Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Robert J. Anspach, Judge, Super. Ct. No. JD105694
Paula K. Bauer, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
Wiseman, Acting P.J.
OPINION
Appellant Emma H. (mother) appeals from an order implementing a permanent plan of guardianship over her daughter, Elizabeth W. (Welf. & Inst. Code, § 366.26.) Mother raises two contentions on appeal: (1) the court and respondent Kern County Department of Human Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) requiring remand with directions for the juvenile court to comply with ICWA; and (2) the juvenile court’s visitation order must be reversed because it gives her daughter sole discretion over whether visitation occurs. We affirm.
All subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL HISTORY
Dependency proceedings were initiated in Humboldt County in December 2003 after then eight-year-old Elizabeth was found in a state of severe neglect while in mother’s custody. Mother was offered reunification services, which included mental health counseling. In March 2004, Elizabeth was placed in a foster home with her older half-sister. In July 2004, they were placed with a maternal aunt and uncle in Los Banos.
During the pendency of the proceedings, mother moved to Kern County. Consequently, hearings held in the fall of 2004 resulted in the case being accepted for transfer to Kern County in December 2004. At the February 9, 2005, six-month review hearing, the juvenile court found that ICWA did not apply. The court further found that Elizabeth’s out-of-home placement was appropriate, reunification services would continue, and mother was to receive supervised visits of four hours per month.
At the 12-month review hearing held on April 14, 2005, the court terminated reunification services and ordered Elizabeth, who had been removed from her relatives’ home on April 4, 2005, into long-term foster care. The court also ordered supervised six-hour monthly visits at Elizabeth’s discretion.
Elizabeth’s long-term care placement was reviewed in October 2005 and April 2006. According to the Department, mother and Elizabeth visited weekly throughout the year following her placement in long-term foster care. Elizabeth also adjusted so well in her foster care placement that the Department recommended in its report for the April 2006 review hearing that the court set a section 366.26 hearing to consider awarding legal guardianship to Elizabeth’s foster parents.
At the review hearing on April 14, 2006, the court set the section 366.26 hearing for August 11, 2006. With respect to visitation, the court ordered two-hour weekly supervised visits with mother “at the child’s discretion.” Mother filed a petition for extraordinary writ relief pursuant to California Rules of Court, rule 38, in which she challenged the juvenile court’s visitation order. In an unpublished opinion, we held that, by delegating to Elizabeth discretion to determine whether or not visitation would take place, the juvenile court abused its discretion by impermissibly delegating to the child its power to determine whether visitation would occur. Consequently, we ordered stricken the portion of the visitation order that stated visits with mother were at the child’s discretion. (Emma H. v. Superior Court (July 7, 2006, F050237) [nonpub. opn.].)
At the August 11, 2006, section 366.26 hearing, the court ordered legal guardianship as the permanent plan, which it awarded to Elizabeth’s foster parents. The court terminated dependency jurisdiction but retained jurisdiction over the child pursuant to section 366.4. Testimony was received at the hearing from mother and Elizabeth’s foster mother regarding mother’s visits with Elizabeth and their effect on Elizabeth. The social worker also testified about the two visits mother had received with Elizabeth since we struck the discretionary portion of the visitation order. Elizabeth also stated that she had written a letter, which was entered into evidence, in which she described the traumatic effect of visitation with her mother. In comments made after the close of evidence, Elizabeth’s attorney initially asked the court to grant Elizabeth discretion regarding once-a-month visits with her mother, asserting she had shown that visits with mother were detrimental to Elizabeth, but after reviewing the evidence of detriment, concluded by asking the court “not to order visits and force her to go at this time.”
