Opinion
A148585
05-24-2017
In re ARIANNA T., a Person Coming Under the Juvenile Court Law. MARIN COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. WENDY T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. JV25982A)
Wendy T. (Mother), mother of 12-year-old Arianna T., appeals from the juvenile court's orders terminating her parental rights and ordering adoption as the permanent plan, pursuant to Welfare and Institutions Code section 366.26. Mother contends these orders must be reversed because the court erred and her due process rights were violated when (1) the court found she did not have standing to assert the sibling relationship exception to termination of parental rights and disallowed critical testimony regarding the exception, and (2) the decision whether visitation would take place was delegated to Arianna following the 12-month review hearing, which compromised Mother's ability to establish the parent-child relationship exception to termination of parental rights. We shall affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother also initially contended the notice requirements of the Indian Child Welfare Act (ICWA) were not satisfied. Thereafter, at a May 4, 2017 hearing, the juvenile court found that ICWA is not applicable to this case, based on the Department having provided additional notice to certain Indian tribes and the tribes' responses. On May 17, Mother's counsel informed this court that, in light of these recent developments, the ICWA issue has now been adequately addressed and is moot.
FACTUAL AND PROCEDURAL BACKGROUND
Many of the facts regarding events occurring before the section 366.26 hearing are taken from our prior nonpublished opinion in this matter, in which we denied Mother's petition for extraordinary writ, filed pursuant to California Rules of Court, rule 8.452. (Wendy T. v. Superior Court (Jan. 15, 2016, A147038) [nonpub. opn.].)
On August 25, 2014, the Marin County Department of Health and Human Services (Department) filed an original petition alleging that Arianna came within the provisions of section 300, subdivisions (b) and (g). Specifically, as to subdivision (b), the petition alleged that, on August 22, Mother was contacted by Novato police officers due to her erratic behavior. Mother said that she was under the influence of methamphetamine; she was also in possession of methamphetamine and paraphernalia. Mother had no plan for picking up Arianna from daycare and, according to the officers, she "would be unable to parent a child as she was behaving erratically, disoriented, unable to keep her body still or answer questions in a linear fashion." The officers therefore arrested Mother on charges of child endangerment, possession of and being under the influence of a controlled substance, and violation of probation. The petition further alleged that Mother and Arianna had reportedly been homeless for the previous six weeks. As to subdivision (g), the petition alleged that Arianna had been left without any provision for support when Mother was arrested, and there were no other adults to care for her.
In the detention report, filed on August 27, 2014, the social worker reported that Arianna had been placed in a foster home. The social worker further reported that the Department had investigated Mother eight times since 2006. In 2013 an allegation of severe neglect was substantiated as a result of Mother's driving under the influence of pain medication with Arianna in the car. Mother had previously declined the Department's offer of a voluntary service plan. In the proposed case plan, the Department recommended, inter alia, that the court order a minimum of two hours of supervised visitation for Mother.
At the August 27, 2014 detention hearing, the juvenile court ordered Arianna detained. The court ordered visitation for Mother, and also granted the Department's "request for half sister Ashley [T.] to have unsupervised visitation with Arianna to the extent she is willing and able to do so." The court also granted the Department's request for Mother to provide whatever contact information she had for Arianna's maternal grandparents and grown half sisters, including Ashley.
In the October 2, 2014 jurisdiction report, the social worker reported that, since 1996, the Department had received 16 referrals regarding Mother, some for Arianna and some for Mother's three older children. Since 1994, Mother had had eight criminal convictions, primarily related to substance abuse.
On October 15, 2014, Mother submitted to jurisdiction.
In the disposition report filed on November 7, 2014, the social worker reported that Arianna, who was described as independent, intelligent, and engaging, had moved to a foster-adoption home and was adjusting well. Mother had a supervised visit with Arianna on August 29. After that visit, the social worker was unable to contact Mother to set up a visitation schedule. When the social worker learned that Mother was incarcerated, he arranged a visit at the jail, which took place on October 25. Another visit was scheduled for November 8. The social worker had encouraged Arianna and Mother to write letters to each other, and had arranged for them to speak by telephone. Mother acknowledged that she needed to be sober and physically and emotionally healthy to care for Arianna. The Department recommended that Arianna remain in her foster care placement and that Mother receive reunification services.
