Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. INJ017207 Samuel Diaz, Jr., Judge.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Ramirez P.J.
Father, D.L., was incarcerated on criminal charges when his daughter A.W., was born. Because of the seriousness of the charges, father was denied reunification services on the ground father would remain incarcerated beyond the statutory reunification period for a child under the age of three (Welf. & Inst. Code, § 361.5, subd. (e)(1)), although services were offered to mother, C.W. Father requested visitation at the disposition hearing, and at the subsequent review hearings. Because mother failed to participate in court-ordered treatment, services were eventually terminated and the matter referred for a hearing to select and implement a permanent plan of adoption. (§ 366.26.) Father was informed of the need to file a petition for extraordinary writ at this referral hearing, but did not do so.
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
At the hearing to select the permanent plan, father objected to the termination of his parental rights but did not raise any objection or argument relating to the lack of visits. The court terminated parental rights and father appealed. On appeal, father claims (1) the court improperly delegated to the Department of Public Social Services (DPSS) the absolute discretion to determine if father ever saw his child, and (2) the order terminating father’s parental rights violated due process because only one finding of detriment was made against father in the course of the dependency. We affirm.
BACKGROUND
In April 2008, mother, incarcerated for stealing from an elder adult, gave birth to the minor, A.W. At the time of the birth, father was also in local custody, pending trial on criminal charges of kidnap, oral copulation by force, aggravated assault, criminal threats, rape, torture, and driving while intoxicated. Two days after her birth, DPSS took A.W. into protective custody because mother would remain incarcerated until June, 2008, the person with whom mother wanted the baby placed had a child welfare history, and father was incarcerated, potentially for an indefinite time, and no arrangements had been made for placement of the baby.
Mother did not appeal.
On May 2, 2008, a dependency petition was filed on behalf of A.W. The petition alleged the child was at risk of harm because the parents were unable to supervise or protect the child (§ 300, subd. (b)), and left the child without provision for her support. (§ 300, subd. (g).) Specifically, the petition alleged that mother had failed to benefit from services respecting A.W.’s older half-sibling resulting in termination of services as to that child, mother had a history of methamphetamine abuse, mother and father had engaged in domestic violence whereby father caused mother to suffer a fractured skull and eye injury, and both parents have a criminal history. (§ 300, subd. (b).) The allegation that the child had been left without any provision for support was based on the fact that both parents were incarcerated. (§ 300, subd. (g).) At the detention hearing, the court ordered services for the parents pending further hearing. The court also ordered supervised visits for the parents as directed by DPSS.
The jurisdictional report submitted by DPSS (without objection) indicated that no visits were recommended for father as he was in custody and had questioned his paternity. When interviewed, father requested visits, but the social worker informed him that visits were not possible while he was incarcerated. The father indicated he was willing to participate in services, including drug treatment, although he denied having a substance abuse problem, and appeared to be in denial about his temper and domestic violence problems, attributing his legal problems to the fact the state was going forward with the case against him although C.W. had dropped charges. On August 27, 2008, DPSS informed the court that paternity tests confirmed that D.L. was the father of A.W. Up to this point, father had no contact with the child due to his incarceration.
After several continuances, on September 8, 2008, the court made true findings as to all the allegations of the petition except for the allegation that mother had left the child without provision for support. The minor was adjudged to be a dependent child. (§ 300, subds. (b), (g) [as to father only].) The court denied reunification services to mother initially, because her whereabouts were unknown, and it postponed the disposition hearing for the father. On October 1, 2008, mother appeared in court and reunification services were ordered. Although father had not had any contact with his baby due to his incarceration, he did not make any request for visitation or object to the lack of visits. He did, however, request photographs of the baby.
On January 15, 2009, the court conducted the disposition hearing as to father in conjunction with the status review hearing as to mother’s progress in reunification. As to father, the court adopted DPSS’s recommendations, finding the child came within the provisions of section 300, subdivision (b), and found that it would be detrimental to return the child to either parent. The court denied services to father because he would be incarcerated beyond the statutory time for reunification. (§ 361.5, subd. (e)(1).) Father requested “visitation and[/]or pictures of the baby.” The court orally informed father “We will attempt to do one or both, ” but the clerk’s minutes reflect that the court authorized visitation at DPSS discretion. The court continued services for the mother. No appeal was taken from this hearing.
Because the denial of services was not accompanied by a referral to a hearing pursuant to section 366.26, the disposition order was appealable. (See Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395.)
