Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. J186971
Kline, P.J.
INTRODUCTION
Petitioner Julie M., mother of 11-year-old Sophia B., filed a petition for extraordinary writ and related request for a stay from the juvenile court’s order setting a Welfare and Institutions Code section 366.26 hearing for March 20, 2008. Petitioner argues that the juvenile court erred by: (1) receiving an ex-parte, hearsay letter from Sophia’s therapist at the hearing, where the letter was not part of the social worker’s report, was not entered into evidence, and where the therapist was not present for cross-examination; (2) delegating power over whether or not visitation would occur to the social worker and to the child; (3) denying petitioner’s request that the suspension of all contact between her and Sophia be set aside and visitation resumed and consequently denying her the opportunity to come within the exception to adoptive placement expressly permitted by section 366.26, subdivision (c)(1)(B)(i) [former subdivision (c)(1)(A)]. We shall affirm the order.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
Detention and Jurisdiction.
At the time of detention, Sophia and her half-siblings (Mark and Kelsey) were living in the home of Sophia’s father, Brian B. Petitioner was a transient on drugs. She occasionally came to the home to sleep in the garage. She had another boyfriend and did not care for the children. She spent most of her time with her boyfriend somewhere else.
The children were taken into protective custody on April 22, 2003, by Fremont Police after disclosures that Brian B. had sexually molested Sophia’s half-siblings and two unrelated girls. Kelsey disclosed numerous instances of sexual abuse over five to six years. Many of these incidents occurred when petitioner was in a different room of the house and some with Sophia asleep on the same bed.
On April 25, 2003, a section 300 petition was filed by the Alameda County Social Services Agency (Agency) on behalf of six-year-old Sophia and her older half-siblings, Mark and Kelsey. The petition, as amended on May 23, 2003, was based upon factual allegations of petitioner’s substance abuse, which impeded her ability to care for, protect and parent the children; the sexual molestation of Sophia’s half-siblings by her father, Brian; petitioner and Brian’s incarceration; and the unknown whereabouts of the half-siblings’ father.
The children were placed in the care of the maternal grandmother. The children indicated petitioner was not able to provide for them and that they had not seen her much. She was gone most of the time. They felt the grandmother could provide better shelter and care for them.
Petitioner was interviewed on April 25, 2003, and indicated her agreement to placement of the children with the grandmother. In early May, petitioner spoke to the child welfare worker, claimed to be clean and sober, and said she wanted to see the children. She admitted she had a substance abuse problem and stated she wanted help. Petitioner, who has criminal convictions dating back to 1994, was incarcerated at the time.
Jurisdiction was sustained on May 23, 2003. The allegations of the petition were found true as amended. Reunification services were granted petitioner as to Sophia. Visitation was to be supervised. The older half-siblings were permanently planned to long-term foster care at the home of the grandmother on September 3, 2003.
Six-month Review.
At the six-month review, Sophia remained in placement with the grandmother. She liked the placement and adapted well. She had no developmental concerns and was doing well. She was assessed as adoptable on May 12, 2003. Petitioner had not completed any portion of her case plan. She visited Sophia inconsistently. Her visits were supervised by the grandmother. She maintained telephone contact with the children. Sophia said she missed her mother.
On October 29 and November 5, 2003, the court found that reasonable services were provided, but that mother had made only minimal progress. Further services were ordered. Petitioner visited inconsistently until January 2004. Petitioner was out of contact with the social worker for some months, but resurfaced in late November 2003, reporting she had been assaulted and had left town for a period of time. Although stating she was not using drugs, petitioner tested positive for methamphetamines on December 16 and 29, 2003. After returning to the area, she had her first visit on January 12, 2004. She was allowed supervised visits on condition that she remained clean and sober during visits.
On January 20, 2004, the Agency filed a section 387 petition to change the placement. The petition was based on grandmother’s request due to Mark’s incorrigible behavior and grandmother’s deteriorating mental health. The grandmother suffers from depression. Sophia and Kelsey were removed from the grandmother’s home on January 16, 2004, and placed in a foster home with the C. family. Mark was placed in a group home on January 13, 2004, after he stole the grandmother’s car, causing $5,000 of damage. Petitioner was not happy that the grandmother could no longer care for the children, but said there was nothing she could do about it.
On March 16, 2004, Sophia’s parents submitted a waiver of rights and the section 387 petition was sustained as alleged.
Sophia adapted well to the new home and environment. She reported liking the home and the other children, she continued to work in therapy to cope with feelings of sadness, anger, grief and confusion. She participated willingly. She reported she missed her mother and got sad when she did not hear from petitioner for a while.
Termination of Reunification Services.
Services to petitioner and Brian B. were terminated on June 10, 2004. Sophia’s permanent plan was a planned living arrangement with the C.’s, with a specific goal of termination of parental rights and adoption or legal guardianship. Visitation with petitioner was to be as frequently as possible consistent with Sophia’s well-being. There was to be no visitation with the father.
