Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 0J05002126
Ruvolo, P. J.
I.
Introduction
Appellant E.J. seeks reversal of the termination of her parental rights to three of her children, D., born in 2006, Marcus, born in 2000, and Donta, born in 1992. Appellant also appeals the denial of her Welfare and Institutions Code section 388 petition seeking additional reunification services. With respect to Donta and Marcus, appellant asserts that the juvenile court improperly delegated its discretion over visitation to the Alameda County Social Services Agency (the Agency). Appellant next asserts that the juvenile court erred by terminating her parental rights with respect to D., rather than finding the beneficial parental relationship exception applied. (§ 366.26, subd. (c)(1)(A).) We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
II.
Facts and Procedural History
On September 8, 2005, the Agency filed a dependency petition alleging that D. was a child described by section 300, subdivision (b), when both he and appellant tested positive for methamphetamine at the time of his birth. Appellant admitted using methamphetamine two days before D.’s birth. The dependency petition was sustained in October 2005.
After appellant continued to struggle with her substance abuse issues, dependency petitions were filed on December 19, 2005, on behalf of D.’s older brothers, Donta and Marcus, who were also living with appellant. The section 300, subdivision (b) petition alleged that the minors were at risk due to appellant’s failure to provide adequate food, clothing or shelter. In addition, Donta and Marcus’s school attendance was sporadic and Donta appeared to be withdrawn and depressed.
Appellant did not appear at the combined jurisdictional and dispositional hearing on January 5, 2006, and the juvenile court found the allegations of the dependency petitions to be true and removed the boys from appellant’s custody.
By the time of the six-month review for D., appellant had begun to address her substance abuse issues. On January 10, 2006, she entered Solid Foundation Mandela House Program (Solid Foundation Program), a residential drug treatment program, and was doing very well. Appellant was visiting regularly with D. The court continued reunification services and gave the Agency discretion to place D. with appellant at the Solid Foundation Program.
With regard to Donta and Marcus, at their six-month review hearing held on June 20, 2006, the court continued their respective out-of-home placements with continued reunification services for appellant. Donta and Marcus were doing well in their respective placements, Marcus with his paternal grandmother and Donta with a close family friend.
D. was placed with appellant at the Solid Foundation Program on June 16, 2006. Less than one month later, on or about July 12, 2006, appellant left the program with D., against court orders. D.’s whereabouts were unknown until October 10, 2006, when D. was found abandoned at the home of one of appellant’s friends. D.’s placement was officially changed to foster care on November 20, 2006, and appellant was denied further reunification services with respect to D.
The court terminated reunification services with respect to Donta and Marcus at their 12-month dependency status review hearing on November 28, 2006. The worker for Donta and Marcus had not had any contact with the mother since she went AWOL from the Solid Foundation Program in July 2006. It was reported appellant did not have any visits with the boys from July through November.
The Agency recommended termination of parental rights and adoption for all three minors, who were in separate placements. In its report prepared for the section 366.26 hearing, the Agency indicated that all three minors were adoptable and that all three caregivers were willing to adopt the boys. The court terminated reunification services and set the matter for a section 366.26 selection and implementation hearing with an identified permanent plan of termination of parental right and adoption.
On March 16, 2007, appellant filed a section 388 petition requesting additional reunification services and in-home placement of D. at the Orchid Women’s Recovery Center (Orchid Program), a residential program for women with substance abuse problems. The section 388 petition alleged that appellant had entered the Orchid Program on the day that her reunification services were terminated. It was further alleged that the Orchid Program would welcome D.’s placement with her there. Appellant made no requests as to Donta and Marcus.
A parent can file a section 388 petition seeking relief before the section 366.26 hearing takes place in an attempt to show that circumstances have changed since reunification services were terminated and that it would be in the child’s best interest to reinstate reunification services. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The Agency, joined by D.’s attorney, opposed appellant’s section 388 petition. The Agency reported that given the case history, returning D. to his mother again would present an unacceptable risk to the child.
At the hearing held on May 23, 2007, the court considered both appellant’s section 388 petition and the Agency’s request that appellant’s parental rights be terminated. Appellant testified that drug addiction is “cunning, . . . baffling and . . . powerful,” but that she was serious about her recovery. She asked the court to place D. with her at the Orchid Program. A representative of the Orchid Program testified that appellant had been in the program for six months and described her as a “role model and she’s a leader.” The Orchid Program supported the placement of D. with appellant while she participated in their program.
Upon conclusion of the testimony, the court denied appellant’s section 388 petition and terminated her parental rights as to all three boys. Appellant filed the instant appeal.
III.