On May 6, 2009, the court held the 12-month status review hearing. The court found that return of custody to the parents would be detrimental and terminated mother’s reunification services. Father’s counsel requested photographs of the baby, as he had never seen the baby, and his counsel wondered if the court would allow some type of special visit, since father had never had contact with the child. The court ordered DPSS to obtain a photograph for father but indicated it did not know about the visit. (“We’ll see what we can do about that.”) The court then set the matter for a hearing to select and implement a permanent plan for the child.
On September 30, 2009, the court conducted the selection and implementation hearing. Father objected to the termination of parental rights because he wanted to be involved in the child’s life, but his “predicament of being in custody has prevented that.” The court found the child would likely be adopted and terminated parental rights of both parents. On October 1, 2009, father appealed the judgment terminating his parental rights.
DISCUSSION
On appeal, father raises two issues. He argues that (1) the court improperly delegated to DPSS the absolute discretion to determine if father saw his child, and (2) the termination of his parental rights was a violation of due process because there was only one finding of detriment made against him.
1. The Issue of Lack of Visitation Was Not Preserved at the Section 366.26 Hearing.
Father argues that the juvenile court improperly delegated absolute discretion over visitation to DPSS. Recognizing that father did not raise this issue at the hearing, father argues he may nonetheless raise the issue on appeal, relying on the decision of In re S.B. (2004) 32 Cal.4th 1287. Further, he asserts the visitation orders are reviewable on appeal from a hearing at which parental rights were terminated because the trial court failed to admonish him of the need to file a petition for extraordinary writ when services were denied. We disagree with both premises.
Visitation rights arise from the very fact of parenthood and the constitutionally protected right to marry, establish a home, and bring up children. (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) For this reason, any order placing a child in foster care, and ordering reunification services, must provide for visitation between the parent (or guardian) and the child. Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.)
The power to decide whether any visitation occurs belongs to the court alone. (In re C.C. (2009) 172 Cal.App.4th 1481, 1489; In re S.H. (2003) 111 Cal.App.4th 310, 317.) Visitation is not integral to the overall plan when the parent is not participating in reunification efforts. (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Thus, when reunification services are not ordered, the court has broad discretion to grant or deny visitation. (Id. at p. 458.) While being incarcerated, in and of itself, should not be a barrier to visitation for a parent who is receiving reunification services (see In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407; In re Precious J. (1996) 42 Cal.App.4th 1463, 1477), for an incarcerated parent who is not receiving reunification services, visitation may be denied. (§ 361.5, subd. (f).)
Because visitation is discretionary in such cases as this, it behooves a parent to object to an ambiguous visitation order or to object when visits which have been permitted (not ordered) are not arranged by DPSS. If the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339; see also In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Under such circumstances, where the social services agency failed to arrange visits that were not required by law, the parent must object or to bring the matter to the court’s attention at the earliest opportunity.
Here, at each hearing where the issue of visitation was raised by father, the court indicated that visitation might not be possible due to father’s custodial circumstances. While father requested visits and photographs at more than one hearing, visits were never ordered, and father never challenged the lack of visits on appeal or by writ. Although the clerk’s minutes relating to father’s disposition hearing indicate the court granted visitation in DPSS’s discretion, the oral proceedings of that date reflect that visitation was neither ordered nor denied and no absolute discretion was delegated to DPSS. To the contrary, the court adopted the recommendations of DPSS, without objection, which indicated that father’s custodial status prevented the scheduling of visits.
Thus, although father had multiple opportunities to cross-examine the social worker and to object to the lack of visits based on his incarceration, he did not object at any time, and did not appeal from any of the orders in which the court indicated his custody status precluded visits. We are left, then, with evidence presented to the court that father’s incarceration prevented visits and nothing in the record contradicts this conclusion.
Father argues that he may raise the issue regarding faulty visitation on appeal because the father was not given a writ advisement, citing Jennifer T. v. Superior Court (2007) 159 Cal.App.4th, 254, 259-260, and In re Lauren Z. (2008) 158 Cal.App.4th 1102. Father is mistaken in two regards: First, at the disposition hearing where the court denied reunification services, a writ advisement was not required because that order was appealable. The general rule in juvenile dependency cases is that all orders (except for an order setting a section 366.26 hearing), starting chronologically with the dispositional order, are appealable without limitation. (In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1435 [italics in original]; Wanda B. v. Superior Court, supra, 41 Cal.App.4th at p. 1395.) As a consequence of section 395, an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. (Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 26.) To the extent that the court may be considered to have made orders delegating discretion to DPSS whether to arrange visitation, any challenge has been forfeited by the failure to timely appeal those orders.
