Opinion
F076065
03-21-2018
In re RICHARD H., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. CHRISTOPHER H., Defendant and Appellant.
Mara L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 516754)
OPINION
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Mara L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
In July 2013, Christopher H. (father) contacted the Stanislaus County Community Services Agency (agency) pleading for help with the care of his three-year-old son, Richard H., because the parents suffered from drug and alcohol addiction and sought treatment. Mother H.S. died in September 2013. Father received family maintenance services from the agency for nearly two years but continued using drugs, alcohol, and maintenance methadone. A supplemental petition was filed on July 13, 2015, alleging father could no longer care for Richard, then five years old, because of neglect due to substance abuse. The allegations were sustained in August 17, 2015, and father was granted reunification services.
At the 12-month review hearing on August 17, 2016, father's condition had not improved and the court terminated father's reunification services and set the case for a hearing pursuant to Welfare and Institutions Code section 366.26. (Unspecified code references are to the Welf. & Inst. Code.) The recommended long-term plan was a guardianship. A permanency planning hearing was conducted on December 13, 2016. The juvenile court adopted a permanent plan of long-term guardianship and ordered visitation for father twice a month.
At the section 366.3 review hearing on June 29, 2017, the juvenile court granted the agency's request to reduce father's visitations with Richard to once a month to facilitate the bond between Richard and the guardian, with the goal of pursuing adoption as Richard's permanent plan. On appeal, father contends the juvenile court abused its discretion in reducing his visitation with Richard to once a month. We disagree and affirm the juvenile court's visitation order.
FACTS AND PROCEEDINGS
Initial Proceedings
By March 2015, father had been on court-ordered family maintenance services for over 500 days. Father left Richard in the care of a neighbor. Although father had repeated failures in drug treatment programs, the agency gave him one more chance, and father was admitted to the Nirvana Men's Residential Drug Treatment program on March 26, 2015. Father completed the program on June 22, 2015, but failed to show for the outpatient program a week later. Father admitted relapsing and drinking alcohol on July 4, 2015. Richard was placed into protective custody five days later. On June 13, 2016, father was placed on hold in an anger management program due to excessive absences. Father tested positive for methamphetamine on July 15, 2016.
Father underwent a psychological evaluation by Dr. Philip Trompetter in July 2016. Dr. Trompetter diagnosed father with an antisocial personality disorder with ADHD, a low frustration tolerance, and impulsivity. Dr. Trompetter was concerned that even if father demonstrated symptom improvement with ADHD and treated his personality disorder, he would still have a difficult time reducing the risk he poses to create an unsafe environment for Richard. Dr. Trompetter assumed father would remain in remission by continued involvement in relapse prevention. Father was discharged from an anger management program in July 2016 for his failure to attend three classes.
12-Month Review Hearing
In its status review report for the 12-month review hearing, the agency initially noted the permanent plan for Richard was adoption but changed it to a long-term guardianship. The social worker reported father had been continuously dishonest with her as well as with service providers. Father had provided many excuses for why he was unable to attend and participate in services. Father also had failed to engage in services. Father failed to make progress in his case plan services, and although he attended classes, father failed to display any change in his behavior indicating he could act as a safe and appropriate parent to his young son. The social worker found father had made only limited progress in his case plan services and objectives. The social worker did not believe father could ensure a safe home for Richard. The agency recommended father's reunification services be terminated.
In a report, the court appointed special advocate (CASA) explained CASA held Richard's education rights. Richard was subject to a special education local plan area (SELPA) assessment and an individualized education plan (IEP) after being initially assessed as emotionally disturbed. Although Richard also had vision problems, these were resolved after eye surgery in January 2016. At the end of the 2015-2016 academic year, Richard was showing gradual improvement in speech and behavior. In April 2016, Richard was diagnosed with ADHD and was prescribed medication that significantly improved his behavior. CASA believed Richard should remain in his current foster care placement. CASA described Richard as being very personable and outgoing.
At the 12-month hearing on August 17, 2016, the social worker indicated the proposed plan was for guardianship. The juvenile court noted the case plan called for father to have two visits per month with Richard. Father's counsel raised no factual objections to the report or recommendation of the agency except to the termination of reunification services. The juvenile court found minimal compliance with the case plan by father, clear and convincing evidence reasonable services were offered to father, and the court terminated father's reunification services. The court further found that, even if reunification services were continued another six months, it was not a substantial likelihood Richard would be able to be returned to father's care because father's progress in the case plan was insufficient.
