Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Randolph M. Hammock, Referee. Los Angeles County Super. Ct. No. CK70409
Lori A. Fields, under appointment by Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
BIGELOW, J.
In a previous appeal, we affirmed the juvenile court’s jurisdictional and dispositional orders establishing jurisdiction over D.B. and denying mother reunification services. S.M. (mother) now appeals from the juvenile court’s order limiting her visitation with D.B. We reverse the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth a detailed factual and procedural background of this matter in the unpublished opinion for case No. B208677. The juvenile court asserted jurisdiction over D.B. after he suffered brain and retinal injuries that, according to doctors, appeared to be nonaccidentally inflicted. The juvenile court also denied mother reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6). However, at the May 21, 2008 disposition hearing, the court encouraged mother to attend a counseling program, visit D.B. regularly, stabilize her medical condition, and submit a section 388 petition. D.B. was placed with the paternal grandparents. The court ordered that mother have monitored visits with D.B. twice per week.
We grant mother’s request that we take judicial notice of the record in In re D.B. (Mar. 18, 2009, B208677) [nonpub. opn.]. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1429, fn. 2.)
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
In mid-June 2008, the Department of Children and Family Services (DCFS), filed a status review report in advance of a six-month review hearing pursuant to section 366.21, subdivision (e). DCFS reported mother had begun weekly visits with D.B. At the last visit before the report, mother and the maternal grandmother were excited to see D.B. and brought toys for him. The social worker reported D.B. may have been irritable or sleepy “because he did not care to interact and cried for most of the visit.” DCFS acknowledged mother was to have visits with D.B. twice a week. DCFS recommended father continue receiving reunification services, and that all of the court’s previous orders remain in full force and effect.
The report additionally noted that mother “reported that she is currently seeking employment. She also reported that she wanted to look into filing an appeal to get family reunification services with the baby, [D.B.]. [Mother] insisted that she did not purposely harm her child and would like to have the opportunity to have him returned to her care.”
At the June 18, 2008 six-month review hearing, D.B.’s attorney had prepared an order regarding mother’s visitation. The order provided that: (1) mother and maternal grandmother were not to contact the paternal grandparents for any reason; (2) mother was to arrange visits with the DCFS social worker only; (3) mother’s visits were to take place in a DCFS office; (4) mother was to have visits once per week; and (5) the next court report was to address mother and maternal grandmother’s compliance with not contacting the paternal grandparents. Respective counsel for father and DCFS approved and signed the order. However, neither mother’s counsel nor mother signed the order. The DCFS status review report included no facts related to the order.
At the hearing, mother was represented by a colleague of mother’s regular counsel. At the beginning of the hearing, the court asked if any party would like to be heard on DCFS’s recommendation that family reunification services to father continue, and that the court set a hearing under section 366.21, subdivision (f). D.B.’s counsel responded: “Not with regards to the recommendation, Your Honor. I just want to make sure the court has the attorney order I prepared. Miss Lee [mother’s counsel] obviously could not sign it, but those orders are very important at this time.” The juvenile court did not respond directly and instead addressed father about his visitation with D.B. and his efforts to comply with the case plan. The court found continuing jurisdiction was necessary and the placement with the paternal grandparents was appropriate. The court admonished father to comply with the case plan, and set a 12-month permanency hearing.
There was no discussion of mother’s visitation until the very end of the hearing. The court stated that it had the attorney order from D.B.’s counsel, it had reviewed the order and found it appropriate, and was signing and adopting the order. D.B.’s counsel thanked the court, then added: “And, Your Honor, perhaps to advise the mother of it, you could read at least the first few items on the attorney order.” The court read the first three items on the order, then continued, “The mother may have visits one time per week, all right? Do we have any questions about that? That seems pretty clear and unequivocal to me. All right?” The juvenile court further warned mother if she violated the order, the court would consider ending all visitation. All other previous orders were to remain in effect.
In August 2008, mother filed this appeal challenging the visitation order. In March 2009, DCFS informed us by letter it would not file a brief opposing or supporting mother’s position. D.B.’s trial counsel did not submit a recommendation for appointment of counsel for D.B. on appeal.
We requested mother, and any other party who so desired, to provide supplemental briefing on two issues of initial concern. First, we asked mother to address whether she had forfeited her claims by failing to object to the reduction in visitation at the June 2008 hearing. In her supplemental brief, mother argued she had in fact objected as evidenced by the absence of her counsel’s signature on the attorney order presented to the court. While a clearer objection may have been desirable, we are persuaded that mother’s apparent refusal to sign the attorney-prepared order, when considered with D.B.’s counsel’s statement to the juvenile court that mother’s counsel “obviously could not sign” the order, was sufficient to preserve mother’s claim for appeal. We are also persuaded by mother’s argument that further objection would have been futile. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1001.) The juvenile court had already been made aware mother was not in agreement with the attorney-prepared order, and asked only for questions about the order, not argument. We also took judicial notice of the juvenile court file on our own motion, and asked for supplemental briefing to address our concern that subsequent juvenile court orders had rendered the appeal moot. Mother’s response has satisfied us that the appeal is not moot.