On December 15, 2014, Mother submitted to disposition.
Arianna's biological father was not offered reunification services and is not a party to this appeal.
Six months later, on June 15, 2015, the Department filed a status review report. The social worker reported that Mother had been in a residential treatment program since April, and had been sober since February, after several relapses since the dependency began. She was receiving comprehensive medical, mental health, and medication management. She was expected to remain in residential treatment for up to one year, to comply with her probation requirements.
Arianna had moved to a new foster-adopt placement in February. She was very happy in the home and had settled in well with the family. The social worker reported that visitation had been "difficult and sporadic for the duration of this case." Between August and December 2014, Mother had participated in only five supervised visits. After Mother entered her residential treatment program in San Francisco in April 2015, Arianna had refused to be transported to visits, stating that she wanted to have more "normal" child experiences. Mother therefore traveled to Marin County for five supervised visits, and Arianna subsequently traveled to San Francisco for four more visits. Arianna was currently refusing to have telephone contact with Mother. The Department recommended continued reunification services.
On July 6, 2015, the juvenile court ordered an additional six months of reunification services for Mother.
On September 21, 2015, Arianna's court appointed special advocate (CASA) submitted a report in which she described Arianna, at 11 years old, as "energetic, competent, funny, lovable, and highly intelligent." She continued to thrive in her foster home and her attachment to her foster family, particularly her foster mother, was apparent. This home was, the CASA believed, "one that uniquely suits Arianna."
The CASA wrote that Mother had been asked to leave her residential treatment program in late June 2015, because she was not complying with the rules. In late July, Mother was arrested and briefly jailed for violating the terms of her probation. As of September 8, Mother was again in jail for a probation violation and failure to appear in court. In the three months since Mother had left the program, she had participated in, at most, three visits with Arianna. The CASA believed that, "regardless of [Mother's] wish to get well and her obvious strong feelings for Arianna, [she] is simply unable to take control of her life at this time; by reason of addiction, her own difficult childhood, and other possible mental health issues." The CASA therefore recommended that reunification services be terminated and the matter be set for a section 366.26 hearing.
In a September 23, 2015 12-month review report, the social worker reported that Mother had been discharged from her residential treatment program on June 11. She had been acting in a " 'bizarre manner,' " and the staff suspected she was using drugs. She refused to take a drug test and then completely stopped following program rules. She was therefore asked to leave the program. On June 24, Mother had entered a 30-day detoxification program, which was mandated by the terms of her probation. After leaving that program, Mother stayed at a homeless shelter, with friends in a motel, and in a tent with her new boyfriend. She told the social worker that she had only experienced two relapses over the last several months. Mother was arrested in July, after being found to be under the influence, and was again arrested in early September, after failing to appear in court regarding the previous arrest. She remained in jail at the time of the report.
Regarding visitation, the social worker reported that, between June and September 2015, Mother had participated in only one visit and had missed 11 visits. She had indicated that she did not want Arianna to know that she was again in jail, and did not want Arianna to visit until she knew the length of her current sentence. Arianna continued to thrive in her foster-adopt home, and had "reportedly asked her foster parents when the court case will be 'over' and when she can be adopted[.]"
The social worker concluded that Mother "is in no way prepared to take custody of Arianna after a year of Family Reunification Services." The Department therefore recommended that the court terminate reunification services and set a section 366.26 hearing.
At the October 5, 2015 12-month review hearing, Mother's counsel stated that Mother had just been released from custody and had entered a new residential treatment program. Counsel also requested that a contested hearing be held.
On October 16, 2015, the day scheduled for the contested hearing, Mother's counsel asked the court for a continuance so that Mother could collect needed documentary evidence. The Department did not oppose the request, and it was agreed that Mother would provide the Department with any documentary evidence by November 6, the Friday before the Monday hearing. The court granted the request for a continuance.
At the November 9, 2015 contested 12-month review hearing, Mother did not appear, but her counsel made a statement on her behalf. The court took the matter under submission, and on November 16, 2015, it terminated reunification services and set the matter for a March 14, 2016 permanency planning hearing, pursuant to section 366.26. The court explained that reasonable services had been provided to Mother, "though she did not make use of some of those services. [¶] She has not been able to participate regularly and to sustain substantial progress in her various treatment programs. Starting June 2015 through September 2015, 12 visits with Arianna were calendared and organized for her, but she appeared for one of those visits. She was arrested in July 2015 and in September 2015 for probation violations. These are some of the disruptions that have occurred over the past several months . . . .
