Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. HJ-06-003194, HJ-06-003235, HJ-06-003236
Marchiano, P.J.
R.S. (Mother) appeals orders entered by the Alameda County Superior Court, Juvenile Division, on December 4, 2008. At that time, the juvenile court concluded a hearing held pursuant to Welfare and Institutions Code, section 366.26, and selected a permanent plan of legal guardianship for the three minors in these proceedings—E.S. (a girl, born December 1992), J.S. (a boy, born December 1996), and B.S. (a girl, born September 1998). Mother challenges the visitation portion of the orders. As discussed below, we conclude the juvenile court did not abuse its discretion and affirm the orders as modified.
Further statutory references are to the Welfare and Institutions Code.
Background
Alameda County Social Services Agency (Agency) initiated these proceedings on February 15, 2006, when it filed a petition to establish dependency jurisdiction over Mother’s oldest child, E.S. The petition set out allegations under section 300, subdivision (b) to the effect that Mother had a substance abuse problem that “periodically” precluded her from providing adequate parenting and supervision. It further alleged sexual abuse under section 300, subdivision (d)—specifically, that thirteen-year-old E.S. had “engaged in sexual acts” with an older male neighbor, and Mother knew of the relationship, but failed to take appropriate steps to stop it. The Agency took E.S. briefly into emergency protective custody, but she was returned to Mother’s custody by the time of an Agency report completed in late March 2006. At this time, Mother lived in the home of the minors’ maternal grandmother, P.S. (Grandmother). The minors had lived in this home since birth.
At the jurisdictional/dispositional hearing held on April 27, 2006, the juvenile court sustained only the allegation of sexual abuse under section 300, subdivision (d). The court directed that E.S. remain in Mother’s custody and ordered Mother to engage in a family maintenance plan that included testing and treatment for substance abuse.
The juvenile court continued family maintenance services at status review hearings held in October 2006 and March 2007. The Agency reports submitted at these hearings noted Mother was in “partial” compliance with this plan, but had not thus far engaged in substance abuse treatment, testing, or individual therapy.
On May 2, the Agency filed a supplemental petition as to E.S., pursuant to section 387. This petition stated E.S. had been taken into protective custody following an incident of domestic violence by Mother against Grandmother, and that Mother, who was not engaging in substance abuse treatment or testing as required by the family maintenance plan, was currently using drugs and unable to care for E.S. Two days later, the Agency filed a petition seeking to establish dependency jurisdiction over E.S.’s younger half-siblings, J.S. and B.S., pursuant to section 300, subdivisions (g) and (j). The allegations included averments that the two younger minors had been exposed to domestic violence by Mother against E.S. and Grandmother, that B.S. grew “scared” of Mother when she was under the influence, and that both B.S. and J.S. preferred to live with Grandmother due to Mother’s “anger and substance abuse issues.”
At the time of its initial petition on behalf of E.S., in February 2006, the Agency had previously sought to establish dependency jurisdiction over J. S. and B.S. under section 300, subdivision (b). The juvenile court, however, dismissed this petition at the conclusion of the jurisdictional hearing in April 2006.
In issuing detention orders in response to these new petitions, the juvenile court ordered Mother to stay away from the minors and Grandmother’s residence. Some two weeks later, on May 16, 2007, the court signed and filed a temporary restraining order to the same effect. Two days later, the court issued a permanent restraining order (RO). This three-year order, set to expire on May 18, 2010, again directed Mother to stay away from the minors and Grandmother, and to stay away from the Grandmother’s home. The RO further directed Mother not to contact the minors or Grandmother “except for brief and peaceful contact as required for court-ordered visitation of children.” An attached visitation schedule directed the Agency’s assigned case worker (case worker) “to begin and arrange supervised visits between [Mother] and her children.”
At the jurisdictional/dispositional hearing on the new petitions, held June 19, 2007, the juvenile court sustained the jurisdictional allegations of both petitions, continued the minors in an out-of-custody placement with Grandmother, and directed Mother to engage in reunification services pursuant to the case plan adopted on that date. The dispositional orders also directed that “[v]isits shall be supervised between the minor[s] and [M]other at the Agency.”
The case worker, in a report prepared for the six-month status review hearing, noted Mother was presently homeless and had no income, and had not “made her whereabouts known until just recently.” It appears that for this reason supervised visits at the Agency had not occurred, although the case worker stated that, notwithstanding the RO, Grandmother had permitted Mother to have several visits with the minors “on the front porch” of her home. The minors reported having seen Mother on one occasion at a store where “they knew [Mother] hangs out.” At the conclusion of the six-month hearing, on November 27, 2007, the juvenile court terminated reunification services as to the minors’ fathers, but continued Mother’s services. The court also found Mother’s progress with reunification had been “none.”