August 31, 2004 Post-Permanent Plan Review.
Petitioner’s whereabouts were unknown, however she arranged for visits and had regular, scheduled supervised visits from February 19 through June 26, 2004, missing only two visits. Sophia reported she enjoyed the visits. Petitioner contacted Sophia and Kelsey weekly by telephone as well. Sophia completed second grade and grew into a “very attractive and articulate child who presents much older than her age.” She enjoyed school and worked hard to be a successful student. She was again assessed as adoptable on March 31, 2004. On August 31, 2004, the court found the Agency had complied with the case plan and continued the placement. Existing orders were continued and the social worker was granted discretion to allow unsupervised visitation.
February 15, 2005 Post-Permanent Plan Review.
Sophia and Kelsey remained in the C. home. They seemed very comfortable and fully integrated in the foster family. Sophia was thriving. She continued to enjoy school and worked hard to succeed academically and socially. She received a good report card, got along well with her foster family, and was making new friends in school and the community. She was assessed on January 21, 2005, and again found adoptable. Sophia and Kelsey reported they enjoyed visits with petitioner.
From September through December 1, 2004, Sophia had seven supervised visits with petitioner. Petitioner cancelled three visits. Kelsey began experiencing ongoing negative changes in her behavior after phone calls and visits with petitioner and the grandmother. She alternatively isolated herself or was uncharacteristically rude to her foster family. Phone calls now took place only during the social worker’s visit, which appeared to help. Sophia had ongoing nightmares during this reporting period, but was able to go back to sleep after being comforted by the foster parents, who reported the nightmare concern to Sophia’s therapist. The updated case plan continued to indicate a supervised visitation schedule with petitioner as two times a monthly or as appropriate. On February 15, 2005, the existing order was continued.
August 2, 2005 Post-Permanent Plan Review.
Sophia remained placed in the C. home. Petitioner had three supervised visits with Sophia and saw her at Kelsey’s graduation, during the August 2, 2005 review period. She cancelled eight of 12 scheduled visits. When her mother cancelled visits, Sophia was disappointed but not sad.
Sophia completed third grade, excelling in school. She also participated in dance and gymnastics, which she enjoyed. She disclosed that during her overnight visits with the grandmother, grandmother allowed petitioner to have overnight visits with them as well. Sophia had many nightmares, the general theme of which focused on her being removed from the foster home by a person or people without faces. Her nightmares generally occurred after phone contact or supervised visits with petitioner. She participated in therapy and appeared to have benefitted from it. She learned relaxation techniques to help reduce nightmares and increase restful sleep. She had a close relationship and bond with her foster mother and with Kelsey. She had one negative incident at school when she became upset with a boy in her class who made a negative comment about her friend. She elicited the help of other boys in the class to beat up this boy. While he was on the ground, she kicked him. This incident occurred within 24 hours of returning home from an overnight visit with the grandmother. She was disciplined by the principal and not allowed to attend the school picnic. She wrote an apology to the boy.
Mark was having difficulty in his placement and the grandmother was uncooperative with the child welfare worker. Among other things, she was allowing petitioner unsupervised and unauthorized contact with the children, despite being aware that unsupervised visitation by mother was not allowed.
At an August 10, 2005 review hearing, the court adopted the recommendations of the Agency, granting supervised visitations for petitioner and for the grandmother. The child welfare worker was also granted discretion as to visits between petitioner and Sophia.
January 25, 2006 Post-Permanent Plan Review.
During the January 25, 2006 reporting period, petitioner’s address and phone number remained unknown. She scheduled her supervised visits through the foster family social worker. She visited the children only twice, once on July 22, and once on September 29, 2005. She failed to show up for a scheduled visit on September 22, and cancelled a visit for November 3, 2005, claiming illness.
Sophia continued to do well as before in all areas. She appeared closely bonded to the foster mother and her nightmares had decreased. She indicated she would like her foster parents to be her legal guardians. The updated case plan continued to show a supervised visitation schedule for petitioner as twice monthly or as appropriate. At the January 25, 2006 review hearing, existing orders were continued in effect.
July 12, 2006 Post-Permanent Plan Review.
During the July 12, 2006 reporting period, visits continued, but were difficult to schedule as petitioner’s address and phone number remained unknown. Petitioner frequently cancelled at the last minute. She was not visiting regularly. From February to May 2006, petitioner scheduled three visits, but cancelled two. She cancelled one visit at the last minute while Sophia was being transported to the visit. Sophia was very disappointed. She became upset when petitioner cancelled or missed a visit, but she continued to want contact with her mother. Sophia continued to do well at home and at school. The foster parents were thinking about adoption, but were not ready. At the August 2, 2006 review hearing, existing orders were continued and a progress review was set for December 27, 2006. The court ordered visits between petitioner and Sophia to take place at the grandmother’s home twice a month. Sophia and petitioner were allowed to have unsupervised telephone contact.
