Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. NJ13876, Blaine K. Bowman, Judge.
IRION, J.
Carmelo G. appeals from an order of the juvenile court made under Welfare and Institutions Code section 362.4, terminating jurisdiction over his daughter, Janet G., and awarding legal and physical custody of the minor to her mother, Maria L., with no visitation to Carmelo. On appeal, Carmelo asserts he was denied reasonable visitation services, which violated his fundamental right to parent his daughter, and resulted in the issuance of the exit order denying him visitation. He also claims that the court abused its discretion in issuing an exit order which denied him visitation because it was not in the minor's best interests. Carmelo's claims are without merit and, accordingly, we affirm.
All references hereafter are to the Welfare and Institutions Code, unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2008 the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of then four-year-old Janet under section 300, subdivision (d). The petition alleged Carmelo sexually abused Janet and Maria did not protect Janet from the abuse. The petition further alleged Janet was exposed to domestic violence in the family home.
According to the detention report, Janet told a social worker that Carmelo took off her pants, touched her vaginal area and rubbed his penis against her vagina. Maria reported that Carmelo acted violently toward her and, in some instances, would yell at her, grab her, throw her on the ground and kick her. The physical violence often took place in front of Janet. Maria obtained a temporary restraining order against Carmelo, but violated that order by allowing Carmelo into the family home.
The court held a detention hearing in February 2008 and detained Janet in out-of-home care. Carmelo attended the hearing, represented by counsel. The court ordered visitation for Carmelo and Maria.
In the jurisdiction and disposition report, the social worker reported that she discussed the dependency allegations with Carmelo, who denied sexually abusing Janet. The social worker met with Carmelo to address visitation. Carmelo stated that he preferred to visit with Janet on weekends. The social worker submitted a request for weekend visits, but weekend appointments were not available. Carmelo stated he would wait for visitation until weekend appointments became available. The social worker recommended a case plan for Carmelo which included referrals to various services, including therapy, domestic violence prevention programs and weekly visitation.
The court held a jurisdiction and disposition hearing in May 2008. Maria was present, as were Carmelo and his counsel. At the hearing, the court declared Janet a dependent child, removed her from her parents' custody, and ordered the parents to participate in services, including supervised visitation. The court also ordered the parents to designate a permanent mailing address which would be used for notice purposes. Changes in the address were to be provided, in writing, to the court and the Agency.
In October 2008 an Agency social worker submitted a six-month review report. According to the report, Carmelo had moved and provided no forwarding address. His whereabouts were unknown. Carmelo's last contact with the Agency was in June 2008, when he complained that no social worker called to give him the time and place for visits. The report stated Carmelo had not participated in services specified in his case plan: he refused to participate in a sexual abuse treatment program, stating it was too far away; and he failed to attend parenting classes or a domestic violence treatment program.
The court held an initial six-month review hearing in October 2008. Carmelo was present and represented by counsel. Carmelo asked for visitation with Janet. The court instructed the Agency to obtain an opinion from Janet's therapist as to whether visitation between Janet and Carmelo would be appropriate, and continued the hearing.
In a November 2008 addendum report prepared for the continued hearing, Janet's therapist reported that Janet did not want to see Carmelo. The therapist recommended professionally supervised visitation for Janet and Carmelo.
Following receipt of the report containing the therapist's recommendation, the court held the continued six-month review hearing. Carmelo did not attend the hearing, but was represented by his counsel. At the conclusion of the hearing, the court found Carmelo had not contacted or visited with Janet for six months, and had not made progress with his case plan. The court terminated services for Carmelo except for supervised visitation. Carmelo did not appeal the order.
During the next 12 months, Carmelo's whereabouts and circumstances remained unknown. The court held a 12-month review hearing on April 28, 2009. Again, Carmelo was not personally present but was represented by his counsel. At the hearing, the court found that Maria had made significant progress with her case plan. Maria was given a 60-day trial visit with Janet.
In August 2009 the Agency submitted its 18-month review report, which recommended that the court terminate its jurisdiction over Janet. In the report, the Agency informed the court that Janet had been in Maria's care since June 2009 and was doing well. Janet's therapist reported the minor indicated she was afraid of Carmelo and did not want to see him. This time, the therapist did not recommend visitation between Janet and Carmelo. At the time of the Agency's report, Carmelo's whereabouts remained unknown.
At the 18-month review hearing, Carmelo appeared with his counsel. Carmelo complained he did not receive notice of the six-month review hearing. He also informed the court that he had not received visits. In response, minor's counsel asserted that proper notice findings had been made at each hearing and, further, that it would be detrimental for Janet to visit with Carmelo because she was afraid of him. Counsel also argued that Carmelo had not participated in services or received treatment addressing the problems that led to Janet's dependency.
After considering the evidence and hearing argument of counsel, the court found that reasonable services had been provided to Carmelo, who had not participated in his service plan, visited Janet or participated in court proceedings. The court awarded legal and physical custody of Janet to Maria, with no visitation to Carmelo. The juvenile court then opened a superior court file for the case, assigned it a family law number and terminated its jurisdiction. The court stated if Carmelo provided proof of his completion of services to the family court, he could request visitation with Janet.