Permanency Planning Hearing
The agency's report for the section 366.26 hearing recommended a permanent plan of guardianship, with Richard being placed with his caregiver. Richard had a new IEP in August 2016. He was doing well in school. His teacher was tailoring Richard's homework to meet his needs. Although Richard had some speech delays, he was making progress with speech services. Richard was described as a sweet and talkative child. Richard's caregiver has been a foster parent for 20 years. The caregiver was looking forward to "growing her family with Richard" and providing him with a long-term stable home. Richard had been placed with his caregiver since February 2016. The caregiver had a good understanding of the legal responsibilities of being Richard's legal guardian. Despite Richard's challenges, the caregiver said Richard had "stolen her heart" and she wanted the best for him.
After some early adjustments with his medication, Richard was overcoming ADHD symptoms and was physically doing well. In August 2016, the social worker told Richard he would not be back in his father's care anytime soon. Richard became teary-eyed but seemed to understand. During a visit with Richard in his current placement conducted in late October 2016, the social worker found Richard felt safe in his current placement. Richard told the social worker he did not get into trouble much anymore. When asked how he felt about living with the caregiver for a long, long time, Richard said he felt a little sad because he missed his father. The social worker reminded Richard he would still have visits with his father. The caregiver told the social worker Richard was doing very well and she rarely had to correct him. The caregiver was looking forward to becoming Richard's guardian.
During this reporting period, father came to a visitation smelling of alcohol on one occasion and had inappropriate adult conversations with Richard about how the dependency case had been handled. Father usually interacted with Richard with a tablet or other electronic device. The agency's report noted inconsistently that Richard was not likely to be adopted and that he was likely to be adopted, but adoption would be detrimental because father had maintained regular visitation and Richard would benefit from continuing the relationship. The agency recommended guardianship as Richard's long-term plan. The agency further recommended supervised visitations for father twice a month.
At the section 366.26 hearing on December 13, 2016, the social worker reported Richard had an IEP the day before and would be mainstreamed back into a classroom after Christmas. The court decided Richard's educational rights would be held jointly by CASA and the guardian. Father's counsel stated father did not oppose the guardianship. Father's main concern was to keep visitation. CASA reported Richard was making substantial, positive progress academically and in his behavior. The court ordered a permanent plan of guardianship with dependency. The juvenile court found guardianship as the preferred plan because father had maintained regular visitation with his son and Richard would benefit from continuing the relationship.
Postpermanency/Review Hearing
The section 366.3 report indicated Richard's mainstreaming in school was being taken slowly with incrementally more time being spent in the mainstream classroom. Richard's IEP in May 2017 determined he would repeat the first grade and would be mainstreamed for half a day. Richard was found to no longer need mental health services.
A review of visits showed father attended regularly, but was often late five to ten minutes and usually left five minutes early so he could catch the bus. The social worker noted that throughout the reporting period, father brought a tablet or other electronic device to the visits and used it as the primary activity during the visit. Father had little interaction with Richard apart from watching a movie or other show on the tablet. Richard did not display sadness at the end of visits.
When discussing his placement with the social worker, Richard said he liked his placement and enjoyed his visits with his father. The guardian explained Richard views his visits with his father as a playdate and interacts with his father in the role of playmate rather than in a parent-child relationship. The caregiver told the social worker she believes father's visits are hindering Richard's ability to bond because Richard still thinks he is going home to his father. The social worker opined the father's visits were not beneficial at this time because there was little interaction between father and son. The social worker recommended a reduction in visits from twice a month to once a month. She also recommended a finding by the juvenile court that visits were not detrimental.
Visitation reports noted on December 21, 2016, there was a strong odor of marijuana coming from the room during father's visit. Father turned off the lights and watched a movie for the majority of the visit. On January 18, 2017, father watched videos with Richard the entire time. Father left 10 minutes early to catch the bus. On April 19, 2017, father was on time and clean. In addition to watching a movie, Richard and father put a puzzle together. On May 3, 2017, father arrived five minutes late, was not clean, and it was unknown if he was under the influence. Richard appeared bored, lying on the floor and looking up at father.
