two-hour visits a week. The juvenile court denied the motion for increased visitation, stating "I'll leave that as a case management decision." The juvenile court ordered the Agency to facilitate liberal supervised visitation between Brandon and Shane, evaluate the parental grandmother as a visitation supervisor and allow the paternal grandmother to supervise visitation with 48 hours notice to minor's counsel.
On October 1, at the jurisdiction and disposition hearing, the social worker recommended family reunification services not be provided to Brandon. She based her recommendation on several factors. Brandon had been in and out of jail and prison for more than five years. He was not able to stay clean and sober and had walked out of substance abuse treatment. Further, Brandon tended to discontinue taking prescribed medication for his significant mental health conditions. He did not participate in previously ordered services and lost his parental rights to two other children through dependency proceedings.
Brandon testified that he set up an appointment with a therapist but was arrested before he could attend. If he did not stay in residential treatment, he would return to prison. Brandon was employed by the treatment center as a groundskeeper.
The juvenile court sustained the section 300 petition and removed Shane from parental custody. The juvenile court ordered a plan of reunification services for Brittney. It denied family reunification services for Brandon.
Brandon informed the court his visitation was limited to one hour a week and argued the amount of visitation was unreasonable. The juvenile court stated, "I will leave that discretion to the Agency at this point." The juvenile court ordered the Agency to provide liberal, supervised visitation to Brandon.
DISCUSSION
A
The Juvenile Court Did Not Abuse Its Discretion When It Determined the Provision of Reunification Services to Brandon Would Not Benefit Shane
Section 361.5, subdivision (a), directs the juvenile court to order family reunification services to the child and the child's mother and presumed father whenever a child is removed from parental custody. This requirement implements the preference under federal and state law to maintain the family relationship, whenever possible. (Ibid.; 42 U.S.C. § 629a(a)(7); In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; see In re Alanna A. (2005) 135 Cal.App.4th 555, 563-564.)
Despite the preference for family reunification, there are specific limited exceptions to mandated family reunification services. (§ 361.5, subds. (a), (b), (e).) As relevant here, the juvenile court is not required to offer or provide reunification services to a child's biological father who is not also the child's presumed father. (See Fam. Code § 7611; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825 [California's "statutory scheme creates three classifications of parents: mothers, biological fathers who are presumed fathers, and biological fathers who are not presumed fathers"].) Instead, the juvenile court has the discretion to grant reunification services to the child's mere biological father "if the court determines that the services will benefit the child." (§ 361.5, subd. (a); Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.)
Brandon argues the court erred when it found that providing reunification services to him would not benefit Shane. A reviewing court will reverse an order denying family reunification services only if the juvenile court has clearly abused its discretion. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524; see In re Elijah V. (2005) 127 Cal.App.4th 576, 589.)
The juvenile court may consider a number of factors when it decides whether to offer reunification services to the biological father of a dependent child. Here, the juvenile court could reasonably consider Brandon's failure to respond to previous services, his criminal and substance abuse history and past history of violent behavior. (See, e.g., §361.5, subd. (c) [describing factors the juvenile court may consider in granting reunification services to a mother or presumed father who otherwise meets the criteria under section 361.5, subdivision (b), for a denial of reunification services].)
Further, had Brandon been a presumed father, there is substantial evidence in the record that would have supported a denial of services under section 361.5, subdivision (b)(11) [parent had not made a reasonable effort to treat the problems that led to termination of parental rights to another child]; and/or section 361.5, subdivision (b)(13) [parent resisted treatment for chronic, abusive drug use in recent years].
Brandon cannot show the court abused its discretion when it determined providing reunification services to him would not benefit Shane. (§ 361.5, subd. (a); see Webster's 3rd New Internat. Dict. (2002) p. 204, col. 1 [benefit means "something that guards, aids or promotes well-being"].) Brandon did not engage in services offered during the dependency cases of his older children. He was emotionally impulsive and reactive and had a past history of violent behavior. He assaulted Shane's mother and threatened to kill her. Brandon had a long history of substance abuse that had not been ameliorated by treatment. He left a treatment program within days after Shane's birth and relapsed on alcohol, marijuana, methamphetamine, heroin and opiates. Brandon had a tendency not to follow through with a medication regime to stabilize his mental health condition.
We conclude that the juvenile court did not abuse its discretion when it denied reunification services to Brandon under section 361.5, subdivision (a). We next discuss Brandon's contention that the juvenile court improperly delegated its responsibility to order parent/child visitation when it did not define the minimum frequency and length of his visitation with Shane.
B
The Court Did Not Err When It Denied Brandon's Requests to Set a Visitation Schedule
As relevant here, section 362.1, subdivision (a) states: In order to maintain ties between the parent and the child, any order placing a child in foster care, and ordering reunification services, shall provide 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. (§ 362.1, subd. (a)(1)(A).)