December 22, 2006 Post-Permanent Plan Review.
Sophia remained placed with the C.’s and did not want to be moved from their home. She continued to thrive at school and was elected student body president for the 2006-2007 school year. She had unsupervised visits with the grandmother one Saturday night per month. She stated that she was having nightmares generally occurring after phone contact or before visits with petitioner and/or the grandmother. She had a terrible nightmare about Kelsey drowning and no one was able to save her. Kelsey had become depressed. She had opted for an extended visit with the grandmother, while the rest of the foster family went to Disneyland. During this extended visit, Mark was drunk at the grandmother’s home and threatened suicide. Kelsey became depressed after returning and had suicidal thoughts. She would not disclose what had transpired during the week at the grandmother’s home. The following week she was involuntarily hospitalized (§ 5150) and refused to return to the foster home. Kelsey said if she told the foster parents about the visits with the grandmother, the foster parents would have to report it. Kelsey was placed in a group home on November 2, 2006.
Sophia reported that she did not feel safe with her mother or with the grandmother. She does not think they can keep her or her sister safe. Sophia requested that she no longer have unsupervised visits with petitioner or the grandmother. During this reporting period, petitioner scheduled four visits with Sophia, but cancelled two. She also saw Sophia twice during Sophia’s overnight visits at the grandmother’s home.
Sophia disclosed that petitioner had been at most visits with the grandmother since Sophia and Kelsey’s placement with the C.’s. The grandmother had allowed petitioner to take Sophia to the store alone. Both petitioner and the grandmother told her not to tell. Mark had been sleeping at the grandmother’s during the last three visits and was drunk and threw up at the front and back porches. Mark’s friends also spent the night there. The grandmother also became drunk during visits and verbally abusive. Sometimes the grandmother was not present at all. They were generally unsupervised. While drinking, Mark became depressed and talked of suicide. For the safety of the children all visits were cancelled pending investigation. Not all information came to light. On December 1, 2006, Sophia had a supervised visit with mother and the grandmother. Asked whether she felt comfortable in restarting unsupervised visits with her grandmother, Sophia answered no. Asked whether she wanted the grandmother to supervise visits with petitioner, Sophia answered no. She requested the foster family worker to continue to supervise visits with petitioner and the grandmother.
On December 22, 2006, the court ordered visitation between Sophia and petitioner be supervised. The child welfare worker was granted discretion for visits and to permit unsupervised visits between Sophia and petitioner. Otherwise, the existing order was maintained.
June 6, 2007 Post-Permanent Plan Review.
It was reported that, at the last review, when the court had ordered visits be supervised, the grandmother became upset. In the hallway after the ruling she whispered to Sophia that she refused to have supervised visits and that she never wanted to see Sophia again. Sophia cried out in alarm and burst into tears. This incident was witnessed by the foster parents, the child welfare worker and Sophia’s counsel. Sophia was comforted by the foster parents. Since then the grandmother has not contacted the social worker for a visit. She told counsel she would like Sophia to call or write to her. Sophia refuses to do so without an apology from the grandmother.
Kelsey was placed in a foster home on April 17, 2007, after going AWOL from March 23 through April 17, 2007. A drug pipe was found among her belongings after she AWOL’ed. It was clear that she was with petitioner during her AWOL.
Sophia was in 5th grade during this period and was an Honor Roll student, doing very well. The report opined that Sophia “has a bonded relationship with her foster mother who guides her through the turmoil around her. Sophia has a natural instinct for emotional good health.” She talks over her issues at home and at therapy. Sophia continued to have nightmares. She began therapy with Amy Scott on December 14, 2006. She attended all therapy sessions and worked on her family issues. The report stated that Scott had confirmed that Sophia did not wish to see her mother or grandmother and was angry and disappointed in them. Sophia had been very concerned about Kelsey’s safety while Kelsey was on the run. Sophia wrote her counsel disclosing that petitioner had lied to Sophia about not knowing Kelsey’s whereabouts after Kelsey went AWOL, only to admit later that petitioner “ ‘might have seen [Kelsey] and I might have known that she wasn’t in a safe place.’ ” Sophia was very angry and did not want to talk to petitioner and did not want petitioner to call her.
Petitioner had no contact with the Agency during this period. Her address and phone number remained unknown. Since December 2006, there had been no visitation with Sophia. The child welfare worker had requested petitioner to call her to arrange supervised visits with Sophia, but after Kelsey’s AWOL and petitioner’s lying to her, Sophia did not wish to visit with petitioner or the grandmother.
Petitioner appeared at the June 6, 2007 post-permanent plan review with counsel. Counsel raised the issue of cessation of visitation between petitioner and Sophia and expressed his concern that visitation should not be at the discretion of Sophia and his concern that the foster family was trying to thwart visitation. Sophia’s counsel confirmed that Sophia wanted a “time out” from the visits.