At the review hearing on June 6, 2017, father appeared and opposed the agency's proposed reduction in visits. The juvenile court noted normally when reunification services have been terminated, visits are only once per month. The court temporarily reduced the visitation to once per month, without prejudice, and set a contested hearing on the issue. At the contested hearing on June 22, 2017, the agency made an offer of proof the reduction in visits was being requested because the caretaker and guardian thought Richard saw his father as a playmate. The guardian was further concerned the frequency of the visits was impeding Richard's ability to bond with her.
Father's counsel called social worker Katherine McKain to testify. Although McKain had not directly observed the visits, she had a visit with Richard and asked him about his recent visit with father. Richard replied: "'My dad brought cupcakes. I ate two, he ate a lot. We were really full.'" Richard then went back to playing with his toys. McKain explained Richard was in guardianship with dependency but the long-term goal would be to dismiss the dependency and move toward adoption. McKain explained Richard sees his father every two weeks and knows he's going to have fun, watch movies, and eat cupcakes. Also, Richard did not understand his permanent home is with his guardian, which was making it more difficult to move toward adoption. The agency sought to move to a plan of adoption within six months because the caregiver was very committed and bonded to Richard. Richard does not understand he's in a permanent home because he sees his father so often.
According to McKain, Richard's behavior had improved a lot in the past six months. The agency recommended guardianship with dependency at the December 2016 hearing because Richard needed extra support and services to attain his current stability. These services included counseling and a CASA worker. Richard's behaviors in school had improved. McKain noted Richard had not asked for more visits with his father. The last time McKain asked about his visit with his father, Richard replied, "'It was good. We watched Power Rangers.'" Richard added they ate cupcakes.
Father testified he never missed his visits with Richard. Father believed his visits were important to him and to Richard. Father said he watched videos because they have to visit indoors and not outside. Father said he noticed a big difference in Richard's behavior since he was placed on medication. Richard could not watch videos before his eye surgery. Richard greets father by running to him and jumping in his arms. According to father, on a typical visit they sometimes play with toys, do a puzzle, and then watch videos.
Father denied telling Richard he is coming home. According to father, Richard knows he's not coming home with father. Father only reassures Richard they will see each other again. Father said he disagreed with the agency's recommendation to reduce father's visits to once a month. Father did not believe he was hindering Richard's ability to bond with his guardian. Father said he did not oppose guardianship because he was assured he would still be able to see Richard. Father explained Richard was his son and as long as father could see him, he was okay with that. Father said he did not want to be selfish and understood the guardian had money. Father was aware the guardian could provide things father could not. Father said that if Richard is taken from him, Richard will shut down.
In closing argument, the agency argued if there was a chance Richard could have a more permanent placement, a more permanent plan, then this option should be pursued. Counsel argued if the caregiver and guardian who knows Richard better than most people believed reduced visitation with father could benefit Richard, then it should be tried and it would be in Richard's best interests to reduce father's visits to once a month. The agency explained it did not seek termination of father's visits, but to have an order for visits comporting with Richard's needs.
Richard's attorney argued she had seen "a turn around" in Richard since placement with his guardian. Richard had been moved around a lot and still held out hope of placement with father but was currently in a limbo state. Counsel argued it was in Richard's best interests to have reduced visitation with father.
The juvenile court found Richard's placement with the guardian was appropriate and the current plan of guardianship with dependency continued to be the appropriate plan for now. The court noted no one said father's visits were bad and Richard enjoyed visiting his father. The court observed at this stage of the proceedings the court would normally be moving toward adoption and termination of parental rights. Although there have been issues with Richard's situation preventing adoption, adoption was the best permanent plan for a child.
The court observed that although twice monthly visits were not detrimental, if twice monthly visits were confusing Richard, they should be reduced to once per month to determine if this would limit Richard's confusion. The court told father it had given him years to reunify with Richard but father failed to do what was necessary to accomplish that goal. The court found it would be in Richard's best interests to reduce visits to once per month for the next six-month period and revisit the issue at the next review hearing.
