Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 73211, 73212
OPINION
GEMELLO, J.
In these consolidated appeals, the parents challenge the juvenile court’s denial of visitation after termination of reunification services and argue that because they were denied visitation, the juvenile court erred in terminating their parental rights. We affirm.
BACKGROUND
In February 2006, this court denied parents’ consolidated petitions for extraordinary writ review of orders setting a permanency planning hearing for Thomas W. (born in 1992) and Ashley W. (born in 1997). (In re Thomas and Ashley W. (Feb. 28, 2006, A112407, A112408) [nonpub. opn.].) The parents contended that the juvenile court improperly delegated discretion over visitation in violation of their statutory and due process rights. We affirmed the juvenile court. The extensive factual background to termination of reunification services is set forth in our earlier opinion. We do not repeat it here.
Father’s Section 388 Petition
On March 9, 2006, Father filed a section 388 petition seeking reinstatement of reunification services, including visitation with the children in a therapeutic setting. He asserted that reinstatement of services would benefit the children because “[i]t is important for the children to see that their father has changed and is now able to provide a healthy caring home.” In his declaration of changed circumstances, Father averred that he had complied completely with his case plan. He continued to test negative in twice weekly drug tests, he completed an anger management program and two parenting classes, and he continued to attend domestic violence prevention classes and almost daily AA and NA meetings.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court found that “[t]he best interest of the child[ren] may be promoted by the requested new order” and scheduled a hearing, which took place March 23, 2006. At the hearing, Father testified about his compliance with the requirements of the visitation order and provided documentary corroboration. Father testified that he believed his brother and wife, the children’s caretakers and de facto parents, were discouraging the children from seeing the parents.
In a March 2006 section 366.26 report to the court, the social worker stated he had checked in with the children weekly and updated them on the parents’ progress. The children continued to say they did not want visits. The social worker opined that the paternal aunt and uncle were not interfering in the children’s decisions about visitation. The children’s therapist agreed that the children were not ready to have visits and opined it would take a great amount of preparation to alleviate the children’s anxieties about visitation. Further, another therapist, Dr. Patterson, had opined in October 2005 that “ ‘a longer period of sobriety is necessary (e.g., 12 months out of a custodial environment),’ before reunification should be considered.” Because Father was on parole, the social worker stated he was not out of a custodial environment. The children were thriving in the paternal relatives’ care. The social worker recommended termination of visitation.
The court summarily denied the section 388 petition. Father appealed the order (case number A114187). The section 366.26 hearing was continued to June 12, 2006.
Mother’s Section 388 Petition
Two months after denial of Father’s section 388 petition, on May 24, 2006, Mother filed a request to change the court order suspending visitation to allow resumption of visits. Mother wrote a letter to the court stating that she had remained clean and sober and had tested negative for drugs since September 2005. She had completed a relapse prevention program in December 2005. She was regularly attending AA and NA meetings and working on the 12 steps. She was receiving treatment for her specifically diagnosed mental health problems. She had held a full time job for seven months. Mother wrote the resumption of visits would help the children heal.
The court found “[t]he best interest of the child[ren] may be promoted by the requested new order” and scheduled a hearing on the motion on June 12, 2006, the date of the section 366.26 hearing. At the start of the June 12 hearing, the court said it would “hear the 388 after we finish with the .26, since that could render it moot, potentially, and it would be putting the cart before the horse.” The court overruled Mother’s objection to this schedule.
Section 366.26 Hearing
Mother called the current social worker, Larry Bogatz, as a witness and questioned him about visitation. Bogatz testified that he told the children about once a week that their parents were doing well and were testing clean, but the children said they were not ready for visits. They were highly skeptical about the parents’ ability to maintain their sobriety.
Mother testified about her compliance with services and her progress in recovery. She testified that she had gained insight into how she had used methamphetamine in the past to deal with her attention deficit hyperactivity disorder (ADHD) and she had learned how to cope with the stress that triggered her drug abuse. She testified that she had a close relationship with her children that had been damaged by the lack of visitation. She believed the children did not want visits because they did not want to face the pain caused by the trauma they had experienced, and she was concerned they would regret that decision as they grew older. Mother asked the court to find the children had an important and beneficial relationship with Mother that should be preserved.