The court recognized the “need for contact between a girl and her mother . . .”, but also noted the “practical” limitations “in terms of making orders that kids will comply with.” It then addressed Sophia, telling her that visitation was not up to her: “Sophia, it is not up to you to decide that you’re going to stop having contact with your mother. You’re a dependent of this court. You’re subject to the orders that I make and everyone in this case, including you, have obligations to bring this family back together as best it can be brought, and that involves continuing to work through the issues that you have with your mother. [¶] So, it’s not okay for you to just say, ‘Later.’ [¶] Do you understand that?” Sophia replied, “Yes.” The court continued: “So, I’m not going to force you to start visiting her right now, but I do want you to understand that you have to work along with all of the rest of us to get this situation straightened out as best we can. [¶] So, the social worker is going to have discretion about visits. You are to comply with the directions and suggestions that she makes and I don’t want to see another hearing where you come back here and say that, ‘I’m simply not going to have contact with my mother.’ ” The minute order of the hearing provides that “[p]resent order is continued.”
On September 5, 2007, a hearing was held to appoint new counsel for Sophia on the children’s counsel’s declaration of a conflict. During this hearing, petitioner’s counsel attempted to raise a “new development” that Sophia’s foster parents (the C.’s) had “stopped all visitation, all scheduled visitation and phone contact, and refuse[d] to accept a birthday present that [petitioner] wanted to tender.” The court informed counsel of the need to raise such an issue properly and warned, “I don’t want these kids contacted or birthday presents or anything else interfered with.”
On November 16, 2007, petitioner requested a court date for November 21st on her claim that the child welfare worker and the foster parents had deliberately not complied with the court’s visitation order by “shutting down” all contact between petitioner and Sophia, that there had been no visitation, no telephone contact, and a refusal to give a birthday card to Sophia.
On November 21, 2007, petitioner filed a section 388 petition seeking to change the disposition order placing Sophia out of home. Petitioner claimed as changed circumstances that she had obtained safe and suitable housing for Sophia, that she was clean and sober, and that the social worker had terminated all contact between her and Sophia without court authorization. She sought placement of Sophia in her home. She claimed the change was in Sophia’s best interest because she had a loving parent-child bond with Sophia and that Sophia would benefit from having extended contact with her siblings and maternal family. She claimed to be able to provide a safe and nurturing home for Sophia. The petition was supported by petitioner’s declaration and contained conclusory statements that she had safe and stable housing, that she was clean and sober and able to take physical custody of Sophia, that the child welfare worker and the foster parents had refused to allow her visitation and had cut off all her contact, refusing to pass on a birthday card to Sophia.
The court deferred visitation issues to the November 27, 2007 court date. On November 27, petitioner’s section 388 petition was ordered set for March 20, 2008, the same date as the section 366.26 hearing.
November 27, 2007 Post-Permanent Plan Review.
In the report prepared for the November 27, 2007 hearing, the Agency recommended that the foster parents be allowed to adopt Sophia and that a section 366.26 hearing be set for Sophia. The C.’s stated that they love Sophia and had agreed to adopt her. The report also related: “Sophia continues to flourish in the home of the [C.’s]. She does not wish to visit or have any further contact with her mother or grandmother, who have severely disappointed her. . . . She is an Honor Roll student and wants the [C.’s] to become her adoptive parents. The [child welfare worker] is recommending a .26 hearing be set today to go forward with her adoption for Sophia and legal guardianship for Kelsey.”
The report attached a letter from Sophia about her wish not to see her mother or grandmother. In the letter, Sophia described her relationship with her mother as one in which see feels a lack of trust because her mother had lied to her. She believed that dealing with mother along with everything else in her life was “just waytoo much to handle. Please understand that I love my family very much, but it should not be on my shoulders to glue us all back together, your honor.” She does not want to see her mother and wishes to visit only the family members who do not pressure her. The report also stated in light of Sophia’s statements to the child welfare worker and to her attorney that she did not wish to have visits or phone contact with her mother, Sophia’s social worker, Joyce Manning, had stated she would not force Sophia to have supervised visits or phone contacts with family members. The report stated that petitioner was informed of Sophia’s wishes (apparently sometime between May 5 and August 5, 2007), and that “she agreed that Sophia should not be forced to visit with her.” (Italics added.) The report set forth the “visitation schedule” for Sophia and petitioner “[a]s appropriate.”
According to the status review report (prepared before filing of petitioner’s section 388 petition), petitioner’s address and phone number remained unknown. She had stated to the worker that she would like her children back at some time in the future. Petitioner was aware she was not ready to take on the responsibility, but was trying to make changes.