"The court—in reading the reports and in listening to arguments, [Mother] clearly, from my perspective, clearly has insight that Arianna needs stability, yet in the actual day-to-day, month-to-month work by [Mother], she has not established stability for herself.
"The court finds by a preponderance of the evidence that returning Arianna to [Mother] at this time would create a substantial risk of detriment to Arianna's safety, protection, her well-being, and the court does terminate the reunification services."
The court ordered supervised visitation of two hours per month pending the section 366.26 hearing.
On November 23, 2015, Mother filed a notice of intent to file writ petition and on January 15, 2016, we denied her petition for extraordinary writ, filed pursuant to rule 8.452, in which she sought review of the juvenile court's findings and orders terminating her reunification services and setting the section 366.26 hearing. (Wendy T. v. Superior Court, supra, A147038.)
In the section 366.26 report filed on February 26, 2016, the social worker reported that Arianna, now in sixth grade, had been living with her foster/adopt family for more than a year, and the family had "made a commitment to adopting her and are actively taking steps toward this goal. . . . She is a bright, happy and well-adjusted child, who loves being a part of a family." She had "formed a close and loving relationship with her fost-adopt family" and "relate[d] to her fost-adopt parents in a relaxed and casual manner. They have easy conversation together, and Arianna looks to them to get her daily basic and emotional needs met. Arianna has made many friends in the neighborhood and at school, and by accounts is appearing settled and secure in her home and her community. She is safe, being very well cared for and is looking forward to being adopted."
With respect to visitation, the social worker reported that Arianna had not had a visit with Mother in seven months. The social worker further stated that visitation between Arianna and Mother "has been sporadic throughout the dependency case, and was the most consistent when [Mother] was in one of her residential treatment centers or in jail. During the moments that she was not in treatment, [Mother] did make it to some visits, but also needed to cancel other times or did not show up or check in. Arianna herself made it clear finally that she was not interested in having a visit with her birth mother, and asked that the mandated visitation end. In November 2015, when the court ended reunification services, they allowed a visit to happen only if Arianna initiated the interest. In the seven months [sic] since that time Arianna has not expressed a desire to have a visit with Mother."
The Department recommended that the parental rights of Mother and the biological father be terminated and that the court order a permanent plan of adoption for Arianna.
Arianna's CASA filed a memorandum on February 29, 2016, in which she informed the court that she had "watched with pleasure the developing bonds between [Arianna, her foster-adopt parents, and her seven-year-old foster brother], and [was] impressed by the degree of attention paid to Arianna's needs, as she adapts to the unaccustomed discipline and structure of family life." The CASA believed "Arianna will be able to achieve her considerable potential in this family," and therefore recommended that the court terminate parental rights and order adoption as the permanent plan.
The section 366.26 hearing took place on April 21, 2016. At the outset of the hearing, Mother's counsel stated that Mother was planning to raise the parental and sibling relationship exceptions to adoption, but that counsel had just learned of Arianna's sister Ashley, who was presently on her way to the hearing and wanted to file a petition under section 388, subdivision (b) so that she could have standing to raise the sibling relationship exception herself. Ashley also would be requesting appointment of counsel. The court expressed concern that counsel had not previously informed the court and other parties about this plan. Counsel said Mother was "prepared to move forward as to our exceptions. And then perhaps when she comes the court can pause the hearing and hear from [Ashley] and consider whether her 388 can be considered midway through the .26." The court ordered the hearing to proceed.
Sarah Colton, Arianna's adoptions social worker, who wrote the section 366.26 report, testified that Arianna was doing well in school and participating in other activities, including softball. She had friends at school and in the neighborhood and was very happy and comfortable in her foster-adopt home.