Father testified again that he was completing all court-ordered services and he had maintained his sobriety since before his release from custody. He again testified that he was concerned his brother and sister-in-law were interfering with the resumption of visitation. On cross-examination, Father acknowledged the family’s extensive involvement with child protective services and the children’s frequent removals from the home. The court commented that it had read every page of the three volumes of the court record, which documented this history. The removal of the children arose from incidents when Father broke windows and frightened Mother, fired a gun in a road rage event, used pepper spray on a man in a restaurant, and doused his neighbor with gasoline. Many of these incidents took place in front of one or both of the children. For four of the past 13 years, Father had been in prison. Father nevertheless testified that he was very close to both children before his last incarceration and the suspension of visits. He asked the court to choose guardianship rather than adoption as the permanent plan.
A social worker formerly assigned to the case testified both as to her observations of the family and as an expert on permanency planning. She testified that the bond between the children and their parents was “incredibly fragile” and based on fear. They were inappropriately concerned about their parents’ well-being. They felt secure for the first time living with their paternal aunt and uncle and they looked to those caretakers for parental support and care.
The juvenile court found by clear and convincing evidence the children were likely to be adopted. (§ 366.26, subd. (c)(1).) The court chose adoption as the permanent plan and terminated parental rights. Implicitly, the court found the beneficial parental relationship exception did not apply. (§ 366.26, subd. (c)(1)(A).) The court commented, “It will be comforting to these children at some point to be told that their parents are clean and sober and have addressed their issues and that [the children] are clinging to ideas of taking care of their parents in a parentified manner can be put to rest, and they can just concentrate on being children. [¶] But to say that there is any detriment whatsoever to these children in severing a bond which is so unhealthy, so unwholesome, and so utterly broken is to absolutely ask the impossible of this Court.” The court specifically found that there was “such animosity between these parents and the relative pool at large, that, in fact, my strong suspicion is that this is more about justifying old factions than really wanting to parent these children.” The court also specifically found further visitation would be detrimental to the children and terminated the parents’ visitation rights. The court dismissed Mother’s section 388 petition as moot.
Both parents appeal the order terminating their parental rights and Mother appeals the denial of her section 388 petition. These appeals were assigned appeal number A114523 and were consolidated with Father’s appeal of the denial of his section 388 petition.
After Respondent filed its brief, Father moved to strike the brief because it referred to a reporter’s transcript that was not in the appellate record, the transcript of the December 5, 2005 review hearing. The court denied the motion but stated that it would ignore Respondent’s references to that transcript and invited Father to point out those improper references in its reply brief. Father has provided that assistance and we have ignored Respondent’s improper record references.
DISCUSSION
In the instant appeals, the only cognizable challenge is to the denial of visitation during the period after termination of reunification services and before the section 366.26 permanency planning hearing. Although the instant appeals appear to raise the same visitation issues that were raised in the parents’ December 2005 writ petitions, the legal issues are in fact much different. In the writ petitions, the parents challenged the denial of visitation during the reunification period. Before termination of services, the purpose of visitation is to fulfill the agency’s affirmative obligation to facilitate family reunification. (In re Julie M. (1999) 69 Cal.App.4th 41, 49; § 362.1, subd. (a)(1)(A).) Reunification services must include visitation absent a finding of detriment to the children. (§ 362.1, subd. (a)(1)(A).) It is in this context that one court commented, “To provide the minor and/or his therapist with a veto power over this essential reunification service seems to us to undermine any hope of actual reunification.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1139, emphasis added.)
In contrast, after reunification services are ordered terminated, “the focus shifts to the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) By the time a section 366.26 hearing is set, parental unfitness is so well established that there is no longer reason for the court to believe that a nurturing parent-child relationship exists and the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H., at p. 309; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) The court need not continue to consider the possibility of family reunification unless the parents demonstrate changed circumstances sufficient to revive the issue. (In re Marilyn H., at p. 309.)
