Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County No. DP018080, Jane L. Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Deborah A. Kwast, Public Defender, Frank Ospino, Assistant Public Defender, Geraldine Wong and Dennis M. Nolan, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Yana Kennedy, for Real Party in Interest Bernardo F.
OPINION
ARONSON, ACTING P.J.
Bernardo M. (father) petitions for extraordinary writ relief challenging the juvenile court’s order setting a selection and implementation hearing (Welf. & Inst. Code, § 366.26; all further statutory references are to this code unless otherwise noted) for his son Bernardo F. Father, deported to Mexico before Bernardo’s birth, contends there is insufficient evidence to support the juvenile court’s finding reasonable services were provided. Specifically, he argues the government should have paid for travel expenses to visit his son. For the reasons provided below, we deny father’s writ petition and his request for a stay of the section 366.26 hearing, currently scheduled for June 9, 2011.
I
FACTUAL AND PROCEDURAL BACKGROUND
On January 27, 2009, the Orange County Social Services Agency (SSA) took Bernardo, born in May 2003, and his younger half-brother, Jonathan, into protective custody after the children found their mother, Maria, dead of apparent accidental alcohol poisoning. The juvenile dependency petition filed January 29, listed Bernardo M. as an alleged father with an address in Mexico. The petition alleged father, deported in 2003, had provided no support to Bernardo.
The juvenile court had previously terminated mother’s parental rights to six other children in 1998 and 2002.
According to SSA’s detention report, a social worker interviewed father by telephone on January 27. Father claimed he was Bernardo’s biological father, but he had no relationship with him because the authorities had deported him before Bernardo’s birth. Because he could not enter the United States, father asked the social worker to place Bernardo with him in Mexico, or with his sister, Roselia D. The social worker contacted Roselia, who agreed to meet the social worker and a therapist at Orangewood Children’s Home to notify the children their mother had died.
Bernardo’s birth certificate did not list father’s name, but did provide father’s date and state of birth. Father reported he had lived with Maria for about 18 months before he was deported.
At the January 30 detention hearing, the juvenile court appointed counsel for father. The court authorized SSA to release the children to a relative or suitable adult pending the jurisdiction hearing. SSA placed the children with Roselia a few days later.
Police reports contained allegations of domestic violence by father against Maria occurring in 2002. The incident resulted in father pleading guilty to misdemeanor willful infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and cohabitant battery. The court placed father on probation, imposed jail time and ordered him not to contact Maria.
After his deportation to Mexico in 2003, father married, and resided near Mexico City with his wife and their three children, ranging in age from five years old to 10 months old. He worked as a private security guard.
In late February, the social worker spoke with a representative of the Mexican Consulate and explained the programs father should attend, including parenting classes, counseling, a batterer’s program, and alcohol testing. SSA also requested a socioeconomic study by the Mexican Desarrollo Integral de la Familia (DIF) to determine the propriety of placing Bernardo with father or with Bernardo’s adult maternal half sibling, Jose C. The social worker told father to contact the Mexican Secretary of Exterior Relations to obtain information about the case and services. The social worker also provided father with contact information for his court-appointed attorney.
In early March, father reported DIF’s Hilda Lizardi had interviewed his family. Lizardi promised to call him about beginning his programs. He had also received a letter from “Interior Relations” advising him to enroll in a domestic violence class, therapy, parenting and alcohol classes.
At the March jurisdiction and disposition hearing, father did not attend the hearing, but was available by telephone. He submitted the matter based on SSA’s reports. The amended petition alleged Bernardo came within the jurisdiction of the juvenile court because father had failed to provide for his son’s support, and had failed to prove he had completed anger management and substance abuse treatment programs. (§ 300, subds. (b), (g).) The juvenile court found father to be Bernardo’s presumed father, sustained SSA’s petition as amended, found it would be detrimental to vest custody with father, and ordered reunification services. The court continued the matter to August 31 for a six-month review hearing. The court authorized father’s lawyer to appear on his behalf if father was unable to appear because of distance, the expense of travel, or an inability to enter the United States.