Second, the order setting the section 366.26 hearing was made in May 2009, at which time the court did give father (and mother) the writ advisement. Father did not seek writ review of this order or challenge the lack of visitation. In our view, the error was forfeited. (Sara M. v. Superior Court (2005)36 Cal.4th 998, 1018.)
2. Where Reunification Services Are Denied Pursuant to Section 361.5 and No Review of that Order Is Sought, No Additional Detriment Findings Are Required.
Father also argues that his due process rights were violated because the court terminated his parental rights after only one finding of detriment had been made against him. We disagree.
When reunification services are denied at a dispositional hearing, the juvenile court is authorized to immediately refer a matter for a section 366.26 hearing at which parental rights may be terminated. (§ 361.5, subd. (f).) The only detriment finding required is that which is required for removal of physical custody, pursuant to section 361. Here, the trial court adopted the recommendations of DPSS, making the requisite detriment findings at the initial disposition hearing regarding mother’s custody. Specific findings relating to father were submitted to the juvenile court along with the recommendations relating to mother, without objection in the initial disposition report, and again in subsequent reports submitted without objection in connection with father’s disposition hearing.
Father suggests that in order to terminate parental rights, there must be multiple hearings at which separate findings of detriment have been made. In support of his argument, he relies primarily on the case of Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 (Cynthia D.). Father argues that the rule of Cynthia D. requires multiple findings of detriment to support a finding that a parent is unfit, a finding required by Santosky v. Kramer (1982) 455 U.S. 745, 751 [102 S.Ct. 1388, 71 L.Ed.2d 599].
This authority is inapposite for several reasons. First, the issue in Cynthia D. was whether the statutory burden of proving detriment at the referral hearing (by a preponderance of evidence) violated a parent’s due process rights when the court terminates services and refers a case for a section 366.26 hearing. The California Supreme Court simply held that proof of detriment by a preponderance of evidence at a referral hearing did not violate due process because there had been a series of detriment findings over the course of the dependency. Here, the finding of detriment at father’s disposition hearing was made by clear and convincing evidence, the standard required by Santosky, so there was no due process violation.
Second, Cynthia D. involved a dependency in which reunification services had been provided and the parent failed to complete the plan requirements. When services are ordered to reunify a family, there is a statutory presumption that the child will be returned to the parent’s custody unless the social services agency proves detriment by a preponderance of the evidence. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) When services are denied, the general rule favoring reunification services no longer applies; it is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 477.) No additional findings of detriment are required.
Third, the court’s discussion that multiple findings of detriment are equivalent to a showing of unfitness required to terminate parental rights pursuant to Santosky v. Kramer, supra, 455 U.S. 745was dicta, which is not binding. (9 Witkin, Cal. Proc. (5th ed. 2008) Appeal, § 474, pp. 532-533.)
Here, father does not challenge the constitutionality of the statutory scheme which authorizes a juvenile court to deny services at the disposition hearing (the so-called “by pass”) and to immediately schedule a section 366.26 hearing. Further, the finding of detriment made at father’s disposition hearing was made by clear and convincing evidence, satisfying the Santosky burden of proof. (See In re Baby Boy H., supra, 63 Cal.App.4th at p. 477 [holding that the legislative amendment to section 361.5 permitting by pass of reunification did not violate due process or Cynthia D., supra, 5 Cal.4th 242].)
Additionally, father’s position is at odds with the legislative intent behind the “by pass” provisions of section 361.5, subdivision (b), which were intended to promote expeditious permanency for children of parents who will not benefit from reunification services. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, 745.) The intent to reserve scarce fiscal resources for those cases where reunification is possible or probable, and goal of expeditious permanency and stability for dependent children under the age of three would be undermined by an interpretation requiring additional hearings after it has already been determined that reunification is not likely based on the various considerations embodied in section 361.5, subdivisions (b) and (e).
Father has not provided any authority to support his contention that multiple findings of detriment are required in cases where reunification services are denied, and we have found none. The primary goal of the legislative enactments is to expedite finality and thereby achieve permanency for the child. (In re Zeth S. (2003) 31 Cal.4th 396, 406.) This purpose would be defeated if we adopted a rule that would delay permanency and stability for a child under the age of three, in order to conduct additional hearings for reasons unrelated to the child’s best interests or a parent’s interest in reunification.
DISPOSITION
The judgment is affirmed.
We concur: Richli J. King J.