Visitation is crucially important for the parent-child relationship, even after reunification services have been terminated. This court previously noted in In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504: “Courts have long recognized that, in the context of dependency proceedings, a lack of visitation may ‘virtually assure[] the erosion (and termination) of any meaningful relationship’ between mother and child. [Citation.] Even after family reunification services are terminated, visitation must continue unless the court finds it would be detrimental to the child. (§ 366.21, subd. (h).)”
However, the juvenile court has the discretion to determine the terms and conditions of visitation. (In re Julie M. (1999) 69 Cal.App.4th 41, 48-49.) We will not reverse such an order unless the record clearly shows the trial court abused its discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) Only if “the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination,” will we reverse such an order. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “ ‘ “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citations.]” (Id. at pp. 318-319.)
Here, the record provides no facts to suggest a reduction in mother’s visits from twice to once per week was appropriate or reasonable. In advance of the six-month review hearing, the DCFS report included only positive or neutral comments about mother’s visitation with D.B. The social worker noted then one-year-old D.B. appeared irritable or sleepy during a visit, but the comment did not attribute this to a fault on mother’s part, nor did DCFS suggest fewer visits would be appropriate as a result. At the hearing, there was no evidence offered regarding mother’s visitation with D.B. At most, we can infer from the order there may have been a problem with mother and the paternal grandparents and arranging visits. But neither the parties nor the court referenced any facts or evidence to explain or support the order reducing mother’s visits. In re Elizabeth M. (2008) 158 Cal.App.4th 1551 (Elizabeth M.), offers a helpful comparison. In Elizabeth M., the juvenile court terminated dependency jurisdiction and reduced the father’s visits based on a stipulation. The multipage stipulation covered several issues in addition to father’s visitation. Although the first page of the stipulation was signed by all counsel, a subsequent page contained interlineations in a second handwriting. The interlineations significantly reduced father’s visits and were not initialed by counsel. (Id. at p. 1555.) The juvenile court entered an order adopting the stipulation at the hearing at which jurisdiction was terminated. However, the court did not discuss or comment on the reductions to father’s visits. The Court of Appeal noted the general presumption that the lower courts have acted properly in reaching their decision was “not sufficient to carry the day” due to the highly irregular circumstances. (Id. at p. 1557.) Because the crucial interlineations were not signed by counsel or explained, there had been no hearing on a reduction in visits, and the record contained no evidence supporting or justifying a reduction of father’s visits, the court reversed the visitation order.
We are faced with a similar situation. There is no evidentiary support in the record for the order reducing mother’s visits. While the juvenile court in this case was more explicit at the June 2008 hearing about the new frequency of mother’s visits than the court in Elizabeth M., the fact remains that the reduction was pursuant to an attorney-prepared order that mother’s counsel had not signed. Although DCFS counsel signed the order, the status review report contained no factual support for a reduction in mother’s visits, and it was not DCFS’s recommendation. While the juvenile court stated the content of the order, it did not explain or reference supporting evidence or facts necessitating the order.
As explained above, the juvenile court has significant discretion in determining the terms and conditions of visitation. But when the court makes an order, it cannot be arbitrary and must have some legal or factual basis. (In re William B. (2008) 163 Cal.App.4th 1220, 1229 [order for continued reunification services was abuse of discretion because it was not supported by substantial evidence].) Were any such basis inferable based on the record, we would accord significant deference to the juvenile court’s exercise of its discretion. (Elizabeth M., supra, 158 Cal.App.4th at p. 1558, fn. 3.) However, the record simply offers no factual or evidentiary basis for the reduction in mother’s visitation with D.B. We cannot discern whether this is because there was an oversight in actually getting relevant facts into the record, or because there were no relevant facts. Moreover, DCFS has taken no position on mother’s appeal, nor has any other party, including D.B., whose counsel originally requested the order limiting mother’s visitation.
We therefore must conclude the juvenile court erred in reducing mother’s visits with D.B. based on the attorney-prepared order without any apparent evidentiary basis to do so. We reverse that portion of the June 18, 2008 order.
Mother does not challenge any other portion of the order, thus only the number of visits per week is affected by this opinion.
DISPOSITION
The order reducing mother’s visits with D.B. to once per week is reversed.
We concur: FLIER, Acting P. J., BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.