The law nevertheless requires ongoing visitation pending the section 366.26 hearing unless the court finds that visitation would be detrimental to the child. (§ 366.21, subd. (h).) It is the denial of visitation following the December 2005 termination of reunification services and pending the section 366.26 hearing in June 2006 that parents challenge.
Two purposes for ongoing visitation pending the section 366.26 hearing can be discerned from the statutory scheme and the case law. First, ongoing visitation protects the parents’ substantive due process rights by holding open an escape mechanism to avoid termination of parental rights. A parent who can show that circumstances have changed since services were terminated and that it would be in the child’s best interest to reinstate reunification services can file a section 388 petition seeking relief before the section 366.26 hearing takes place. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re Kimberly F. (1997) 56 Cal.App.4th 519, 530.) In ruling on such a petition, the juvenile court considers the following factors: “the seriousness of the reason for the dependency and the reason the problem was not overcome; the relative strength of the parent-child and child-caretaker bonds and the length of time the child has been in the system; and the nature of the change in circumstance, the ease with which the change could be achieved, and the reason the change was not made sooner.” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) If visitation is denied after termination of reunification services, any parent-child bond is likely to weaken and parents would have a harder time demonstrating that the reunification order should be changed.
Second, ongoing visitation is essential to establishing the beneficial parental relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(A).) The exception applies if the court finds a compelling reason that termination of parental rights would be detrimental to the child because the parents “have maintained regular visitation and contact with the child” and the child would benefit from continuing the relationship. (Ibid.) If visitation is denied, it is a foregone conclusion that the parents will not be able to establish the exception. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505.)
Another purpose of ongoing visitation is to preserve the parent-child relationship in the event the court finds the child is not adoptable and thus does not terminate parental rights. (§ 366.26, subd. (c)(3).) Because the children’s adoptability was not contested in this case, we do not address this purpose in our analysis.
I. Section 388 Petitions
Both parents argue that the juvenile court erred by denying their section 388 petitions for visitation. A parent who files a section 388 petition bears the burden of showing by a preponderance of the evidence that circumstances have changed and that the proposed modification is in the child’s best interests. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review the denial of a section 388 petition for abuse of discretion, which includes an assessment of whether the juvenile court findings were supported by substantial evidence. (In re Stephanie M., at pp. 318-319.)
Preliminarily, we reject the Department’s contention that parents’ challenges to the denials of their section 388 petitions are precluded by the law of the case doctrine. “The rule of ‘law of the case’ generally precludes multiple appellate review of the same issue in a single case.” (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434, emphasis added.) In our prior opinion, we found no error in the way the visitation order was implemented from August to December 2005. That holding does not preclude a challenge to the way the order was implemented after December 2005.
A. Father’s Section 388 Petition
Father argues that his petition should have been granted because between December 2005 and March 2006 he complied with all of the requirements listed in the visitation criteria. By continuing to deny visits, he argues, the social worker relied solely on the wishes of the children and the children’s therapists, an improper delegation of discretion over visitation. (See In re Julie M., supra, 69 Cal.App.4th at pp. 48-49.)
Father relies on case law applicable to visitation as an element of reunification services. (See, e.g., In re Nicholas B., supra, 88 Cal.App.4th 1126; In re Alvin R. (2003) 108 Cal.App.4th 962.) His argument that visitation is an essential component of any reunification plan is not on point because reunification services have been terminated. Similarly, Father is mistaken when he faults the agency for doing nothing to promote visitation, for example by informing the children in detail about the parents’ compliance with the visitation order or by requiring the children to attend family therapy. He again cites cases that involve visitation as an aspect of the agency’s affirmative duty to promote family reunification. (See, e.g., In re Nicholas B., p. 1139; In re Alvin R., p. 973.)
Father relies on In re Hunter S. for the proposition that a juvenile court errs by allowing the children to decide whether visits will occur even in the period after reunification services have been terminated. (In re Hunter S., supra, 142 Cal.App.4th 1497.) While the procedural posture of Hunter S. is the same (that is, reunification services had been terminated and there was a pending section 366.26 hearing, the issue was the juvenile court’s failure to enforce its order granting visitation over a period of three years during the children’s guardianship, despite the mother’s persistent efforts to obtain visits. (In re Hunter S., at pp. 1506-1507.) By the grant of visitation, the court had necessarily found that visits would not be detrimental to the child, even though the child objected to visiting with his mother. (§ 361.5, subd. (a); In re Hunter S., at p. 1501.) The juvenile court’s failure to enforce its visitation order in these circumstances “effectively denied [the mother] any postreunification opportunity to repair her relationship with her son.” (In re Hunter S., at p. 1507.)