Colton testified that she had visited Arianna at her foster-adopt home three times. The last time, on March 24, 2016, she had asked Arianna if she had any thoughts about Mother, and Arianna said she wanted to see her, and was making "paper earrings" for her. The social worker asked "if she wanted to see her mom once or if she wanted . . . it to be a continual bases [sic] and she said just once." Colton subsequently related this conversation to Arianna's primary social worker, "who said she would work on setting up a visit," which, as far as Colton knew, was still in the process of being arranged. Colton also asked Arianna at every visit how she felt about being adopted, and testified that "I sort of got the impression that she thought she was adopted already, and she's happy, she says she likes it and she's happy about being adopted." Colton believed the prospective adoptive parents would be open to contact with Arianna's siblings.
Mother also testified at the hearing. She did not visit Arianna for quite a while at the beginning of the dependency because of her condition and the guilt she felt about her relapse. Arianna also missed two visits in October 2015, due to a track meet and a parent-teacher conference. Mother had not been offered any visits with Arianna since the 12-month review hearing. She had contacted the social worker, who sent her a letter stating that it was up to Arianna if she wanted to see Mother "and that was final." The social worker had sent Mother her the social worker's address so that Mother could send letters to Arianna; Mother had sent a package but had heard nothing since.
Mother described her relationship with Arianna as "very close." After Arianna's removal, Mother did not maintain that closeness due to her guilt and shame about her relapse. Once they started having visits, "it was very nice." Mother was never notified that Arianna had recently asked to see her.
Mother then testified about Arianna's relationship with her half sibling Ashley, who was 25 years old at the time of the hearing. Arianna lived with Ashley from the time Arianna was born until Ashley turned 18. The two girls had daily interaction during that time, and Ashley would watch Arianna when Mother went to her "12-Step" meetings. After Ashley moved out, she continued to have contact with Arianna. Mother was aware that Ashley and Arianna had at least one visit after Arianna was removed. During a visit Mother had with Arianna in June 2015, Arianna had asked Mother if Ashley could join them for a visit.
Ashley T. testified that she first met Arianna when she moved to California to live with Mother; she was 15 years old and Arianna was one or two years old. They lived together until Ashley moved out of Mother's house, at about age 19. While they lived together, Ashley took care of Arianna every day, playing with her, feeding her, picking her up from daycare, and taking her shopping. She last saw Arianna when Arianna was in emergency foster care, after she and the foster parents set up a visit. She tried to visit Arianna again after that first visit, but due to changes in Arianna's caseworker, she was not able to arrange another visit. Arianna's current foster parents had never contacted Ashley. Ashley further testified that she and Arianna loved each other very much. She was willing to file a petition to assert her sibling relationship with Arianna.
On May 9, 2016, the juvenile court found by clear and convincing evidence that it was likely that Arianna would be adopted. The court ordered a final visit between Mother and Arianna to take place within a month. With respect to the sibling relationship exception to adoption, the court found "that the current relationship between Arianna and Ashley is important; however, that relationship does not outweigh the benefits of the adoption for Arianna." The court then terminated the parental rights of both Mother and the biological father.
The court further stated that it understood that the sisters would like to have visits and that visitation between them could be "developed through the consortium process."
On June 3, 2016, Mother filed a notice of appeal.
DISCUSSION
I. Asserted Errors Related to the Sibling Relationship Exception
Mother first contends the court erred when it found she did not have standing to assert the sibling relationship exception to termination of parental rights, under section 366.26, subdivision (c)(1)(B)(v), and therefore disallowed critical testimony regarding the exception. She further asserts that the court's error amounted to a violation of her due process rights.
A. Trial Court Background
As noted, at the outset of the April 21, 2016 section 366.26 hearing, Mother's counsel informed the court that Arianna's half sister Ashley was on her way and wanted to file a petition under section 388, subdivision (b), so that she could have standing to raise the sibling relationship exception herself. When the court expressed concern that counsel had not mentioned this earlier, counsel said Mother was "prepared to move forward as to our exceptions," and that perhaps Ashley could also testify when she arrived.
During Mother's testimony, counsel began asking questions about Ashley and her relationship with Arianna. Arianna's counsel repeatedly objected to that line of questioning on relevance grounds, arguing that Mother did not have standing to raise the sibling relationship exception for an adult sibling. The court overruled most of these objections and allowed Mother to testify about the connection between Ashley and Arianna, their day-to-day interaction during the time they lived together, their ongoing relationship after Ashley moved out, Ashley's visit with Arianna soon after removal, and Arianna's recent request for a visit with Ashley. This included overruling an objection by Arianna's counsel to a question regarding whether Mother had observed anything that led her to believe Ashley played an important role in Arianna's life, after which Mother testified that she believed Ashley played a big role in Arianna's life because of how she had "seen them grow up together, how she's been with her and [Arianna] has asked about [Ashley]."
