Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County, No. J222801, Jerry Walker, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant (mother).
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant (father).
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ, P.J.
Defendants and appellants S.Z. (mother) and D.S. (father) (collectively, parents) separately appeal from the juvenile court’s dispositional order granting them two hours per week of visitation with their infant son, Z.S. (child), who was born in July 2008. Both parents argue that the juvenile court abused its discretion in failing to grant them more liberal visitation because this unconstitutionally deprived them of a reasonable opportunity to create and maintain a reasonable parent-child relationship. As discussed below, we conclude that the juvenile court did not abuse its discretion because the dispositional order regarding visitation was consistent with the child’s well-being under Welfare and Institutions Code section 361.2, subdivision (a)(1)(A).
All section references are to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts and Procedure
Reasons for Initial Custody
The child was born nine weeks early in late July 2008, weighing four pounds and four ounces. Hospital personnel contacted Children and Family Services (CFS) after mother and the child tested positive for methamphetamine. On July 28, the social worker contacted the parents by telephone. The parents were visiting the child in the neonatal intensive care and the social worker asked them to stay at the hospital so she could talk to them in person. Later that day at the hospital, mother told the social worker that she had considered terminating the pregnancy, as she had terminated three previous pregnancies, because she was 41 years old and did not want more children. Mother stated that she decided to give birth to the child after father convinced her to do so. She admitted to having attended only three of seven scheduled prenatal visits, despite being told the pregnancy was high risk.
Mother asserts the initial test on the child was later corrected to negative in hospital records. We do not find this factual issue to be dispositive.
Mother denied having ever used methamphetamine, and claimed the test was a false positive because she had taken a cold medicine pill. Mother initially admitted to consuming “a few beers” every night during the pregnancy, until father told her to stop talking to the social worker. Father reported having been arrested for assaulting a police officer, and “a couple of DUIs” but stated that it had nothing to do with the child. Father was very uncooperative and angry during the interview. The social worker decided to place the child in protective custody. After much resistance, both parents agreed to allow the social worker to drive them to a lab to take a drug test. Father tested positive for amphetamine and methamphetamine.
The record does not contain the results of a drug test for mother on that date, July 28, 2008.
Mother had no criminal history. However, father had arrests dating back to 1980 for drug possession and sale, grand theft, assault with a deadly weapon, and battery with serious bodily injury. During a subsequent interview to discuss the allegations in the dependency petition filed under section 300, mother reported that father was physically and verbally abusive to her on a regular basis. Mother also stated she did not plan to keep the child if father was not around. Mother stated “He is not ready to take care of a baby, he can’t even take care of his dysfunctional self, much less... an infant. I know I can’t either, that’s why when I couldn’t get an abortion, I planned to find him a good home.” Mother reported that she relied on father to support her, but that he received only $870 per month plus $149 in food stamps, and the money was often gone by the fifth day of each month.
Detention
At the detention hearing held on August 1, 2008, the court ordered the child detained and scheduled a jurisdiction and disposition hearing for August 21, 2008. The parents were to have supervised visits a minimum of twice per week. The jurisdiction and disposition hearing was continued so the parties could attempt to mediate the case.
Mediation and Pre-Trial Settlement Conference
At the mediation, the parties did not discuss the case plan because the parents were contesting all allegations. The mediator’s report indicates the parents requested increased visitation. At the pretrial settlement conference held on September 17, 2008, both parents requested that visitation be increased from two hours weekly “as this is a very young baby.” Counsel for the child did not object, however counsel for CFS asked that visits remain at two hours per week. The juvenile court left the visits at two hours per week but gave CFS authority to liberalize visitation.
Jurisdiction and Disposition
At the jurisdiction and disposition hearing finally held on October 27, 2008, mother testified that she had never used drugs, had not told the social worker about any domestic violence, and had not told the social worker that she drank during the pregnancy. Mother could not recall having told the social worker that neither she nor father were ready to care for the child, nor that she had wanted an abortion and had planned to find a good home for the child.