Discussion
A. Visitation Orders
Appellant first asserts that the juvenile court improperly delegated its discretion to the Agency regarding whether visitation would occur with respect to Donta and Marcus, resulting in very little visitation throughout the 20 months of this dependency proceeding. Although the record is somewhat vague, it appears that a total of two visits were facilitated between appellant and Marcus, and a total of four or five visits between appellant and Donta.
Appellant concedes that she suffered no prejudice with respect to D. because even if there had been an improper delegation of discretion to the Agency, the visitation order was implemented by granting her an “exceptional amount” of visitation.
Specifically, appellant challenges the visitation orders made at Donta’s and Marcus’s original disposition hearing on January 5, 2006; those made at Donta’s and Marcus’s six-month status review hearing on June 20, 2006; and those made at Donta’s and Marcus’s 12-month permanency hearing on November 28, 2006. The challenged orders are as follows:
1) The first visitation order was issued on January 5, 2006, and reads: “The Agency is ordered to arrange visitation between the children and the [x] mother as frequently as possible consistent with the children’s well-being.” The court added: “The Agency is ordered to arrange for visitation between the children and the mother.” This order was continued on June 20, 2006.
2) The next order was issued on November 28, 2006, and reads: “Visitation shall be as follows: [x] Between the child(ren) and the [x] mother . . ., as frequently as possible consistent with the child(ren)’s well-being and at the discretion of the CWW.”
Appellant asserts that these visitation orders improperly delegated judicial authority to the Agency to determine whether visitation would occur “rendering its order illusory, and contrary to the separation of powers doctrine.” Preliminarily, we note that appellant was present at most of the hearings, and she never complained about any of the visitation orders. Nor did she timely appeal any of the visitation orders and the time for doing so has long since passed. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331 [appeal from most recent orders in dependency matter may not challenge prior orders for which statutory time for filing appeal has passed].) Further, the lack of visitation could have been, but was not, challenged in a writ petition under California Rules of Court, former rule 39.1B. When a parent fails to petition for extraordinary writ relief to challenge orders issued at the time at which the juvenile court sets a permanency planning hearing date, he or she has waived any right to appeal those rulings at a later time. Enforcing this rule does not infringe on the parent’s due process rights. (See In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-1155; Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1403-1404 [time requirements are mandatory].) The court’s visitation orders are now final and not subject to our review in this appeal. (See In re Daniel K. (1998) 61 Cal.App.4th 661, 667.)
Even though appellant refrained from challenging the visitation orders until after her parental rights were terminated, she contends the issues she seeks to raise are still ripe for appellate review. Appellant argues that ongoing visitation was 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 that termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child” and the child would benefit from continuing the relationship. (Ibid.) Appellant points out that if visitation is improperly denied, it is a foregone conclusion that the parent will not be able to establish the exception. Consequently, she argues that “[t]his is the earliest opportunity which [appellant] could appeal the wrongful denial of the beneficial parental relationship exception.”
To allow appellant to raise the visitation issue by arguing that the termination hearing was tainted by the earlier unchallenged orders would circumvent the requirement that she seek review of the orders at an earlier time by appeal or extraordinary writ. By her silence and acquiescence, appellant has waived her right to claim error on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
In any event, appellant’s challenge to the visitation orders as implemented lacks merit. “A court may not delegate its discretion to determine whether any visitation will occur, but it may delegate decisions such as the time, place and manner of visitation.” (In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164.) “As stated in [In re] Jennifer G. [(1990) 221 Cal.App.3d 752], the ministerial tasks of overseeing visitation as defined by the juvenile court ‘can, and should, be delegated to the entity best able to perform them, here the department of social services.’ [Citation.] ‘Such matters as time, place and manner of visitation do not affect the defined right of a parent to see his or her child and thus do not infringe upon the judicial function.’ [Citation.]” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374 (Moriah T.).) “[T]he frequency and length of visits are simply aspects of the time, place and manner of visitation. Accordingly, the juvenile court may grant to the county agency the discretion to determine the frequency and length of visitation ordered by the court.” (Id. at pp. 1376-1377.)
We acknowledge there is some disagreement among the courts as to how many administrative details can be properly delegated to the Agency. The court in Moriah T., supra, 23 Cal.App.4th at pages 1371 and 1376, disagreed with In re Jennifer G. that a court order must specify the frequency and length of visits. According to the court in Moriah T., “[v]isitation arrangements demand flexibility to maintain and improve the ties between a parent or guardian and child while, at the same time, protect the child’s well-being.” (Id. at p. 1376.) We agree with Moriah T. that determining the frequency and length of visitation falls within the duties that may be properly delegated to the social services agency as part of the agency’s discretion to manage visitation.