DISCUSSION
I. Juvenile Court Did Not Abuse Its Discretion in Reducing Visitation
Father contends the juvenile court had to find detriment in his visitation before modifying the postpermanency visitation order of two visits per month. He also argues there was no evidence supporting the guardian's claim reduced visitation with father would strengthen Richard's bond with her. Father asserts the juvenile court abused its discretion in considering evidence from the guardian and improperly delegated the issue of visitation to her. Father further asserts that, because there was no current request by the agency or the guardian to change Richard's permanent plan to adoption, the juvenile court abused its discretion in changing father's visitation. Father finally contends the juvenile court's order impairs his ability under section 366.26, subdivision (c)(1)(B)(i) to continue regular visitation so he can maintain the beneficial parent-child exception to termination of parental rights to effectuate adoption. We reject these arguments.
Standard of Review in Postpermanency Proceedings
The necessity for visitation during the postreunification period is governed by different statutes than when the parents are still receiving reunification services. During the reunification period, visitation generally must be as frequent as possible, consistent with the dependent child's well-being. (§ 362.1, subd. (a)(1)(A).) The focus after a permanency planning hearing is on the permanency and stability of the child. Once a child is placed into a legal guardianship, the juvenile court must order visitation with the child's parents unless it finds by a preponderance of the evidence that visitation would be detrimental to the physical or emotional well-being of the child. (§ 366.26, subd. (c)(4)(C); In re D.B. (2013) 217 Cal.App.4th 1080, 1090; In re M.R. (2005) 132 Cal.App.4th 269, 273-274; Cal. Rules of Court, rule 5.735(c)(2).) A reviewing court will not disturb a juvenile court's ruling in a dependency proceeding unless the court has exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re K.D. (2004) 124 Cal.App.4th 1013, 1018.)
In cases reaching the permanency planning phase, the juvenile court must "conduct a hearing to select and implement an appropriate permanent plan from among those specified—including, in order of mandatory preference, adoption (after termination of parental rights), legal guardianship, and long-term foster care." (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 884-885) If the court orders long-term foster care as the permanent plan, a status review hearing must be held every six months to determine whether the plan continues to be appropriate. (Id. at p. 885; § 366.3, subds. (d), (e).) The review hearing fulfills the important purpose of dependency proceedings—to provide children with stable, permanent homes. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1145.) At this stage, the focus has shifted away from efforts to maintain biological ties. (Id. at p. 1148; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "[A]fter a child has spent a substantial period in foster care and attempts at reunification have proved fruitless, the child's interest in stability outweighs the parent's interest in asserting the right to the custody and companionship of the child." (In re Jasmon O. (1994) 8 Cal.4th 398, 419-420.)
At a postpermanency planning review hearing, the court "may modify visitation orders ... as the child's needs require." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002 [sibling visitation]; see, e.g., In re Kelly D. (2000) 82 Cal.App.4th 433, 438 [visitation is properly addressed at the hearing].) While section 366.3 does not specify a legal standard to guide the juvenile court in undertaking its review, as a general proposition, "the Legislature has mandated that the juvenile courts consider 'the best interests of the minors in all deliberations.'" (In re J.C. (2002) 104 Cal.App.4th 984, 992-993, citing § 202, subd. (d) and In re Sade C. (1996) 13 Cal.4th 952, 993, fn. 20.) "The best interests of the child is certainly a factor the court can look to in exercising its discretion to permit or deny visitation." (In re J.N. (2006) 138 Cal.App.4th 450, 459 [affirming juvenile court's discretionary denial of visitation under § 361.5, subd. (f), following bypass of reunification services].) We apply the bests-interests-of-the-child standard to evaluate father's contentions.
Evidentiary Assertions
Father argues that before the juvenile court could reduce his visitation, it had to find his visits with Richard were detrimental. Father further argues there was no evidence reduced visits with him would improve the guardian's bond with Richard. These arguments fail to take into consideration Richard's best interests.
The record does not support father's contention the agency made a promise of indefinite visitation or of a specific number of monthly visits to father during the section 366.26 proceedings. Richard suffered from a vision problem requiring corrective surgery and from ADHD, necessitating diagnosis and medication. Prior to receiving the medication, Richard was emotionally unstable and could not attend regular classes in elementary school. Richard had lived with family members and in foster care before his guardian assumed custody. Although father failed to reunify with Richard due to father's inability to finish or implement the services he received, to father's credit he maintained regular visitation with Richard.