In contrast, the juvenile court here suspended visitation during the reunification period, after finding visits would be detrimental to the children, and set criteria for the resumption of visits. It was only after finding that the social worker in consultation with the therapists properly denied visits that the court terminated reunification services. After services were terminated, the children’s interests in permanence and stability took precedence over the parents’ interests in reunification. When Father’s petition was filed, a section 366.26 hearing was scheduled for March, less than four months after termination of services, and the anticipated permanent plan was adoption. In this brief period between the reunification period and the section 366.26 hearing, the children’s interests in severing their ties with the parents and establishing permanence and stability with the prospective adoptive family far outweighed the parents’ interest in holding open the possibility of reunification or maintenance of any parental relationship.
Under section 388, Father had the burden of demonstrating changed circumstances that outweigh the children’s need for permanence and stability. Father offered proof that he attended required classes and programs and continued to test clean. These facts, however, did not demonstrate that visitation was in the children’s best interests. There was substantial evidence that visitation was not in the children’s best interests. The children’s therapist and the social worker reported that the children did not want visits because they did not feel safe or secure in their parents’ care. The therapist opined they were not ready for visits. The children needed to feel in control of their contact with their parents. They finally were in a stable situation where they felt safe and could start the healing process and they needed to be freed from the repeating cycle of removal and reunification. In his psychological evaluations only five months previously, Dr. Patterson concluded that reunification should be considered only after a longer period of sobriety (i.e., 12 months out of a custodial environment). The children were thriving in their aunt and uncle’s care and the social worker opined that the aunt and uncle were not improperly influencing the children.
The juvenile court did not abuse its discretion in denying Father’s section 388 petition. The juvenile court record amply demonstrated that the children had endured a chaotic childhood with a repeating cycle of removals, reunifications and relapses and a continuation of that cycle would cause them further damage. The evidence showed that visitation in the few months between the termination of reunification services and the section 366.26 hearing would be detrimental to the children. Notwithstanding our denial of parents’ writs, parents continue to argue that the juvenile court improperly delegated its discretion over visitation. (See In re Julie M., supra, 69 Cal.App.4th at pp. 48-49.) The juvenile court directly exercised its discretion over visitation by suspending visitation because it would cause detriment to the children, setting criteria for the resumption of visits, and considering evidence at the section 388 hearing about whether the order was being properly implemented and whether circumstances had changed such that visits should resume.
Father argues for the first time in his reply brief that it is impossible to perform meaningful appellate review of the denial of his section 388 petition because the juvenile court made no factual findings. Father acknowledges the general rule is that in the absence of express findings an appellate court presumes the trial court applied the correct legal standards and reviews the record to see if substantial evidence supports the court’s ruling. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) We will not entertain an argument raised for the first time in a reply brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)
B. Mother’s Section 388 Petition
Mother argues that the juvenile court erred by failing to rule on her section 388 petition before deciding whether to terminate her parental rights. Because the section 388 petition procedure is a constitutionally required “escape mechanism” allowing a parent to avoid termination of his or her parental rights, it follows that the section 388 petition must be decided before findings are made on the section 366.26 issues. (See In re Marilyn H., supra, 5 Cal.4th at p. 309.)