Addressing the issue of visitation, the court commented that (1) mother had never addressed her mental health issues, which may have been impeding her ability to have meaningful visits with Elizabeth; (2) visits in the past had been troublesome and traumatic; (3) Elizabeth indicated a desire not to be required to visit mother; and (4) Elizabeth’s therapist concluded visits with mother were detrimental. The court then found “it’s in the best interests of this child that she have the discretion of exercising visits and, accordingly, she will have the discretion as to time, manner and mode of visits.” When mother’s counsel asked the court to make a minute order regarding visitation, the court stated it wasn’t “inclined to do that. [¶] The child has discretion as to time of visits, the manner of visits, and the frequency of visits which can be zero.” After a discussion between the court and attorneys about how mother and Elizabeth could set up visits, the Department’s counsel asked the court to clarify whether “the Court is making a finding that the visits would be detrimental for Elizabeth. However, she, if she chooses to visit, … would dictate the time and manner of visit?” The court responded “[t]hat is the order of the Court.” The minute order of the hearing states: “Visits with mother are detrimental to the child. If the child wishes to visit, the child has discretion as to the time, manner and mode of visits.” The court’s formal written order, which was signed by a different judge than the one who presided over the section 366.26 hearing, states that visitation between Elizabeth and mother “is scheduled as follows …: [¶] Visits with the mother are detrimental to the child. If the child wishes to visit the mother, the child has discretion as to the time, manner and mode of visits.”
DISCUSSION
I. ICWA
Mother contends that the court erred when it decided in February 2005 that ICWA did not apply to Elizabeth’s dependency. Social worker reports from Humboldt County state that in March 2004 the Humboldt County Department of Health & Human Services (Humboldt Department) noted that ICWA does or may apply to Elizabeth, as mother had advised she is of Native American ancestry with the Blackfeet Tribe. By April 2004, the tribe had been contacted; it requested the Humboldt Department to provide a family tree that included mother’s parents. In an April 2004 report, the social worker explained that mother’s parents were contacted and both said they have no Native American ancestry or tribal eligibility, but a family tree and letter requesting verification were sent to the Blackfeet Tribe in order to obtain official documentation about Elizabeth’s eligibility for enrollment. There are no ICWA notices in the record, nor is there any documented response from the Blackfeet Tribe. Mother asserts that, because the record lacks this documentation, we should invalidate the juvenile court’s February 9, 2005, findings that ICWA had been complied with and did not apply and remand the matter for ICWA compliance.
Mother, however, never raised these alleged notice defects in the juvenile court. Moreover, the court’s February 2005 finding was part of an appealable order from its six-month review (§ 395; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812), which she did not appeal. The court’s six-month findings and orders have long been final and the time to raise her ICWA compliance issues has passed. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).) In Pedro N., we held that a parent who fails timely to challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. (Pedro N., supra, at p. 185.) As we have explained, when a parent who is represented by counsel previously is aware of the possibility that the ICWA is applicable and the parent does not contest the proceedings by a timely challenge in the appellate court, the parent is foreclosed from later raising the issue on appeal from the order terminating parental rights. (Pedro N., supra, at pp. 189-190.)
The case mother relies on, In re Kahlen W. (1991) 233 Cal.App.3d 1414, does not apply here since it did not deal with waiver of an appellate remedy created by the failure to challenge the court’s apparent earlier decision not to apply ICWA. (See Pedro N., supra, 35 Cal.App.4th at pp. 189-190 [distinguishing Kahlen W. on that basis].) Here, mother, who was represented by counsel throughout these proceedings, was aware that ICWA might apply as early as the detention hearing in her child’s case. By her silence until now, mother has waived her right to complain.
To the extent mother cites other decisions, such as In re Marinna J. (2001) 90 Cal.App.4th 731 and In re Nikki R. (2003) 106 Cal.App.4th 844, which disagreed with our Pedro N. holding on a theory that it is inconsistent with the protections ICWA affords to the interests of Indian tribes, we are not persuaded. We do not foreclose a tribe’s rights under ICWA on account of a parent’s appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185; see also In re Desiree F. (2000) 83 Cal.App.4th 460 [we reversed denial of tribe’s motion to intervene after final order terminating parental rights and invalidated actions dating back to outset of dependency and taken in violation of ICWA].) In so ruling, we held we were addressing only the rights of the parent to a heightened evidentiary standard for removal and termination, not those of the tribe (Pedro N., supra, 35 Cal.App.4th at p. 191), or, for that matter, the rights of the child. As a result, we conclude mother has forfeited her personal right to complain of any ICWA violation.