At the November 27, 2007 hearing, the court observed that it had received and reviewed the report, as well as other documents, including a letter dated November 20, 2007, from Sophia’s therapist regarding Sophia’s wishes and a two-page letter from Sophia addressed to the judge. In the letter, Sophia describes herself as “independent” and “not your average 11 year old.” Sophia’s letter to the judge recounted petitioner’s neglect and abandonment of her to an abusive father from the time Sophia was three years old. “From then on, so many mistakes were made by my mom, that I’ve now realized that I can’t take it anymore. I’ve requested to postpone all contact with my mom.” Sophia states she loves her mom and would like the possibility of having contact with her. However, she states she “chos[es] to have a relationship with the ones who are safe [and] haven’t hurt me in so many ways.” Sophia also stated in this letter that the C.’s were “caring parents” and that “this is the longest I’ve been at a home that was safe and comfortable to me.” She stated that she truly wished “to be adopted by the [C.’s] because after the four years of living with them, I’ve grown to know that they all are kind and safe, they are the type of people that I want in my life forever.”
Petitioner’s counsel requested a contest on setting the section 366.26 review hearing, arguing that the court might find there was insufficient change of circumstances or an insufficient basis to change the permanent plan so that a section 366.26 hearing would not be required. The court denied this request, since all issues relating to reasonable services and termination of services had been ruled upon long ago.
The issue of whether the court should hear petitioner’s section 388 petition was raised and argued. The court indicated that it did not believe that it was required to calendar the petition, as it did not meet the requirements. Nevertheless, it heard counsel on the issue and ultimately scheduled the section 388 petition to be heard at the same time as the section 366.26 petition.
The visitation issues raised by petitioner’s request for a court date were heard and considered. The court stated that counsel “alleges deliberate noncompliance with court orders on the part of the social worker Joyce Manning and the foster parents in terms of shutting down contact between [petitioner] and [Sophia]. No visitation, no telephone contact, and refusal to give birthday card to the minor.” Citing In re Nicholas B. (2001) 88 Cal.App.4th 1126, for the proposition that the court has the sole and exclusive authority regarding visitation and acknowledging that there had been an order for visitation, counsel argued that there had been a “total breakdown between all family contact . . . that is in direct willful contradiction of the Court’s existing order and that it is absolutely egregious and requires sanctions.” Counsel requested “$1,000 in sanctions against the Agency for willful noncompliance of the court’s order.” The court did not require any response from the Agency or Sophia’s counsel, but referred to the report and attachments to the report, stating that these documents “detail more than adequately facts which controvert the allegations that Mr. Reid [counsel for petitioner] makes on behalf of his client. I don’t believe that there is any way to conclude based on those bare allegations that the Agency has been remiss. It certainly has not failed to follow the letter and the spirit of any order I have given. [¶] I decline to so find and so the requests contained in Mr. Reid’s request to add the matter to the calendar are denied, each and every one of them.” The court then set the date for the section 366.26 and section 388 hearings. At that point, counsel for petitioner argued that “it is improper for the therapist of the minor to have any determination or control over whether or not visitation occurs, that that is an improper delegation of judicial authority.” Counsel for petitioner then stated that he objected to the “ex parte” communication from counsel presenting the letter to counsel from Sophia’s therapist, Amy Scott, as he had just received the letter that morning and there was no opportunity to cross-examine her. The court noted the objection.
Finally, the court ordered sibling visitation with Kelsey to continue and granted continued discretion to the child welfare worker on Sophia’s visitation with Kelsey, stating that contact should continue. The court set a pretrial case management conference for March 6, 2008. The 366.26 hearing was ordered set for March 20, 2008. Sophia’s foster parents, the C.’s were appointed her de facto parents. The minute order of the hearing reflects that in other respects, the existing order was continued.
Petitioner timely filed a notice of intent to file a writ petition on December 3, 2007, challenging the order setting the 366.26 hearing and requesting a stay of the March 20, 2008 section 366.26 hearing. The Agency’s opposition was filed on February 21, 2008.
DISCUSSION
I.
Petitioner contends the court committed reversible error by receiving a letter by Sophia’s therapist at the November 27, 2007 hearing. The letter was not attached to the social worker’s report and therefore, petitioner contends the social worker report exception to the hearsay rule does not apply. (§§ 355, 358.) Moreover, the letter was provided to petitioner’s counsel only one hour before the hearing. Counsel previously had been unaware of its existence. Petitioner contends, without citing to the record, that the court relied upon the letter in reaching its decision to set the section 366.26 hearing and the decision not to force Sophia to visit her mother.
The letter was dated November 20, 2007, and was supplied pursuant to the request of Sophia’s attorney to provide “an update regarding Sophia [B.] regarding her desire to be adopted by the [foster] family and future visits with her biological family.” In it, the therapist related that Sophia had expressed a “strong desire to be adopted by [Mr. and Mrs. C.]. She is doing extremely well with them, both at home and school. . . . It is my professional opinion that being adopted by the [foster] family is in Sophia’s best interest.” With respect to the visitation issue, the therapist related Sophia’s desire to suspend visits with petitioner and related that “I completely support her need and desire to take care of herself and set appropriate boundaries with others in her life, family and otherwise. [¶] . . . [A]t this time she does not want to have any contact with her mom. She would like to leave the possibility of future contact with her mom open as Sophia maintains some hope that her mom may change and heal at some point in her life.”