In the report prepared for the 12-month permanency hearing, the case worker’s statements concerning Mother were similar. Mother continued to be homeless and unemployed, continued not to maintain contact with the case worker, and continued to be noncompliant with her case plan. Again, there were no reports of supervised visitation taking place at the Agency, although the reports continued concerning unauthorized contact between Mother and the minors in violation of the RO. The juvenile court concluded the 12-month hearing on August 4, 2008, and at that time terminated Mother’s reunification services and set the matter for a hearing under section 366.26. By this time, Grandmother had sought and obtained de facto parent status as to the minors.
In an interim report completed in September 2008, the case worker reported that Mother’s whereabouts were unknown. In a subsequent report prepared for the hearing under section 366.26, the case worker recommended that the juvenile court adopt a permanent plan of legal guardianship, with Grandmother as the minors’ guardian. She additionally recommended the court order no visitation between Mother and the minors, “because such visitation would be detrimental to the physical or emotional well-being of the [minors] and [Mother] currently has a Stay Away order that will be in effect until 5/18/2010.”
At the section 366.26 hearing held December 4, 2008, counsel for Grandmother requested that the court modify the Agency’s proposed visitation orders so as to permit “reasonable” visitation to occur between Mother and the minors. The court, after commenting that it was “not so sure” the evidence in the Agency’s report would support a finding that visitation with Mother would be detrimental to the minors’ well being, indicated it was “going to change somewhat” the proposed visitation order. At the conclusion of the hearing, the court determined that termination of parental rights would be detrimental, adopted legal guardianship as the minors’ permanent plan, and appointed Grandmother legal guardian. With respect to visitation, the court directed that “[v]isitation between [Mother] and the children shall be supervised by the Agency and visits will commence once [Mother] contacts the Agency to request visits and the Agency will have the discretion to set up those supervised visits on the condition that it’s in the best interest of the children to have said supervised visits.”
Mother’s appeal followed. (§ 395.)
Discussion
Mother contends the juvenile court abused its discretion when it made the visitation orders as to her. In her view, because the order does not specify “when... visits would begin,” nor their frequency or duration, the court impermissibly delegated to the Agency the discretion to determine whether any visits would occur. Mother reasons a valid visitation order must “ensure at least some minimal amount of visitation.”
Mother’s trial counsel raised no objection to the visitation order at the time of the section 366.26 hearing. Ordinarily a reviewing court will not consider a challenge to a ruling if an objection could have been made, but was not made, in the juvenile court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Our discretion to excuse Mother’s forfeiture in this instance is one we “exercise[] rarely and only in cases presenting an important legal issue.” (Ibid.) We cannot say that a juvenile court’s exercise of discretion in making a particular visitation order under well established principles constitutes an issue that would justify our own exercise of discretion to excuse Mother’s forfeiture.
In her reply brief Mother urges there was no forfeiture because Grandmother’s counsel raised, and hence the juvenile court considered, “the issue of visitation.” As noted above, however, Grandmother’s counsel objected to the Agency’s proposed order denying visitation, and did not object to the sufficiency of the visitation order the court ultimately issued.
In any event, the visitation orders are valid to the extent it directs the Agency to supervise visitation and states that visitation will commence once Mother contacts the Agency. Mother is still subject to the RO that permits only supervised visitation. At the time of the section 366.26 hearing, Mother had a history of not maintaining contact with the case worker, and her current whereabouts were unknown. Under such circumstances, the Agency could not reasonably be expected to commence visitation until Mother reestablished contact.
The visitation orders are also valid notwithstanding their failure to specify the frequency or duration of visits. Most courts that have considered the issue have concluded that a visitation order need not make such specifications. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 (Christopher H.).)
Finally, the visitation orders are valid to the extent they give the Agency discretion to determine the time, place, and manner of visits. (Christopher H., supra, 50 Cal.App.4th at p. 1009.) The juvenile court in this instance had a statutory duty to make an order for visitation between Mother and the minors in the absence of a finding that visitation would be detrimental to the physical or emotional well being of the minors. (§ 366.26, subd. (c)(4)(C); see also In re M.R. (2005) 132 Cal.App.4th 269, 273-274.) In such a case, the court violated that duty only if it delegated its discretion to determine whether any visitation would occur. (Christopher H., supra, 50 Cal.App.4th at pp. 1008-1009.) We will modify the challenged visitation orders to eliminate any possibility that they might be construed to delegate such discretion to the Agency.
Disposition
Language in the orders of December 4, 2008, in case numbers HJ-06-003194, HJ-06-003235, HJ-06-003236, to the effect that “The Agency has discretion to set up supervised visits between the minor and [Mother] on the condition[] that it is in the best interest of the minor,” is hereby stricken. As so modified, the orders are affirmed.
We concur: Dondero, J., Banke, J.