Mother’s reliance on In re Jonathon S. (2005) 129 Cal.App.4th 334 is also misplaced, as that case merely held that a parent has standing to assert that notice pursuant to ICWA was not given.
II. Visitation
Mother also contends that the juvenile court’s visitation order must be reversed because it gives Elizabeth discretion over whether visitation will occur. We review a visitation order made in a dependency proceeding for abuse of discretion and will not disturb a discretionary decision unless an abuse of discretion clearly is shown. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
We agree that delegating to a child the discretion to determine whether or not visitation will take place is an abuse of discretion, as it constitutes an impermissible delegation of the juvenile court’s power to determine whether visitation occurs. (In re S. H. (2003) 111 Cal.App.4th 310, 317-318.) However, that is not what occurred here. Section 366.26, subdivision (c)(4)(C), provides that when a court orders legal guardianship for a child, “[t]he court shall also make an order for visitation with the parents … unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” Consequently, upon a finding of detriment, the juvenile court is empowered to terminate visitation between a parent and child. Here, the juvenile court specifically found that visits with mother were detrimental to Elizabeth. Although the court did not expressly state it was terminating visitation, from the detriment finding, coupled with Elizabeth’s counsel’s request that visits stop, we conclude that is precisely what the juvenile court ordered.
Since neither party directly addressed in their briefs the issue of whether we could infer from the detriment finding that the juvenile court terminated visitation, pursuant to Government Code section 68081, we requested the parties submit supplemental letter briefs addressing the following issues: (1) whether we could infer that the juvenile court terminated visitation between mother and Elizabeth from the juvenile court’s finding that visits with mother are detrimental to Elizabeth; and (2) assuming we made such an inference, how is mother aggrieved by the portion of the visitation order which states that, if Elizabeth wishes to visit mother, she has discretion as to the time, manner, and mode of visits, particularly in light of the fact mother had not challenged the juvenile court’s detriment finding on appeal. Both mother and the Department submitted letter briefs addressing these issues.
Mother contends that we should not make this inference for several reasons. First, mother argues that the juvenile court did not actually find detriment within the meaning of section 366.26, subdivision (c)(4)(C), because the record does not show that the court weighed or considered the relevant factors to support a detriment finding. Mother asserts that the court’s statements at the hearing regarding visitation, where the court first refused to make a minute order about visitation and later agreed with the Department’s counsel that visitation was detrimental, but granted the child the right to determine the time and manner of visits, are inconsistent. We disagree. The fact that the court initially refused to make a minute order with respect to visitation does not mean that the court ultimately did not terminate visitation. As the record shows, by the conclusion of the hearing, the court had stated that its order included a finding that visitation was detrimental. It is this order that we review, not the court’s reasoning process. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329; see also El Centro Grain Co. v. Bank of Italy, etc. (1932) 123 Cal.App. 564, 567.)
Mother asserts the fact that the juvenile court gave Elizabeth discretion whether to resume visitation “is perhaps the strongest indicator that the court did not, in fact, believe the potential for true detriment existed, and did not, in fact, ‘find’ detriment such that it would justify termination of [mother’s] right to visit her child.” Mother reasons that it would be illogical to find detriment, but then let the child decide when that detriment no longer exists. As we read the court’s order, however, it merely terminated visitation, but left the door open for future visitation to occur when Elizabeth feels she is ready, if ever. Given that the detriment finding was based on mother’s inappropriate comments during visits and the emotional toll those comments took on Elizabeth, the order is entirely logical. There is nothing in the record to suggest that Elizabeth, who was 11 years old at the time of the hearing, is not old enough to determine when she is emotionally and mentally ready to visit her mother.