Mother argues the error is reversible per se under Judith P. v. Superior Court (2002) 102 Cal.App.4th 535. This per se reversal standard has been rejected in subsequent court of appeal opinions, criticized in a leading secondary treatise, and undermined by a later California Supreme Court decision. (See, e.g., In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1919-1420 & fn. 14; Seiser & Kumli, California Juvenile Courts: Practice and Procedure (2007 ed.) § 2.194[2], p. 2-465; In re Celine R. (2003) 31 Cal.4th 45, 58-59.) Generally, courts of appeal have applied the harmless beyond a reasonable doubt standard of prejudice where a parent’s federal constitutional rights have been violated. (See, e.g., In re Sabrina H., at p. 1419 [citing cases].) Seiser and Kumli and one appellate court have taken the position that harmless by clear and convincing evidence is the appropriate standard because clear and convincing evidence is the prevailing standard of proof in juvenile dependency proceedings. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515; Seiser & Kumli, § 194[2], pp. 2-465 to 2-467.)
Even if we assume that the procedural error rises to the level of a federal due process violation and that the appropriate standard of prejudice is harmless beyond a reasonable doubt, we conclude the error was harmless beyond a reasonable doubt. Mother presented evidence at the section 366.26 hearing about whether the visitation order was properly implemented after December 2005. She testified about her compliance with the criteria of the visitation order, which included substance abuse and psychiatric treatment and consistently clean drug tests since September 2005. She testified that she had gained insight into her problems and learned coping skills to prevent relapses. Finally, Mother testified about the close bonds she had with her children in the past and the benefit she believed they would receive by repairing those bonds. Thus, the record contains all of the evidence relevant to her section 388 petition.
The court found that the parents did not prove they had a beneficial relationship with the children and that visitation would be detrimental to the children. The findings were supported by substantial evidence. The former social worker and permanency planning expert testified that the children’s relationship with their parents was based on fear. The children had a close bond with their aunt and uncle, were thriving in their relatives’ custody, and looked to their aunt and uncle for parental support and care. As the parents themselves acknowledged, the children were experiencing pain and trauma as a result of their experiences with them. The children’s long history of removals from their parents and their exposure to acts of violence was well documented in the juvenile court record and confirmed at the hearing. It is significant to our review that the juvenile court expressly stated it had read and considered every page of the three-volume record and observed the demeanor of the father and mother while testifying. We reiterate that the statutory scheme mandates that the primary concern at the section 366.26 hearing was to provide permanence and stability to the children after the lengthy dependency proceedings and the parents’ multiple unfulfilled opportunities to reunify. (See In re Marilyn H., supra, 5 Cal.4th at p. 309; § 366.26, subd. (c).)
Arguing to the contrary, Mother relies on cases reviewing the denial of visitation during the reunification period. (See, e.g., In re Julie M., supra, 69 Cal.App.4th at pp. 49-50; In re S.H. (2003) 111 Cal.App.4th 310, 317-318; In re Nicholas B., supra, 88 Cal.App.4th at pp. 1130-1132.) For the reasons already discussed, these cases are inapposite. Mother also relies on In re Chantal S. (1996) 13 Cal.4th 196 and In re Donnovan J. (1997) 58 Cal.App.4th 1474, which involved visitation orders imposed pursuant to section 362.4 following termination of dependency jurisdiction. She cites those cases for the rule that a court may not delegate its discretion over visitation. She does not argue that her right to visitation was comparable to the parents’ in those cases. As we explain above, the court here did not improperly delegate its discretion over visitation.
Both petitions for visitation relied on belated efforts at recovery that barely cast a shadow over the children’s prolonged chaotic childhoods. The children’s interests in obtaining a loving, stable and secure home far outweighed the parents’ narrow post-reunification interest in preserving their parental ties. “A petition which alleges merely changingcircumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Visitation was properly denied.
II. Termination of Parental Rights
The parents argue that the juvenile court erred by terminating their parental rights rather than finding the beneficial parental relationship exception applied. We are not persuaded that their due process rights were violated because the suspension of visitation precluded them from making the showing required to invoke the exception. We have addressed this argument in the context of affirming the juvenile court’s denial of the section 388 petitions. The parents did not meet their burden of showing that changed circumstances called for the resumption of visitation and that visitation would serve the children’s best interests, nor did they show that their circumstances brought them within the beneficial parental relationship exception. The court did not err by terminating parental rights.
DISPOSITION
The order denying Thomas W.’s section 388 petition, the order dismissing Ellen W.’s section 388 petition, and the order terminating parental rights are affirmed.
We concur. JONES, P.J., SIMONS, J.