In this case, the juvenile court neither abdicated its judicial function nor vested the Agency with absolute discretion as to whether visitation would occur. To the contrary, the court properly exercised its discretion and ordered visitation. In addition,it delegated “the responsibility of managing the ministerial details of visitation” to the Agency. (Moriah T., supra, 23 Cal.App.4th at p. 1375.) Such an order is well within the court’s discretion and is not an abdication of its judicial function. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 [juvenile court may delegate discretion to agency to determine time, place, manner and frequency of visits; “[o]nly when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine. . . .” (Italics added.)].)
B. Termination of Parental Rights and Denial of Section 388 Petition
In seeking to preserve her parental rights, appellant claims the record reveals that she and D. had “continuous and extensive contact” and had a beneficial parent-child relationship. As such, she claims the juvenile court erred in not applying the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights. Under section 366.26, subdivision (c)(1)(A), adoption may not be an appropriate permanent plan if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) “[E]mploying the same facts in support of the beneficial parent-child relationship,” appellant claims “the lower court erred in denying additional services to [appellant] under section 388.”
The juvenile court determines whether a parent has established the section 366.26, subdivision (c)(1)(A) exception by balancing “the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord, In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, the juvenile court concluded that appellant did not meet her burden of establishing the exception set forth in section 366.26, subdivision (c)(1)(A). Though the court applauded appellant’s recent effort at rehabilitation, the juvenile court found that appellant did not present sufficient evidence to convince the court that continuing the parent/child relationship was so beneficial that it outweighed the benefit to D. from a permanent home with an adoptive family. The juvenile court denied appellant’s section 388 petition and terminated appellant’s parental rights and ordered D. placed for adoption. We will not disturb the juvenile court’s ruling unless there is a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
There is no question that appellant maintained regular visitation and contact with D. Even at the time of the section 366.26 hearing, appellant continued to have weekly supervised visits with D., and it was reported she was attentive to his needs and played with him in an age appropriate way. In view of this evidence of regular visitation and contact, the question becomes whether appellant has shown that continuing the parent-child relationship would promote the D.’s well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with a new, adoptive family. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827 (Derek W.).)
“That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
The case of Derek W., supra, 73 Cal.App.4th 823, is illustrative. There, the father argued that there would be benefit from continuing his relationship with his son, but the court upheld the selection of adoption as the permanent plan. It said: “The parent has the burden to show that the statutory exception applies. [Citation.] To do so here, David W. had to show that his relationship with Derek ‘promotes the well-being of the child to such a degree as to out-weigh the well-being the child would gain in a permanent home with new, adoptive parents. . . .’ [Citation.] [¶] The parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]” (Id. at pp. 826-827.) The court went on to hold that the father had not sustained his burden of proof, in part because Derek had lived in his foster home since he was nine days old. As pertinent here, the court observed that “[w]hile the relationship between David W. and Derek is pleasant and emotionally significant to Derek, it bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship.” (Id. at p. 827.)
The same type of failure of proof is present here. It is important to note that, like the child in Derek W., D. was taken from appellant shortly after his birth. Not only did appellant give birth to a baby who was exposed to methamphetamine in utero; but also, as a result of her own addiction, she was wholly incapable of caring for him. Later, when appellant had a short, successful stint at recovery, she was given an opportunity to reunify with D. However, after D. was placed in her custody, she absconded with him and their whereabouts were unknown for approximately four months. She eventually abandoned him with a friend. Thus, the juvenile court record amply demonstrated that in his short life, D. had endured a chaotic childhood with a cycle of removal, reunification and return to foster care. A continuation of that cycle would undoubtedly cause him further damage. At the time of the termination hearing, appellant had shown a laudable effort at staying drug free in a residential treatment program for six months. However, as the history of this case shows, appellant had participated in a number of substance abuse treatment programs over the years, but she had never been able to sustain living drug-free outside of a custodial environment. The fact that appellant had already lost custody of a total of five children evidenced her inability to conquer her addiction.
Besides the three children who are the subject of these dependency proceedings, appellant also has another boy, Deshawn C., born in 1994, and a girl, J.C., born in 1988. Deshawn was removed concurrently with Marcus and Donta but was placed with his father and no dependency was initiated. J. was not residing with appellant and no dependency was initiated on her behalf.
In conclusion, the juvenile court did not abuse its discretion in concluding D.’s interest in obtaining a stable and secure adoptive home outweighed appellant’s post-reunification interest in maintaining her parental ties. “A petition which alleges merely changing circumstances 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. [Citation.]” (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
IV.
Disposition
The order denying appellant’s section 388 petition and the order terminating parental rights are affirmed. Our decision is final immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: Reardon, J., Sepulveda, J.