County counsel informed the juvenile court the services offered to father in Mexico were consistent with SSA’s case plan. The court ordered, at father’s request, visitation through telephone calls, although county counsel would not agree to have SSA pay for the calls. The initial case plan provided for supervised telephone calls three times a week, but did not mention the funding issue. The court approved the case plan, including the visitation/calling component.
SSA declared in its initial report for the six-month review hearing an intention to place Bernardo in Mexico with maternal half-sibling Jose C. Jose C., who had handled Maria’s funeral arrangements, and his wife had consistently expressed interest in assuming permanent custody of both boys, and in adopting Bernardo if reunification with father failed. Once father completed his reunification plan and DIF deemed it appropriate, Bernardo would be placed with his father. Jonathan, however, would remain with the maternal family. DIF had favorably evaluated both Jose’s and father’s home for placement. The social worker began gathering the necessary paperwork, such as birth certificates and passports, to allow the boys, born in the United States, to live in Mexico.
The social worker continued to evaluate whether placement with father in Mexico was in the boys’ best interest, however. The boys had been with their paternal aunt for over six months, and had adjusted well in her home. They were well cared for, had developed a strong relationship with her, and she offered them a permanent home. The children’s therapist believed the children would be better off remaining in their current placement. They appeared happy and well adjusted, and he warned any change could be emotionally traumatic. With the shock of their mother’s recent death, it would be difficult to measure the overall emotional impact on the boys if they were suddenly removed from their aunt’s home and relocated to a country they had never visited and live with relatives with whom they had no prior relationship. Another concern was the potential emotional harm caused by separating the siblings if Bernardo reunified with father. Father declined to take Jonathan into his home, and the boys were very close.
The social worker had the Mexican relatives send pictures and letters, and telephone Bernardo. He asked the family to obtain visas to visit the children in the United States, but little progress was made due to the family’s limited resources. Father had telephone contact with the children once a week. Jose C. had spoken to them just once as of August 18.
Father had begun participating in case plan services, including drug testing, individual therapy, and attendance at a 12-step program. Given his criminal history, the social worker believed face-to-face monitoring and DIF supervision of father and Bernardo would be necessary to assure Bernardo was not at risk in his father’s care.
As noted, father received authorization for three telephone calls per week, but averaged only one call. Father expressed difficulty in making long distance calls because of the cost. The social worker asked the caretaker to encourage father to call, and for her to initiate phone calls whenever possible.
Bernardo stated he would like to live in Mexico with this father because his father was “going to buy him clothes and toys.” He reported liking Mexico even though he had never been there. Jonathan stated he would like to remain with the aunt, where he felt safe and comfortable. The therapist believed the children did not understand the overall impact of their expressed preferences.
An addendum report reflected father had “remained open, motivated, and cooperative[.]” He continued to participate in therapy, had completed drug testing, and regularly attended Alcoholics Anonymous (AA) meetings. He had maintained weekly contact with Bernardo, with calls lasting six to eight minutes. The social worker informed father of concerns in placing Bernardo in Mexico. Father responded he understood, and conceded it was a difficult decision. He promised to continue with therapy and other services. If the court decided not to place Bernardo with him, father requested that Bernardo remain with the paternal aunt so he could maintain contact with Bernardo and possibly visit his son in the future.
The therapist voiced his “deep concerns about sending the children to Mexico, ” which he believed would “cause great emotional and social disruption.” He cited the trauma of losing their mother, the boys’ favorable adjustment in their current environment, and the detriment in going to an unfamiliar country they had never visited to live with people they did not know, coupled with the prospect of separation from each other.
In late September, the parties conferred concerning the possibility of Bernardo visiting father in Mexico City, but counsel for minor objected. The juvenile court directed SSA to examine the feasibility of arranging a visit in San Ysidro.