At the outset of the hearing, the court listed the items calendared for that morning. It identified several documents it had received, including two documents it received that morning from Sophia’s counsel: “One being a two-page letter from Sophia, and the second being a copy of a letter from [the therapist] with respect to [Sophia] and her wishes.” The court stated it had “reviewed all of these documents,” and the status review report and its attachments, and was prepared to address the matters raised.
Petitioner raised no objection to the letter at that time. Rather, at the end of the hearing, after the court had ruled on the issues relating to Sophia and setting of the section 366.26 hearing, petitioner’s counsel objected to the therapist’s letter, stating he had only received it that morning and that he believed the court’s comments indicate the court both read it and was influenced by it. By failing to timely raise her objections in the court at the outset of the hearing or at least when the court stated it had reviewed the recent documents, petitioner has waived any claim of error. (Evid. Code, § 353, subd. (a).) Failure to timely object results in a waiver or forfeiture of the objection. (3 Witkin, Cal. Evidence (4th ed. 2000) § 372, p. 461.)
Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (Italics added.)
Moreover, the record does not demonstrate that the court relied upon the therapist’s letter in referring the matter for a section 366.26 hearing or in rejecting petitioner’s visitation claim. At the hearing, counsel for Sophia related that Sophia’s feelings were consistent with what the social worker had presented in the status review report prepared for the hearing. That report related that “Sophia continues to state she does not wish to see her mother or grandmother.” A letter to the judge from Sophia, relating her feelings, was attached to the report. An additional letter from Sophia to the judge was also received, over petitioner’s objection. In it Sophia stated her desire for adoption by the foster family and the reasons therefore. That letter also discussed her feelings about her mother and desire not to have contact with her, but to leave open the possibility of contact.
In addressing the question of the children’s best interest, the court specifically referred to the “contents of the report” from the social worker “as well as the communications from at least one of these children which speak volumes about that latter issue.” The court was referring to the letter from Sophia and not to the letter of the therapist. Petitioner does not here contend that admission of Sophia’s letter was erroneous or that she was denied due process by the court’s reliance upon it, perhaps because Sophia was present in court at the time and counsel admitted he was not challenging the authenticity of the letter or the genuineness of the feelings expressed therein. On appeal, petitioner challenges only presentation of the therapist’s letter and not Sophia’s letter.
At no point in the hearing, other than acknowledging it had received and reviewed the therapist’s letter, does the court reference or rely upon the therapist’s opinions regarding Sophia’s placement or the visitation issue. As petitioner acknowledges, the therapist’s letter was not moved or admitted into evidence. Moreover, the bulk of the letter merely reiterates Sophia’s desires as related to the therapist. Those desires regarding wanting to be adopted by the foster family and not to have contact with her mother are amply described in Sophia’s two letters and in the status review report prepared for the hearing. Consequently the therapist’s letter was merely cumulative. There is no indication that the court gave the therapist’s recommendations any particular weight. Rather, it appears the court gave great weight to the social worker’s report and to Sophia’s expressed wishes in these matters. We do not believe the court erroneously admitted and relied upon the therapist’s letter.
Were we to indulge the very doubtful proposition that the court should have expressly stated that the therapist’s letter would not be considered, we would nevertheless find any error harmless. Petitioner has failed to show it is reasonably probable the result would have been more favorable to her had the court not received or reviewed the therapist’s letter. We note that Evidence Code section 353, subdivision b), adopts this standard, which is that of article VI, section 13 of the California Constitution: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)
The California Supreme Court has interpreted this language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error and has applied the same test in dependency matters. (In re Celine R. (2003) 31 Cal.4th 45, 59-60 [failure to provide separate counsel for the child].) The Supreme Court explained that this standard of prejudice is particularly appropriate in the dependency context “[a]fter reunification efforts have failed [and] it is not only important to seek an appropriate permanent solution—usually adoption when possible—it is also important to implement that solution reasonably promptly to minimize the time during which the child is in legal limbo. A child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child. [Citation.] Courts should strive to give the child this stable, permanent placement, and this full emotional commitment, as promptly as reasonably possible consistent with protecting the parties’ rights and making a reasoned decision. The delay an appellate reversal causes might be contrary to, rather than in, the child’s best interests.” (Celine R., at p. 59.)
Petitioner contends that the standard for harmless error in the erroneous admission of the letter is that involving a deprivation of federal due process rights. “Courts of Appeal have found that a constitutional due process violation in the dependency context requires application of the harmless beyond a reasonable doubt standard, since the error is of federal constitutional dimension. [Citations.]” (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1132.) Even assuming that to be the correct standard, we are convinced that any error in the court’s receiving and reviewing the therapist’s letter was harmless beyond a reasonable doubt.