Mother next points to the juvenile court’s written order, which she contends shows the court did not make a “true detriment” finding or terminate visitation. It is true that, on the written order, which is Judicial Council of California form JV-320 (rev. Jan. 1, 2006), box 13 is checked, which states that Elizabeth’s permanent plan is legal guardianship, and under that, box 13a is checked, which states that visitation between Elizabeth and mother “is scheduled as follows (specify): [¶] Visits with the mother are detrimental to the child. If the child wishes to visit the mother, the child has discretion as to the time, manner and mode of visits, ” and box 13b was left blank, which states that “visitation between the child and (names): [¶] is detrimental to the child’s physical or emotional well-being and is terminated.” Mother asserts that because box 13b was not checked, the juvenile court did not find actual detriment or intend to terminate visitation.
When the record is in conflict, it will be harmonized if possible. Where this is not possible, however, that part of the record will prevail which, because of its origin and nature, is entitled to greater credence. (People v. Smith (1983) 33 Cal.3d 596, 599.) As a result, the outcome depends on the circumstances of each particular case. (Ibid.) Here, as the reporter’s transcript shows, the juvenile court confirmed at the conclusion of the hearing that it was making a finding that visits would be detrimental for Elizabeth. Pursuant to section 366.26, subdivision (c)(4)(C), by making this finding, the court was not required to order visitation. A conclusion that the court did not order visitation is supported by its refusal to specify a visitation schedule. For this reason, the reporter’s transcript supports the conclusion that the court terminated visitation. In our opinion, the written order does not take precedence over the court’s oral order because the written order was not signed by the same judge who made the oral order. For this reason, we conclude that the court’s oral pronouncement, which shows that the court terminated visitation, prevails over the written order.
Finally, mother contends that a “true detriment finding” would be inconsistent with the juvenile court’s finding that termination of mother’s parental rights would be detrimental to Elizabeth. While the court’s written order does make this finding, the reason given for it is that Elizabeth is living with a foster parent who is unable or unwilling to adopt her, but who is willing and capable of providing a stable and permanent home, and removal from the foster parent’s physical custody would be detrimental to Elizabeth’s emotional well-being. Significantly, the court did not find that termination of mother’s parental rights would be detrimental because she had maintained regular visitation and contact with Elizabeth, and Elizabeth would benefit from continuing the relationship. Since the court did not find that termination of mother’s parental rights would be detrimental because of her relationship with Elizabeth, the court’s finding that visitation would be detrimental is entirely consistent with the finding regarding termination of parental rights.
Mother has not challenged the evidentiary basis to support the court’s finding that visitation would be detrimental to Elizabeth. In her supplemental letter brief, she asserts that this is because the visitation order was not clear and she did not understand the order as terminating visitation. Mother argues it would be unfair for us to interpret the order as terminating visitation without giving her the opportunity to contest that interpretation of the order. While the visitation order is not a model of clarity, the court unquestionably made a finding that visitation was detrimental to Elizabeth, which would be unnecessary unless the court was terminating visitation.
Despite the distinct possibility that we would view the visitation order as terminating visitation based on the detriment finding, mother chose not to challenge the finding. She had the opportunity to raise this challenge in her appellate briefs. Her failure to do so does not mean she has been treated unfairly. For this same reason, we deny mother’s request in her supplemental letter brief for an “extension of time to allow her to more carefully research and articulate her position here” in response to our request for additional briefing should we find “either a true detriment finding or an actual termination of visitation rights .…” Although mother filed a four-page supplemental letter brief, she asked for an extension because her attorney had unalterable commitments which began shortly after receiving our request for additional briefing, and she did not want to seek an extension to file the supplemental brief since she had already asked for numerous extensions to file her opening brief. In any event, mother has not shown good cause for an extension since she did not attempt in her appellate briefs to challenge either the visitation order as a termination order or the detriment finding.
Since the court terminated visitation, mother is not aggrieved by the court’s additional statement in the order that if Elizabeth wishes to visit, she has discretion over the time, manner, and mode of visits. As explained earlier, the additional language expresses only the assurance to Elizabeth that if she wants to visit mother, she is free to do so. Given that a legal guardianship was being established and dependency jurisdiction terminated, the additional language is logical and shows that the court was leaving the door open to future visitation.
DISPOSITION
The juvenile court’s visitation order is affirmed.
WE CONCUR: Cornell, J, Hill, J.