In late October, the social worker reported father continued to participate in his programs, and he and Bernardo spoke on the telephone every week for about 15 to 25 minutes about everyday topics. Father felt the calls went well and he hoped Bernardo could be placed in his care in the near future. Father objected to a visit in San Ysidro because of the distance and his lack of resources. He was also unfamiliar with the area, and feared the assaults and robberies occurring in the border areas. The Mexican Consulate reported it did not have funds to support father’s travel, but it would check if other agencies could provide the funds.
At the six-month review hearing on October 22, father stipulated, and the juvenile court found, continued court supervision was necessary, return of Bernardo to father would create a substantial risk of detriment, and reasonable services had been provided or offered. The court directed SSA to continue to work with DIF to facilitate visitation in San Ysidro. The court directed SSA to notify the court and counsel if it intended to place Bernardo in Mexico.
In February 2010, the social worker recommended terminating reunification services and scheduling a section 366.26 hearing. SSA was completing an adoption home study for the paternal aunt, who was in the process of adopting Jonathan. The aunt had previously expressed a willingness to act as legal guardian or to adopt both boys with financial assistance. The social worker noted Bernardo initially had been detached and emotionally distraught when placed with his aunt, and had been unable to concentrate and thrive in school. Since living with his aunt, however, he had made substantial academic progress.
Father continued to participate in case plan activities and weekly telephone calls, but had not obtained the travel funds necessary to meet his son. The social worker recognized the economic barriers facing father, but noted “in person contact [was] necessary to foster a relationship between the child and father[, ]” and to assess father’s “parenting capacity, ability to establish rapport, and the child’s comfort level[.]” “Without having some concrete information” it would “be careless and possibly detrimental to the child’s safety and well-being to release child to his father.”
The therapist again emphasized it was in Bernardo’s best interest to remain in his current placement with his brother and that a move would “create additional psychological harm.” The therapist believed “the best option is for Bernardo to remain here and perhaps have visits with [father]. Since he never lived with... father, there is not an attachment bond there at this time.”
Bernardo declared he would like to stay with his aunt and brother. He did not know where Mexico was, and did not want to live there.
The Mexican Consulate provided father with funds to travel to San Ysidro for a single two-hour visit on March 8, 2010. At the beginning of the visit, Bernardo appeared uncomfortable and unsure, and clung to the social worker. Father gave Bernardo toys, and Bernardo appeared happy and played with them for 20 minutes. Father took pictures and spoke to the social worker, but had to be redirected to concentrate on his son. Father tried to engage Bernardo, who preferred speaking in English, in conversation. Father, who remained passive throughout the visit, appeared uncomfortable and hesitant. He rarely initiated conversation, and maintained a physical distance from Bernardo. The social worker facilitated conversation about family, father’s work and school. Father showed Bernardo pictures of the family in Mexico. Bernardo initially showed interest, but returned to playing with the toys while father stood by, watching his son and taking pictures. After the visit, Bernardo stated he was happy to meet his father and he wanted to live with him in Mexico because “‘my daddy buys me toys.’”
A few weeks after the visit, SSA explained to father that it would continue to recommend terminating reunification services because father and Bernardo did not have a relationship. SSA instead recommended the paternal aunt adopt Bernardo and maintain his relationship with Jonathan. The aunt expressed a willingness and desire to facilitate continued contact with father, who agreed to adoption by his sister if Bernardo could not be released to him.
On March 30, 2010, county counsel and father stipulated over Bernardo’s objection to schedule the matter for an 18-month review hearing. Despite some misgivings, the juvenile court scheduled an 18-month review hearing. It found continued supervision was necessary, return of Bernardo to father would create a substantial risk of detriment, reasonable services had been provided or offered, and there existed a substantial probability Bernardo would be returned to father’s physical custody within six months because father had consistently and regularly contacted and visited Bernardo and had made significant progress in resolving the problems that led to Bernardo’s removal. The court amended the visitation plan to require SSA to facilitate monthly visits at the San Ysidro port of entry if father could make his own arrangements for travel.