While the instability in Richard's life was caused by father's chronic substance abuse as well as Richard's physical and emotional problems father could not address, father remained a constant for Richard. At the time of the section 366.26 hearing, the guardian had less than a year to bond with Richard, who was by then in elementary school. It was rational for the juvenile court to keep Richard in dependency with a guardianship, including visitation with father, as the permanent plan. By leaving Richard as a dependent of the court, however, the juvenile court could not at that time choose a permanent plan of adoption. Furthermore, it was clear at the section 366.26 hearing that father was not going to reunify with Richard.
The guardian had become very attached to Richard and apparently sought to adopt him despite the many difficulties Richard faced throughout his dependency. The guardian described Richard's visits with his father as playdates. The objective reports of social workers observing the visits corroborate the guardian's description of father's visits. Father brought sweets and electronic devices; they watched movies and played games together. The quality of father's interaction with Richard did not appear to go beyond this playful interaction. Throughout the proceedings, Richard indicated to social workers his belief he would reunite with father. At the review hearing, father acknowledged he could not provide for Richard and tacitly conceded the guardian was the person acting as Richard's parent.
The juvenile court here did not have to find detriment to change the terms of father's visitation with Richard, nor did the agency have to establish that reducing father's visitation with Richard to once a month would enhance Richard's bond with his guardian. The court allowed father visitation, although it limited that visitation to once a month. In making its order, the juvenile court did not violate section 366.26, subdivision (c)(4)(C) because the court did not end all visitation with father, it merely reduced his visitation. The juvenile court is accorded broad discretion in fashioning visitation orders. Absent a showing of a clear abuse of discretion, we will not interfere with the exercise of that discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) Once a juvenile court terminates reunification services, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.)
Under the circumstances presented here, the juvenile court was faced with a permanent status quo of leaving Richard as a dependent with a guardian, or it could determine whether Richard's guardian could develop a deeper bond with him, potentially leading to adoption. In making a decision concerning father's visitation, there was no legal requirement for the juvenile court to find Richard's visits with father were detrimental, nor did the agency have to prove reduced visitation would improve the guardian's bond with Richard. At best, such evidence would have been highly speculative. The juvenile court had to decide what were Richard's best interests in making its visitation order. Choosing a reduction in father's visitation under these circumstances was not an abuse of the court's discretion.
II. Juvenile Court Did Not Delegate Its Authority to Order Visitation
Where a juvenile court orders visitation, it shall specify the frequency and duration of visits. The time, place, and manner of visitation may be left to the legal guardians, but they cannot have discretion to decide whether visitation actually happens. (In re Grace C. (2010) 190 Cal.App.4th 1470, 1478.) The juvenile court cannot delegate the decision concerning whether visitation will occur to any third party, including the child, the social services agency, or the guardian. (In re Korbin Z. (2016) 3 Cal.App.5th 511, 516-517 [discretion delegated to child]; In re Ethan J. (2015) 236 Cal.App.4th 654, 661-662 [same]; In re Kyle E. (2010) 185 Cal.App.4th 1130, 1136 [improper delegation to social services agency]; In re T.H. (2010) 190 Cal.App.4th 1119, 1123 [improper delegation to custodial parent]; In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 [improper delegation to legal guardian]; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1477 [discretion delegated to therapist].)
The juvenile court did not delegate its discretion to Richard's guardian to determine whether father could visit. Although the guardian noted her concern that twice monthly visitation with father was impairing her ability to bond with Richard, her observation was evidence weighed by the juvenile court, and the guardian did not dictate the court's visitation order. The guardian did not dictate the time, place, or manner of visitation. It was the juvenile court that exercised its discretion to reduce father's visitation. The court did not delegate the right of visitation to any third party including the guardian, the agency, or Richard
III. Visitation Order Not Dependent on Richard's Permanency Status
Father argues the agency did not yet seek to change the permanent plan to adoption. He contends the agency should have filed a section 388 petition asserting changed circumstances in order to change his visitation. Father further contends there was "no legal reason" to change the permanent plan, and any such move would have violated the specific promise of the agency to father in the section 366.26 proceedings that father would have visitation with Richard. Father maintains he did not contest the section 366.26 hearings because he was receiving visitation while Richard remained a dependent under guardianship. Father argues the reduction in visitation was unlawful because it interfered with father having a meaningful parent-child relationship should there be a future section 366.26 hearing to terminate father's parental rights with adoption as the permanent plan.