The court did sustain objections to two questions regarding whether Mother had observed Ashley meet any of Arianna's needs, such as feeding, dressing, and other daily tasks, on the grounds that the questions were vague and ambiguous and/or irrelevant. Mother, however, continued to testify thereafter about contact between the sisters and the importance of their bond. After Mother testified that she had asked a social worker whether Arianna was having visits with Ashley, the court sustained an objection to the question, "Who did you ask?" on relevance grounds.
Arianna's counsel also repeated her argument that Mother did not have standing to raise the sibling relationship exception for her adult daughter, but the court did not address that argument when it sustained the objection.
Following Mother's testimony, Ashley testified about her relationship with Arianna, including how long they lived together, the nature of their relationship over time, the activities they participated in together, the postremoval visit she had with Arianna and her efforts to set up another visit, and the love they have for each other. The court overruled an objection to a question regarding whether the current foster parents had reached out to Ashley to set up a visit with Arianna, after finding that the question was relevant. In response to the question whether there was "any other information that you have that could describe your relationship with Arianna," Ashley testified without objection that she was Arianna's role model and that she knew that Arianna loved her.
At the continued hearing on May 9, 2016, the court noted that it had heard testimony "that included addressing the issues of the parental exception and the sibling exception . . . ." As to the sibling exception, the court found that Ashley and Arianna's relationship was "important," but did "not outweigh the benefits of the adoption for Arianna."
B. Legal Analysis
Pursuant to section 366.26, subdivision (c)(1)(B)(v), the juvenile court will not terminate parental rights if it finds, by clear and convincing evidence, that "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (See also In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.)
Here, Mother does not argue the merits of this exception to adoption. Rather, she contends the court's failure to permit relevant testimony regarding the exception, based on its finding that Mother did not have standing to raise the exception, was prejudicial error and amounted to a denial of due process. She contends the court's failure both to permit the testimony and to exercise its discretion with respect to the sibling relationship exception requires that the matter be reversed and remanded to the juvenile court for a new hearing. (See, e.g., Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125 ["A discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order"].)
The record reflects, however, that the juvenile court did permit evidence to be presented at the section 366.26 hearing—with testimony by both Mother and Ashley—related to the applicability of the sibling relationship exception to adoption. The court only minimally limited Mother's testimony about the relationship between Ashley and Arianna and, moreover, permitted Ashley—who appeared with almost no notice in the middle of the hearing—to testify extensively about their relationship. The minor limitations the court placed on Mother's testimony plainly did not compromise Mother's ability to present evidence in her attempt to establish the sibling relationship exception. Although the court ultimately found that the sibling relationship exception did not apply in the circumstances of this case, it heard relevant evidence and explicitly exercised its discretion in reaching that conclusion. (Compare In re Valerie A. (2006) 139 Cal.App.4th 1519, 1525 [where juvenile court excluded all proffered evidence regarding sibling bond exception based on overly narrow definition of term "sibling" and refused to consider issue, appellate court reversed termination of parental rights and remanded for new hearing].) Accordingly, Mother has not shown any due process violation on the part of the juvenile court.
The court did deny Ashley's last minute and vague oral request to file a section 388 petition to "assert" the sibling relationship. Mother does not attempt to challenge that ruling on appeal.
This case is thus distinguishable from In re Thomas R. (2006) 145 Cal.App.4th 726, 733-734, cited by Mother, in which the appellate court found that the parents' due process right to examine the social services agency's witnesses at a section 366.26 hearing was violated when the juvenile court denied their request for a contested hearing to enable them to cross-examine an adoptions specialist and the foster parents about the likelihood of adoption.
II. Asserted Errors Related to Visitation
Mother contends the juvenile court violated her due process rights and compromised her ability to establish the parent-child relationship exception to termination of parental rights, under section 366.26, subdivision (c)(1)(B)(i), when it delegated the right to refuse visitation to Arianna following the 12-month review hearing. She likewise argues that the Department's implementation of that order to give Arianna veto power over visitation was also improper. She further asserts that, had she received her court-ordered visitation, "she would have likely filed a section 388 petition."