In July 2010, SSA again recommended termination of reunification services. The aunt, whose adoptive home study for Jonathan was in progress, preferred to become Bernardo’s legal guardian because she did not want father’s parental rights terminated. SSA pointed out father lacked the money necessary for a second visit with Bernardo, and repeated its reasons why Bernardo should not be released to his father. Bernardo’s therapist continued to question placing Bernardo with his father in Mexico, and suggested an educational assessment because Bernardo might have special needs, and might need the help of the county’s regional center. Bernardo announced he wished to stay with his aunt and brother.
On July 27, 2010, the juvenile court granted father a continuance of the 18 month review hearing. At the hearing, father’s counsel requested the court to order the county to pay for father’s visitation and increased telephonic contact. The county opposed the request. The court denied the motion without prejudice, explaining it would revisit the matter if father’s counsel provided further information to warrant a change in the existing orders.
On September 17, the juvenile court addressed father’s renewed request for county funds and father’s proposed budget for travel and calls. Airfare from Mexico City to Tijuana cost $378, and cab fare was $28. A six minute phone call cost 90 cents. County counsel objected to the request for funds, noting the county typically did not pay travel expenses for out-of-county or out-of-country parents to visit their children.
The juvenile court denied the request, finding father failed to establish good cause for the expenditure of county funds, noting that father should seek assistance from his family or Mexican authorities. The court also noted the phone calls were very inexpensive.
Bernardo completed a psychological assessment in October. The psychologist noted Bernardo was “experiencing symptoms of anxiety including a sense of impending doom, ” related, at least in part, to the juvenile court proceedings. He displayed average intellectual ability, but suffered from impaired judgment, lacked insight, and showed deficits in his ability to focus and concentrate, and his general fund of knowledge was low. There was no “reason why he would not be able to learn at an acceptable level based on cognitive ability, ” but this “will require time and consistency in order for him to get up to speed academically.” The psychologist concluded Bernardo was about a year behind academically. He showed strong attachment to his foster family, and his “attachment level with his brother [was] considered very important and highly impactful” to his overall emotional well-being. He continued “to struggle with the loss of his mother” and a “further loss may be difficult... to cope with at this time.” The psychologist stated it was “imperative” Bernardo continue in his current placement and educational setting to provide him a sense of stability. The psychologist believed Bernardo would experience an increase in anxiety-related symptoms and would be unable to learn effectively if placed with father, explaining that a move to a foreign country with a father he did not know would likely exacerbate the child’s existing depression and anxiety, and undermine his ability to make a successful placement.
Bernardo’s therapist reported Bernardo was stable and doing well in his current placement and again emphasized a permanent move to Mexico would be detrimental. Bernardo expressed a desire to visit father in Mexico, but to return to California.
Mexican authorities sponsored father for two visits on consecutive days in San Ysidro in late December. On the first day, Bernardo appeared not to know father or remember the earlier visit. He resisted a hug and did not say hello. Father and son conversed very little during the visit. Father brought a toy and showed Bernardo pictures from his cell phone, but Bernardo did not appear to recognize anyone. At the end of the visit, father hugged Bernardo and said good-bye, but Bernardo did not reply. The second day, father brought food and another toy. Bernardo said he liked the toy, and thanked him. Father asked if Bernardo was behaving for his aunt, and Bernardo replied he was. The visit lasted only 30 minutes because father was late crossing the border. Father said good-bye and hugged Bernardo, who reciprocated.
In late January 2011, the aunt maintained a neutral position on adopting Bernardo and agreed to facilitate visits and maintain contact with father. Bernardo reported he liked the visits with father and would like to see him again.