II.
Petitioner contends that the court committed reversible error by delegating power over whether or not visitation occurred to the social worker and to Sophia.
Waiver.
At the June 6, 2007 hearing to review the permanent placement, petitioner’s counsel raised the matter of visitation, expressing his concern about the cessation of all contact between Sophia and petitioner and pointing out that no court order had denied visitation and that visitation was not in the discretion of a 10-year-old. Sophia’s counsel affirmed that Sophia wanted a “time out” from the visits with petitioner. The court then lectured Sophia, making it clear that visitation was not her choice and that she needed to “work along with all the rest of us to get this situation straightened out as best we can.” Nevertheless, the court refused to force Sophia to visit, in effect approving the suspension of visitation that had occurred. The court gave the social worker discretion about visits, and ordered Sophia to comply with the directions and suggestions made by the social welfare worker. Petitioner did not appeal the court’s refusal to force visitation or its continued delegation to the social worker of discretion to determine whether and when to resume visits. Nor does the record show that petitioner has appealed from any of the orders granting discretion over visits to the social worker from the initiation of the dependency through June 6, 2007.
“[A]n appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order . . . .” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151; see, e.g., In re Liliana S. (2004) 115 Cal.App.4th 585, 589.) Petitioner had previously agreed Sophia should not be forced to visit and did not specifically challenge the court’s order granting discretion to the social worker at the June 6, 2007 hearing. She had 60 days after rendition of the order to appeal the order granting discretion to the social worker. (Cal. Rules of Court, rule 8.400(d).) Having failed to do so, petitioner is foreclosed from challenging those previous orders on this appeal.
The instant appeal is from the November 27, 2007 order. At that hearing, the court did not make a new order granting discretion to the social worker over petitioner’s visitation with Sophia. Rather, it refused to grant petitioner’s request for sanctions against the Agency and it determined that petitioner’s allegation that the Agency had been remiss in failing to comply with the court’s existing visitation order was untrue. As it had previously granted discretion to the social worker to pursue visitation as appropriate, the court correctly determined that the Agency had not violated its existing order regarding visitation. The court continued in place the existing order, except as otherwise modified. The existing order granted discretion to the social worker concerning visitation.
Petitioner never expressly objected below to the delegation of discretion over visitation to the social worker. She objected to delegation to the therapist—a delegation that never occurred. She also objected to Sophia’s being in control of the decision whether to visit. The court had previously made clear to Sophia that she was not in charge of the visitation determination and had ordered her to cooperate and comply with the social worker’s instructions in regard to visits. Sophia stated she would do so. There was no delegation of judicial authority to Sophia.
Moreover, the reporter’s transcript of the November 27, 2007 hearing demonstrates that there was no request from petitioner to set aside the court’s order of June 6, 2007 that effectively approved the previous suspension of visitation and granted discretion to arrange visits to the child welfare worker. Petitioner did not even acknowledge that the lower court had approved the suspension of visitation, much less seek to set aside the court’s existing orders. She sought only sanctions for failure to comply with the asserted existing court order for visitation. Similarly, although she claimed lack of visitation as a reason for her section 388 request to change the placement order, she did not seek to set aside the existing order granting discretion to the social worker.
Consequently, petitioner has forfeited her claims of error by her failure to raise them in the court below. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502, and cases cited; In re Christopher B. (1996) 43 Cal.App.4th 551, 558; see Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) 8:270.3, 8:264-8:265, pp. 8-146 to 8-147.)
Visitation.
Post permanent plan visitation is governed by section 366.26, subdivision (c)(4)(C) which provides: “The court shall also 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.”
Due process guarantees apply to dependency proceedings. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.) “Statutory procedures used for termination of parental rights satisfy due process requirements only because of the demanding requirements and multiple safeguards built into the dependency scheme at the early stages of the process. ([In re Hunter S. (2006)] 142 Cal.App.4th [1497,] 1504 [(Hunter S.)], citing Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256, and In re Marilyn H. (1993) 5 Cal.4th 295, 307-308.) ‘If a parent is denied those safeguards through no fault of her own, her due process rights are compromised.’ (Hunter S., at p. 1504.)” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1006, italics added.)
In Hunter S., supra, 142 Cal.App.4th 1497, the appellate court reasoned the juvenile court did not properly enforce its order for visitation between the parent and child, and thus deprived the parent of the opportunity to establish the beneficial relationship exception under former section 366.26, subdivision (c)(1)(A), in violation of the parent’s due process rights. (Hunter S., at pp. 1504-1505.)