The juvenile court is responsible to ensure that regular parent/child visitation occurs. (In re James R. (2007) 153 Cal.App.4th 413, 435-436 (James R.).) The juvenile court has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to the child protective services agency. (Id. at pp. 435-436; In re Julie M. (1999) 69 Cal.App.4th 41, 51 ["the ultimate supervision and control over this discretion must remain with the court...."].) Reviewing courts have overturned visitation orders that delegated to third parties the juvenile court's discretion to determine whether any visitation would occur. (In re T.H. (2010) 190 Cal.App.4th 1119, 1123; In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505; In re S.H. (2003) 111 Cal.App.4th 310, 317-320.)
Although the juvenile court may specify the frequency and length of visitation, it is not required to manage the details of visitation. (In re S.H., supra, 111 Cal.App.4th at p. 319.) That function may be delegated to the Agency but remains limited and is subject to the juvenile court's supervision and control. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).) Thus, case law distinguishes between the impermissible delegation of judicial responsibility to order or deny visitation to a third party and the permissible delegation of the management of visitation to the social services agency. (In re T.H., supra, 190 Cal.App.4th at p. 1123; James R., supra, 153 Cal.App.4th at pp. 435-436 [the child's social worker may be given responsibility to manage the details of the visits, including the authority to determine the time, place and manner in which visits should occur]; Moriah T., supra, at pp. 1376-1377 [the juvenile court may grant to the county agency the discretion to determine the frequency and length of visitation ordered by the court].)
Here, the juvenile court did not delegate its responsibility to determine whether visitation should occur to the Agency. Its orders for "supervised visitation" and "liberal supervised visitation" provided the Agency with "broad 'guidelines as to the prerequisites of visitation or any limitations or required circumstances.' " (Moriah T., supra, 23 Cal.App.4th at p. 1377, quoting In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.) The visitation orders ensured that Brandon would regularly visit Shane at a frequency and length determined by the Agency to be consistent with the child's well-being. (In re S.H., supra, 111 Cal.App.4th at p. 317 [visitation orders must provide for "flexibility in response to the changing needs of the child and to dynamic family circumstances"]; In re Moriah T., supra, 23 Cal.App.4th at p. 1374 [visitation arrangements require the flexibility to maintain and improve the parent/child relationship while protecting the child's well-being].) We conclude that the juvenile court acted within its discretion when it ordered visitation and delegated the management of Brandon's visitation with Shane to the Agency.
Brandon further argues the court erred when it denied his request for increased visitation without finding that increased visitation would be detrimental to the child. He then argues there is not substantial evidence to show that increased visitation would be detrimental to Shane. We disagree.
Brandon's argument ignores the change in the juvenile court's visitation orders from "supervised" to "liberal supervised" visitation. At the detention hearing, the juvenile court ordered supervised visitation between Brandon and Shane. The Agency then arranged regular, weekly one-hour visits. At a hearing four months later, after Brandon complained about the length and frequency of the visitation, the juvenile court ordered the Agency to provide "liberal supervised visitation." Two weeks later, at the dispositional hearing, the juvenile court reiterated that order. Here, the juvenile court responded appropriately to Brandon's concerns about his limited visitation with Shane by expanding visitation guidelines.
In addition, we reject Brandon's foundational argument that the juvenile court is required to make a finding of detriment to the child before it may deny a parent's request to increase visitation. Contrary to Brandon's argument, a finding of detriment is required only when the juvenile court denies any visitation to a parent. (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357; In re C.C. (2009) 172 Cal.App.4th 1481, 1491 [some visitation is mandatory unless the court specifically finds any visitation with the parent would pose a threat to the child's safety]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 [absent a showing of detriment caused by visitation, ordinarily it is improper to suspend or halt visits].)
The cases, In re Elizabeth M. (2008) 158 Cal.App.4th 1551 (Elizabeth M.) and In re Mark L. (2001) 94 Cal.App.4th 573 (Mark L.), Brandon cites in support of his argument the juvenile court may not refuse to increase the length and/or frequency of visitation absent a finding of detriment are inapposite. Mark L. concerns the denial of any visitation to a physically abusive parent. (Mark L., supra, at p. 581.) Elizabeth M. involved an irregular procedure during a hearing to terminate juvenile court jurisdiction that would adversely affect the parent's family court visitation rights. (Elizabeth M., supra, at pp. 1557-1560.)
Thus, the juvenile court was not required to determine whether an increase in the length and frequency of visitation would be detrimental to Shane before denying Brandon's request for increased visitation. (In re Brittany C., supra, 191 Cal.App.4th at p. 1348.) The juvenile court acted within its discretion when it declined to manage the details of visitation and instead determined that the Agency, in its capacity as an arm of the court, could more effectively assess when increasing the length and frequency of visitation was consistent with Shane's well-being. (§ 362.1, subd. (a)(1)(A).)
DISPOSITION
The orders are affirmed.
WE CONCUR: NARES, Acting P. J., AARON, J.