At the 18-month permanency review hearing in February 2011, the social worker testified consistently with his reports that it would be detrimental to Bernardo’s emotional health to place him with father in Mexico. The worker admitted he had not considered Internet or visual telephone services like Skype to facilitate contact. He had inquired of SSA supervisors three or four times whether father could obtain county funds for visitation.
The juvenile court found returning Bernardo to father would create a substantial risk of detriment to his emotional well-being, and found reasonable services had been provided or offered. The court terminated reunification services and scheduled a section 366.26 hearing for June 9, 2011.
II
DISCUSSION
A. Substantial Evidence Supports the Juvenile Court’s Reasonable Services Finding
Father challenges the sufficiency of the evidence to support the juvenile court’s finding at the 18-month permanency review hearing (§ 366.22) that reasonable services had been provided. As explained below, the challenge fails.
Section 366.22, subdivision (a), provides that “the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent or legal guardian. The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.”
Where the child is not returned to a parent at the permanency review hearing, “the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption..., guardianship, or long-term foster care is the most appropriate plan for the child.... The court shall also order termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child unless it finds that visitation would be detrimental to the child. The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian.” (§ 366.22, subd. (a).)
At the section 366.26 hearing, the juvenile court “shall not terminate parental rights if... [a]t each hearing at which the court was required to consider reasonable efforts or services, the court has found that reasonable efforts were not made or that reasonable services were not offered or provided.” (§ 366.26, subd. (c)(2)(A).) Section 366.21, subdivision (e), provides that at each status review hearing “the court shall determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian.”
In determining whether reasonable services have been offered or provided, the juvenile court applies the preponderance of the evidence standard of proof. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 594-598.) “We determine whether substantial evidence supports the trial court’s finding, reviewing the evidence in a light most favorable to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (Id. at p. 598.)
Father observes the visitation plan adopted at the 12-month review hearing allowed him three phone calls per week, and authorized monthly visits at the San Ysidro port of entry, provided father made his own travel arrangements. Father notes throughout reunification he reported he did not have the money to pay his travel expenses or make more than one phone call per week, and notes only one visit occurred during the previous reunification period. He complains the court denied each request “for funding to assist in making calls and visits with his son....”
SSA responds father stipulated on several occasions to the case plan, which did not include funding. SSA also notes father did not request funding until the initial date for the 18-month review hearing, and father failed to timely appeal the September 17, 2010, order denying funding.
When a child is removed from a parent’s custody, the juvenile court must order the social worker to provide child welfare services to the child and the child’s parent, including a presumed father. (§ 361.5, subd. (a).) Reunification services fulfill the legislative goal of preserving the family wherever possible. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787; § 202, subd. (a) [a purpose of juvenile court law is to preserve and strengthen the minor’s family ties whenever possible, reunification of the minor with his or her family shall be a primary objective]; § 16501, subd. (a)(1) [defining “‘child welfare services’” to include “transportation”].) The services must be “appropriate for each family and based on the unique facts relating to that family.” (In re Edward C. (1981) 126 Cal.App.3d 193, 205.) “Visitation shall be as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).) It is an essential component of any reunification plan. (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.)
Father stipulated to, and the juvenile court adopted, at the disposition hearing and all subsequent reviews, case and visitation plans that did not require SSA to fund visits and phone calls. Father did not appeal from the March 30, 2010, order at the 12-month review hearing authorizing visitation at San Ysidro once a month “if father can make his own arrangements for travel....” Nor did he appeal from the September 17, 2010, order expressly denying his funding request for travel and phone calls. Apart from the order setting a section 366.26 hearing (see § 366.26, subd. (b)(l); Cal. Rules of Court, rules 8.450, 8.452), all orders after the disposition judgment in a juvenile case are appealable. (§ 395, subd. (a)(1); In re S.B. (2009) 46 Cal.4th 529, 531-532; In re Cody W. (1994) 31 Cal.App.4th 221, 231 & fn. 10 [parent may not complain of previous case plans stipulated to and not challenged by appeal or writ].) Consequently, father may not attack the orders in this proceeding.