“A parent seeking to establish a beneficial parent-child relationship sufficient to avoid the termination of parental rights must show, by a preponderance of the evidence, that he or she has ‘maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ (§ 366.26, [former] subd. (c)(1)(A), italics added.) In this context, appellate courts have recognized ‘a lack of visitation may “virtually assure[] the erosion (and termination) of any meaningful relationship” between mother and child.’ (Hunter S., supra, 142 Cal.App.4th at p. 1504, quoting In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.)” (In re Valerie A., supra, 152 Cal.App.4th at p. 1007.) “To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) ‘Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child.’ (Hunter S., at p. 1505.) If a parent is deprived of visitation with his or her child, the parent is not going to be able to establish the exception or have any meaningful opportunity to avoid the termination of parental rights under section 366.26, [former] subdivision (c)(1)(A). (Hunter S., at p. 1505.) Thus, the erroneous denial of parent-child visitation compromises a parent’s due process rights to litigate and establish the section 366.26, subdivision (c)(1)(A) exception. (Hunter S., at p. 1504.)” (In re Valerie A., at p. 1007.)
Harmless error.
Were we to assume that petitioner had not forfeited her claim of error and that the court erred in delegating visitation to the Agency or in refusing to set aside its previous order allowing visitation to be suspended, we are convinced any such error was harmless.
Petitioner has failed to show it reasonably probable the result would have been more favorable to her had visitation not been suspended. (In re Celine R., supra, 31 Cal.4th 45, 59-60.) She claims that she will be deprived of the opportunity to come within the parent-child exception to termination of parental rights, which requires the parent to have maintained regular visitation. (§ 366.26, subd. (c)(1)(B)(i).) We are convinced that petitioner cannot meet the requirements of the exception, regardless of the suspension of visitation.
Initially, we point out that the record contains ample evidence of detriment to Sophia’s physical and emotional well-being from visitation with petitioner, sufficient to support the court’s approval of the suspension of visitation. This evidence includes Sophia’s nightmares around visits, her upset and disappointment at mother’s cancelling visits, and her own pleas that she “can’t take it any more.”
The exception requires the parent to show not only that she maintained regular visitation and contact with the child, but also that the child would benefit from continuing the relationship. In order to come within the section 366.26, subdivision (c)(1)(B)(i) exception to the statutory preference for adoption, “[a] parent must show more than frequent and loving contact or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th 823, 827.) ‘Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.’ (In re Autumn H. [(1994)] 27 Cal.App.4th [567,] 575.) The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. (In re Autumn H., at p. 575; In re Elizabeth M.[, supra, ] 52 Cal.App.4th [at p.] 324.)” (In re Mary G. (2007) 151 Cal.App.4th 184, 207, fn. omitted.) “The juvenile court may reject the parent’s claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The parent does not shoulder his or her burden by showing that the child would receive some incidental benefit from a continued relationship with the parent. (In re Autumn H., at p. 575.) Rather, the relationship must promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new adoptive parents. (Ibid.) “[T]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Ibid.; see also In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; In re Jasmine D., at p. 1350.)
This standard “reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
In this case, even without considering the recent suspension of visitation, with the exception of the year 2004, petitioner has not maintained regular visitation over the course of the dependency, either before or after termination of reunification services. Although she visited regularly during 2004, petitioner almost ceased visiting in 2005, cancelling eight of 12 scheduled visits for the first half of the year and visiting only twice in the second half of the year. In 2006, petitioner scheduled four visits in the first half of the year, but cancelled two, visiting only twice. In the second half of 2006, petitioner visited on three occasions and cancelled twice. She also visited twice at the grandmother’s home. Sophia began refusing visits after discovering petitioner had lied to her about Kelsey’s whereabouts during her AWOL, sometime after April 17, 2007. It does not appear that Sophia refused to see her mother before that time, yet petitioner’s visits ceased around December 2006, when the court ordered all visits to be supervised, including those at the grandmother’s home. Mother would not provide the Agency with contact information and apparently did not contact the Agency to arrange a supervised visit after December 15, 2006.
Moreover, there is nothing in the record to indicate that petitioner fills a parental role as to Sophia or that she has done so at any time before or after Sophia was taken into protective custody five years ago or that Sophia might suffer the great harm from termination of petitioner’s parental rights that could trigger application of the exception.
On the record before us, petitioner fails to show it is reasonably probable that but for the suspension of visitation she would come within the exception.
We recognize that some courts have found that a due process violation is subject to the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24) of beyond a reasonable doubt. Division Four of this District has held that procedural due process violations in dependency cases should be subject to a standard of clear and convincing evidence of harmless error. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515.) Petitioner does not argue that any error in improperly delegating or suspending visitation would be “structural error” requiring reversal without regard to the strength of the evidence or other circumstances. (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1115-1116, 1118 [failure to even attempt to give parent statutorily required notice of a termination hearing deprived parent of a meaningful opportunity to be heard].)
Even giving petitioner the benefit of the doubt, we would conclude that any error in regard to the suspension of visitation in the circumstances presented was harmless under the clear and convincing standard and would also be harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
DISPOSITION
The order setting the section 366.26 hearing is affirmed. The writ petition is denied. The decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).
We concur: Haerle, J., Lambden, J.