A. Trial Court Background
At the conclusion of the 12-month review hearing, the court ordered monthly supervised visitation between Mother and Arianna. Mother's counsel stated her understanding that the Department and Arianna's counsel "were going to discuss the issue of visitation with Arianna to ensure that she was being given an opportunity to visit and determine the final visitation going forward. [¶] The mother has not been receiving her visits." The social worker responded, "I have spoken repeatedly with Arianna regarding visitation, and she is being offered opportunities to see her mother. She has not indicated that she's interested in participating in visitation to me. . . . [¶] Currently, the Department is recommending once a month visitation, and minor's counsel indicated that might be too much . . . ."
Arianna's counsel stated that "the parties could continue to communicate about visitation, but I think right now it's feeling like a lot of pressure for the minor, and . . . I think she would only visit if she had to, which is a hard position to be in." The CASA concurred with that assessment, adding, "I think that Arianna is in a very stable place right now, and I think that anything that would destabilize that for her at the moment would be quite a hardship."
The court then said, "That seems to be the parameters of visitation at this time. As you know, 10-year-old children become 13 [and] 14 real quick and they—things may change as she grows older." Counsel for the Department then stated that Mother could write letters to Arianna, and the court said it "certainly would support [Mother] writing to Arianna and Arianna writing to her mom anytime either one of them chose to do that."
In the subsequent section 366.26 report filed on February 26, 2016, the social worker stated that "Arianna specifically made a request through her social worker . . . that she be allowed to decline visitation with her birth mother. On 11/16/15 during the 12 Month Status Review the court allowed that Arianna would have a visit with her birth mother only if Arianna herself made this request. Since that time Arianna has not requested to have a visit, nor has she brought up mention of her birth mother to her fost-adopt parents nor a social worker." Finally, at the April 21, 2016 section 366.26 hearing, the social worker testified that on March 24, Arianna had said she wanted to see Mother "just once." A visit had not taken place by the time of the hearing.
B. Legal Analysis
Pursuant to section 366.26, subdivision (c)(1)(B)(i), the juvenile court will not terminate parental rights if it finds by clear and convincing evidence that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (See also In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Here, as with the sibling relationship exception, Mother does not argue on the merits about the applicability of the beneficial parent-child relationship exception to adoption. Instead, she contends only that her due process rights were violated when the court and the Department permitted Arianna to veto visitation in the months before parental rights were terminated, which precluded Mother from attempting to demonstrate either the applicability of this exception or the best interests component in a section 388 petition. (See § 366.26, subd. (c)(1)(B)(i); § 388, subdivision (a)(2).)
Mother does not make clear in her briefing whether the relief she anticipated requesting under section 388 would be for immediate return of Arianna to her care or additional reunification services.
"It is the juvenile court's responsibility to ensure regular parent-child visitation occurs while at the same time providing for flexibility in response to the changing needs of the child and to dynamic family circumstances. [Citations.] To sustain this balance the child's social worker may be given responsibility to manage the actual details of the visits, including the power to determine the time, place and manner in which visits should occur. [Citation.] In addition, the parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense; the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation." (In re S.H. (2003) 111 Cal.App.4th 310, 317; accord, In re Julie M. (1999) 69 Cal.App.4th 41, 50-51; see also In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237 [juvenile court may properly view child's desire not to visit a parent as a "dominant factor"].)
"After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability[.]' [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Nonetheless, even after reunification services have been terminated, visitation must continue unless the court finds it would be detrimental to the child. (§ 366.21, subd. (h); see In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504 (Hunter S.); In re David D. (1994) 28 Cal.App.4th 941, 954.)
Here, the Department argues as a preliminary matter that Mother forfeited this issue by failing to contest the court's visitation order either at the 12-month hearing or in her subsequent writ petition. (See, e.g., In re Jesse W. (2001) 93 Cal.App.4th 349, 355 ["an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order"]; see also In re Merrick V. (2004) 122 Cal.App.4th 235, 247 ["All court orders, regardless of their nature, made at a hearing in which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ"].) Mother responds in her reply brief that she did not forfeit the issue because "she had every reason to believe the [Department] would abide by the juvenile court's visitation order." Mother's challenge on appeal, however, relates to both the juvenile court's purportedly improper order and the Department's implementation of that order. In addition, at the 12-month hearing, Mother's counsel appeared to acquiesce in the challenged delegation of visitation when she stated, "I understand the Department and minor's counsel were going to discuss the issue of visitation with Arianna to ensure that she was being given an opportunity to visit and determine the final visitation going forward." Hence, Mother has forfeited the issue on appeal. (See In re Jesse W., at p. 355.)