The social worker testified that that mother’s testimony about not having made the above statements was untrue. She testified that she believed the child would be at risk if returned home because of the parents’ substance abuse problems, domestic violence, and father’s negative behavior “throughout the life of this case.” The social worker also testified that, although she would like to see the parents participate in substance abuse treatment and testing, individual counseling and domestic violence prevention classes, the parents had refused to cooperate, had not enrolled in any services, and consistently refused to drug test.
At the conclusion of the hearing, the juvenile court found the allegations true, ordered the parents to participate in reunification services, and restated that visitation would be supervised “not less than twice per week, one hour per visit each time per week. Liberalized as appropriate as the parent’s progress through the treatment program.” Counsel for mother then stated “Your honor, they’re visiting twice a week now.” The court stated “Two times per week is fine.” Counsel for neither parent objected to the visitation order. Each parent then filed a notice of appeal.
Discussion
CFS argues that both mother and father forfeited their right to appeal the visitation issue because neither objected at the jurisdiction and disposition hearing. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another point as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) The parents counter that they did not waive the issue because, first, they raised it at the mediation and pre-trial conference. However, neither cites any authority that, for waiver purposes, raising an issue at mediation or a pre-trial conference is sufficient to alert the trial court that the parents object to a ruling made at the jurisdiction and disposition hearing. Second, the parents argue that the statement by mother’s counsel at the jurisdiction and disposition hearing that “they’re visiting twice a week now” constitutes an objection made in the trial court to the visitation order. We disagree. Counsel did not ask for increased visitation nor give reasons why increased visitation would be desirable. We will not imply an objection where it appears counsel was informing the court of the status quo, without asking that the status quo be changed.
Even if the parents had not waived this issue, the juvenile court did not abuse its discretion when it granted them two hours of visitation per week with the child.
Visitation is considered an essential component of a reunification plan. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) In order to maintain ties between the parent and the child, visitation shall be ordered, as frequently as possible, consistent with the well-being of the child. (§ 362.1, subd. (a)(1)(A).) In reviewing a juvenile court's visitation order, we apply the deferential abuse of discretion standard. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) Even when the evidence leads to two or more reasonable inferences, the reviewing court cannot substitute its decision for that of the juvenile court. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Instead, the juvenile court’s decision must be upheld unless it exceeds the bounds of reason. (Ibid.)
Here, we conclude that the court’s order for visitation “minimum twice per week,” with authorization for the social worker “to liberalize visitation as deemed appropriate” does not exceed the bounds of reason. This is because it was reasonable for the juvenile court to find that more visits would not be consistent with the well-being of the child under section 362.1, subdivision (a)(1)(A). First, the parents had consistently refused to drug test after the very first test, had a history of domestic violence, and had as yet refused to participate in any services aimed at addressing these issues. Second, the parents’ behavior at the twice-weekly visits was not entirely appropriate, with mother unsure of how to hold, feed, or burp the baby, and father being frustrated with mother and speaking to her in a demeaning manner. Father especially was frustrated during the visits and hostile toward the personnel supervising the visits. Third, even after two months of visits, the parents did not appear to be familiar with baby formula supplied in powder form, and seemed unconcerned when their handling of the child caused the child’s heart monitor to stop working. On both of these issues, the parents rejected proffered advice from the supervising social worker. Thus, because of the parents’ failure to even begin to work on their program, their poor behavior during visits, and both their lack of knowledge and lack of desire to learn about issues basic to the child’s care, the juvenile court did not abuse its discretion when it concluded that ordering more frequent visits would not be consistent with the well-being of the child.
Section 362.1, subdivision (a)(1)(A) provides in part: “Visitation shall be as frequent as possible, consistent with the well-being of the child.”
Disposition
The juvenile court’s dispositional order is affirmed.
We concur: RICHLI, J., MILLER, J.