Additionally, apart from any procedural barriers, the circumstances of this case do not support father’s contention the juvenile court had the obligation to pay father’s travel expenses to visit Bernardo. The court erred, however, in failing to fund the cost of two additional weekly phone calls, which would have enabled father to comply with the court’s existing order allowing three weekly telephone visits. Any error on this score was harmless, however.
Father relies on In re L.M. (2009) 177 Cal.App.4th 645, 650 (L.M.), for the proposition a juvenile court may order the county to pay travel expenses in an appropriate case. There, the juvenile court denied a minor’s request for the county to pay his father’s transportation costs to visit the minor at a residential treatment program located several hundred miles from father’s home. The appellate court affirmed the order because the minor failed to show father could not afford the transportation costs for visiting the minor, but the court held the juvenile court has the power, under appropriate circumstances, to order a supervising agency to financially assist a parent who lacks the financial means to travel to and from visitation. (Cf. In re Cleopatra D. (1987) 193 Cal.App.3d 694, 697-698 [mother living out of state was not constitutionally entitled to airfare to attend hearing on petition to terminate parental rights].) The court cited section 727, which grants the juvenile court the power to “make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor, including medical treatment, subject to further order of the court.” (§ 727, subd. (a).) The court construed the broad “statutory power to include the ability to order the payment of travel costs for a parent, so long as ‘appropriated funds are reasonably available.’ [Citation.]” (L.M., supra, at p. 651; see In re Samuel G. (2009) 174 Cal.App.4th 502, 513 [upholding court order directing county health and human services agency to pay travel costs of dependent child’s educational representative].)
SSA concedes the juvenile court had the authority to order the county to pay father’s transportation costs for visiting Bernardo (see § 362 [analogue to § 727 authorizing reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child]), and does not deny funds existed for this purpose. Nor does SSA claim father had the financial ability to pay travel costs. Rather, SSA argues the juvenile court did not abuse its discretion because it did not act arbitrarily or capriciously in concluding that paying the airfare of noncitizens to visit their children would bankrupt the system and compromise the ability to fund basic services.
L.M. provided a “nonexhaustive list” the juvenile court should consider in exercising its discretion, including “the parent’s financial circumstances and ability to pay the necessary travel costs (considering the parent’s income, assets, expenses, and other support obligations); the methods of transportation available and their respective costs; the nature and stage of the minor’s case plan and whether family reunification is contemplated; the parent’s conduct and participation in other aspects of any reunification plan ordered; the frequency of visits ordered and the degree to which the minor is likely to benefit from face-to-face visits; and the availability and adequacy of other forms of parent-child contact (such as telephone calls, letters and e-mail). Then, assuming these and/or other factors support a request for financial assistance with a parent’s travel expenses, a court may require the agency to pay the expenses only if funds have been appropriated that may be used for this purpose. (See Mandel v. Myers (1981) 29 Cal.3d 531, 539-540 [separation of powers doctrine forbids court from ordering legislative branch to enact a specific appropriation, but once funds have been appropriated, court may order that expenditures be made from those funds]; Samuel G., supra, 174 Cal.App.4th at p. 513 [same].)” (L.M., supra, 177 Cal.App.4th at pp. 651 652.)
The L.M. factors show the juvenile court did not abuse its discretion in denying father’s request for transportation funds. True, father could not afford travel costs to visit Bernardo, and the case plan contemplated reunification. But it soon became apparent Bernardo would not benefit from in-person visits with father. The two had never met or spoken with each other. Bernardo’s therapist at an early stage objected to placing Bernardo with father in Mexico, and warned that Bernardo would suffer serious emotional problems if separated from his brother, with whom he shared a familial bond. A later psychological assessment of Bernardo supported the therapist’s opinion, and emphasized that disruption of Bernardo’s strong ties to his current placement and his brother would be detrimental to his emotional well-being, and perhaps hinder efforts to help Bernardo catch up academically. Considering these circumstances and the emotional trauma Bernardo recently experienced in losing his mother, the juvenile court did not abuse its discretion in declining to order the payment of father’s transportation costs because it was unlikely Bernardo would benefit from the visit.