Moreover, even assuming Mother's claim that the court and the Department improperly delegated visitation decisions to Arianna was not forfeited, Mother cannot show prejudice. That is because, even had the five two-hour supervised visits taken place, it is extremely unlikely those visits would have altered the trajectory of the case such that Mother could have satisfied her burden of demonstrating either that the benefit to Arianna of a continued relationship with her outweighed the benefits of adoption (see § 326.26, subd. (c)(1)(B)(i)) or that it would be in Arianna's best interest to order additional reunification services or return her to Mother's care. (See § 388, subd. (a)(2).)
The evidence in the record shows that visitation was, as the social worker stated in the June 2015 status review report, "difficult and sporadic for the duration of this case," primarily because of Mother's failure to participate in visitation. Between August and December 2014, Mother participated in only five supervised visits, and between June and September 2015, she participated in only one of 12 supervised visits. By the time of the February 2016 section 366.26 report, Arianna had "specifically made a request through her social worker . . . that she be allowed to decline visitation with her birth mother." Moreover, at the time of the April 21, 2016 section 366.26 hearing, Arianna had been living with her prospective adoptive family for more than a year and the evidence showed she had a close, loving, supportive relationship with her foster mother, father, and brother. She had repeatedly requested to be adopted by her foster-adopt parents, who were committed to adopting her and providing her with a permanent home.
We do not mean to minimize the importance of visitation in dependency cases, even after termination of reunification services. (See Hunter S., supra, 142 Cal.App.4th at p. 1504.) However, for purposes of determining prejudice in the particular circumstances of this case, it is simply impossible to imagine that forcing Arianna to participate in supervised monthly visits with Mother at this late stage of the proceedings could have created a bond between them that would have caused the court to find that " 'severing the natural parent-child relationship would deprive [Arianna] of a substantial, positive emotional attachment such that [she] would be greatly harmed . . . .' " (In re C.F. (2011) 193 Cal.App.4th 549, 555; see § 326.26, subd. (c)(1)(B)(i).) Likewise, even in the event Mother could have shown changed circumstances under section 388, subdivision (a)(1), it is inconceivable that the court would have found that foregoing adoption and again attempting to reunify with Mother would be in Arianna's best interest, had Mother been offered the five supervised visits at issue. (See § 388, subd. (a)(2); see also In re Stephanie M. (1994) 7 Cal.4th 295, 317 [juvenile court must focus on the child's interests rather than the parent's interests once reunification services have been terminated].)
This case is thus distinguishable from Hunter S., supra, 142 Cal.App.4th at page 1506, in which the juvenile court had permitted the minor to refuse visitation with his mother over several years, despite the fact that a valid visitation order was in place and the mother had continually objected to the lack of visitation. The appellate court held that the juvenile court had abused its discretion when it denied mother's section 388 petition, "[t]he primary thrust of [which] was that, by virtue of three years of error and judicial inattention, she had been deprived of the opportunity to revive her relationship with her son, even though, during that entire period, a valid visitation order remained in effect and she had repeatedly raised the issue with the court." (Hunter S., at p. 1507.) Here, on the other hand, Mother never challenged the visitation order or its implementation in the juvenile court. Moreover, the Department encouraged and facilitated visitation for the first 15 months of the dependency, during which it was Mother, not Arianna, who failed to participate in visits on many occasions. Only in the final months before the section 366.26 hearing was Arianna permitted to refuse visits with Mother.
We do note that Arianna requested a one-time visit with Mother in March 2016, which, inexplicably, had not taken place by the time of the April section 366.26 hearing. --------
In light of all of these circumstances, we conclude any error in delegating visitation decisions to Arianna in the months before the section 366.26 hearing, even assuming it rose to the level of a due process violation, was harmless beyond a reasonable doubt. (See In re Thomas R., supra, 145 Cal.App.4th at p. 734.)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.