In effect, father contends there had already been a permanency planning hearing and the agency was not seeking a new permanent plan, so the court was therefore legally bound to its earlier visitation order. At its crux, father's argument is to keep the current status quo permanently, with Richard remaining a dependent of the court in a guardianship until he is 18 years old. Even after guardianship is chosen as a permanent plan, however, status review hearings are held every six months to determine if that plan continues to be appropriate. (§ 366.3, subds. (d), (e); San Diego County Dept. of Social Services v. Superior Court, supra, 13 Cal.4th at p. 885.) Equally important, and germane here, is the underlying purpose of postpermanency review hearings—to provide children with stable, permanent homes. (Maricela C. v. Superior Court, supra, 66 Cal.App.4th at p. 1145.)
The guardian was attached to Richard. Adoption remained a possibility. Although father's visits with Richard were not detrimental, the quality of the visits was not emotionally deep. Father was more in the role of playmate than of parent. Under these circumstances, the juvenile court was faced with maintaining a permanent status quo of Richard as a dependent with a guardian, or assisting Richard's guardian in developing a deeper bond with him and potentially leading to adoption. The agency did not have to seek a change in Richard's permanency status to seek a change in father's visitation. To impose such a requirement on social services agencies would undermine the purpose of postpermanency review hearings: to provide children with permanent and stable homes.
As we have already noted, there was no evidence in the record father would ever be able to reunify with Richard and provide him with a stable, permanent home. The evidence showed that after several failed attempts to reunify with Richard, father would likely never achieve this goal. Richard's counsel at the status review hearing captured the dilemma faced by the juvenile court—doing nothing would leave Richard in a legal limbo without an adequate permanent plan. It bears reiteration that at all stages of a dependency case the juvenile court must consider the best interests of the child. (In re J.C., supra, 104 Cal.App.4th at pp. 992-993, citing § 202, subd. (d) and In re Sade C., supra, 13 Cal.4th at p. 993, fn. 20.) Reducing father's visitation without the agency seeking an immediate change in Richard's permanency status was not an abuse of the juvenile court's discretion and it was not legally mandated.
IV. Father's Statutory Rights Do Not Supersede the Child's Best Interests
Father's final argument is that without visitation, he will never be able to prevent termination of his parental rights or a future adoption. For this proposition, father relies on section 366.26, subdivision (c)(1)(B)(i) and In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505. Hunter S. is factually inapposite to this case, however, because the parent was effectively barred from visitation for two years due to the court's failure to enforce its visitation order. Here, father not only had regular visitation with Richard, he still has visitation with Richard. Nothing in the juvenile court's order prevents father from improving the quality of his visits with Richard or showing a change of circumstances and filing a petition to the juvenile court to change its order pursuant to section 388.
At this stage of the proceedings, the focus shifts away from efforts to maintain biological ties. (Maricela C. v. Superior Court, supra, 66 Cal.App.4th at p. 1148; In re Marilyn H., supra, 5 Cal.4th at p. 309.) Once a child has spent a substantial period in foster care and reunification has proven fruitless, the child's interest in stability outweighs the parent's interest in custody and companionship of the child. (In re Jasmon O., supra, 8 Cal.4th at pp. 419-420.) A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the biological parent has maintained a relationship that may benefit the child to some degree but does not meet the child's need for a parent. When possible, adoption is the preferred plan by the Legislature if it is likely the child will be adopted. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450.) Although the parent-child benefit exception to adoption in section 366.26, subdivision (c)(1)(B)(i) provides a mechanism in place for continued visitation where a child cannot be adopted, the juvenile court's order did not deprive father of the means to keep his relationship with Richard in place as these proceedings move forward.
Conclusion
The juvenile court did not have to find father's visits with Richard were detrimental to change its visitation order. The agency did not have to provide speculative evidence concerning the effect, if any, of reduced visitation on the bond between Richard and his guardian. The juvenile court properly relied on evidence from the guardian and social workers concerning the nature and quality of father's visits with Richard. The juvenile court did not improperly delegate its authority to control visitation to the guardian or any other third party. Father still has the right to visit Richard even if his visits have been reduced. Section 366.26, subdivision (c)(1)(B)(i) and the plan adopted at the section 366.26 hearing did not create an enduring right for father to visit his son twice a month. The juvenile court had the inherent authority to act in Richard's best interests to change the visitation order and did not abuse its discretion in doing so.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
SMITH, J.