We also note, as Bernardo’s counsel repeatedly observed, it was not clear whether father qualified as a presumed father entitled to services. (See In re Mary G. (2007) 151 Cal.App.4th 184, 197 [noting distinction between presumed, biological and alleged fathers]; Fam. Code, § 7611 [man is presumed to be the natural father of a child under certain circumstances, including marriage to the child’s natural mother, or where he receives the child into his home and openly holds out the child as his natural child].) After his deportation, father did not take it upon himself to inquire about his son or attempt to support him. “Re”-unification and “return... to parental custody” were something of misnomers in this case. Although placement with father was an early and continuing consideration given the tragic circumstances of this case, and SSA rightly encouraged father to take advantage of opportunities to build a relationship with Bernardo, father faced an uphill climb as we have explained. Consequently, it was not unreasonable for the juvenile court to decline father’s request. As the court suggested, funding for child welfare services “is limited to the amount appropriated in the annual Budget Act and other available county funds.” (§ 16501, subd. (a)(1).) Payment of foreign travel expenses, while perhaps not beyond the county’s means in one case, would, if extended generally, divert substantial resources from other necessary and important local services.
The juvenile court, however, should have granted father’s request to pay for three weekly phone calls if the evidence showed funds existed for that purpose. The cost was minimal and may have helped father establish the foundation for creating a relationship with his son. Assuming funds existed and the court erred in not ordering the county to pay for the telephone calls, it simply does not appear more frequent phone calls would have overcome the fundamental problem that father and Bernardo had no personal relationship. Under these circumstances, and considering Bernardo’s attachment to his brother, any conceivable error was harmless.
B. The Juvenile Court Did Not Terminate Visitation
Father also argues there is insufficient evidence to support the juvenile court’s order terminating visitation. The court stated it was adopting the case and visitation plans contained in the social worker’s report and update for the July 27, 2010, permanency review hearing. The visitation schedule in the update provides for one supervised telephone call per week and does not mention in-person visitation. Father objected the plan only mandated once weekly telephone visitation, and he asked for in person visitation in addition to telephone visits. Minor’s counsel stated she had “no objection if [SSA] attempts another border visit with the father.... The child is with his sister. And if it can be arranged, I have no objection.” The court responded, “That’s fine. That’s noted. Thank you....”
Section 366.21, subdivision (h), provides that “[i]n any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child. The court shall make any other appropriate orders to enable the child to maintain relationships with individuals, other than the child’s siblings, who are important to the child, consistent with the child’s best interests.” (Italics added.)
SSA responds visitation was not terminated, rather the juvenile court “modified the previous order in that it no longer called for in-person visits if Father could arrange to be at the San Ysidro Port of Entry for such visits.”
Given the juvenile court’s response to Bernardo’s counsel’s comments, we interpret the court’s order to reflect father may visit with minor if he arranges transportation to the border. The court did not expressly find visitation would be detrimental, and the record supports father’s contention “[t]here was nothing about the [earlier] visits which suggested any detriment.... [T]he child’s therapist... did not oppose having the child visit Father. The child told the social worker he liked visits with his father and would like to see [him] again. [And m]inor’s counsel had no opposition to visitation.” Nothing in the record suggests SSA will oppose an in-person visit.
III
DISPOSITION
The petition challenging the juvenile court’s order setting the section 366.26 hearing is denied, as is the request to stay the hearing.
WE CONCUR: FYBEL, J., IKOLA, J.
Both boys believed their father was “Hugo, ” who lived with their mother until she evicted him a few months before her death. The boys reported Hugo beat their mother and them, and they feared him.