DISCUSSION
I
Substantial Evidence Supports the Court's Finding Reasonable Visitation Services Were Provided to Carmelo
Carmelo argues the Agency failed to provide him with visits during Janet's dependency, violating his fundamental rights to parent his daughter. This, he claims, infected subsequent juvenile dependency proceedings and resulted in the exit order denying him visitation with Janet. We are not persuaded by the argument, as our review of the record clearly establishes that Carmelo was provided adequate visitation services.
Carmelo does not argue he was denied reasonable services, other than visitation.
A. RELEVANT LAW AND STANDARD OF REVIEW
When the court places a dependent child in out-of-home care, the court must order the Agency to provide the parent with services designed to help a family reunify. (§ 361.5, subd. (a).) Reunification services must include visitation. (In re Luke L. (1996) 44 Cal.App.4th 670, 679.) The visitation must be as "frequent as possible, consistent with the well-being of the child." (Ibid.; § 362.1, subd. (a)(1)(A); see § 16501.1, subd. (f)(5)(B).)
The Agency is required to make a good faith effort to address the parents' problems through services, to maintain reasonable contact with the parent during the course of the plan and to make reasonable efforts to assist the parent in areas where compliance proves difficult. (Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, 554-555.) "The... reasonableness of the [Agency's] efforts are judged according to the circumstances of each case." (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) However, the Agency is not required to take parents by the hand and lead them through services. (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.) Reunification services are voluntary; they cannot be forced onto parents who are unwilling or indifferent. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.) Furthermore, because it is almost always true that better services could be provided in an ideal world, we merely determine whether the services provided were reasonable under the circumstances of the case. (In re Julie M. (1999) 69 Cal.App.4th 41, 48; In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
We determine whether substantial evidence supports the trial court's finding that reasonable services, specifically visitation, were provided. We review the evidence in the light most favorable to the prevailing party, indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R., supra,2 Cal.App.4th at p. 545.)
We note that at the 18-month review hearing, the court inquired whether Carmelo was setting the issue of reasonable services for trial. Carmelo declined to do so. Thus, the issue of whether reasonable visitation services were provided is being raised for the first time on appeal-and normally would result in a ruling that the issue is forfeited. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) However, because Carmelo claims the lack of reasonable visitation violated his fundamental right to parent Janet, we exercise our discretion to review the claim.
Substantial evidence supports the court's finding that reasonable visitation services were offered to Carmelo. Here, the court ordered supervised visitation and the Agency made reasonable efforts to provide the services. Following the detention hearing, a social worker met with Carmelo to schedule visits at a visitation center. Carmelo stated he wanted to visit Janet on weekends. The Agency made efforts to accommodate Carmelo's request, but weekend appointments were unavailable. Carmelo did not avail himself of visits with Janet in the meantime.
The Agency made additional efforts to assist Carmelo with visitation following the jurisdiction and disposition hearing. In June 2008 a social worker spoke with Carmelo, who asked to schedule visits. In July a social worker attempted to schedule that visitation by contacting Carmelo at the address he provided pursuant to the court's May 2008 order. The social worker learned Carmelo had moved and had not provided a forwarding address or new contact information. The Agency sent written notification of all subsequent proceedings to Carmelo at the address he had on file. Carmelo's counsel appeared at all hearings. The court made findings at those hearings that proper notice had been provided to the parties.
Under the circumstances, the Agency made reasonable efforts to provide Carmelo with visitation services. A social worker spoke to Carmelo about scheduling visits on at least two occasions, and made continued efforts to contact Carmelo at the address he provided pursuant to the court's order, even after his whereabouts became unknown. This is not a case in which the Agency hindered Carmelo's attempts to visit Janet. Rather, the problem was that Carmelo put himself out of the reach of the Agency and rehabilitative services by making his whereabouts unknown. (See In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220 [services are not inadequate simply because a parent is indifferent or unwilling to participate]; see also In re Christina L. (1992) 3 Cal.App.4th 404, 414 [services are voluntary and cannot be forced on an unwilling parent].) We conclude reasonable visitation services were provided to Carmelo.
Having concluded that reasonable visitation services were provided, we necessarily conclude Carmelo's claim that he was denied his fundamental rights to parent Janet fails.
II
The Court Did Not Abuse Its Discretion by Denying Carmelo Visitation in the Exit Order
Carmelo argues the court abused its discretion when, upon terminating its jurisdiction, it issued an exit order that denied him visitation with Janet. Carmelo claims that the lack of visitation was not in Janet's best interests. We reject the claim.
A. RELEVANT LAW AND STANDARD OF REVIEW
In terminating its jurisdiction, the juvenile court may rule that custody and visitation orders are to be transferred to an existing family court file and remain in effect until modified or terminated. (§ 362.4; In re Chantal S. (1996) 13 Cal.4th 196, 203; In re Roger S. (1992) 4 Cal.App.4th 25, 30.) An order under section 362.4 is commonly referred to as an "exit order." (See In re John W. (1996) 41 Cal.App.4th 961, 970.) Under section 362.4, the court has broad discretion to fashion visitation orders. The court considers "the totality of the child's circumstances when making decisions regarding the child" (In re Chantal S., supra, at p. 201) and is guided by the child's best interests. (In re John W., supra, at p. 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712).
We review the trial court's exit orders for abuse of discretion. (In re Stephanie M. (2004) 7 Cal.4th 295, 318-319.) We will not disturb the court's custody and visitation orders unless the court has exceeded the limits of legal discretion. (Id. at p. 318.)
B. ANALYSIS
Carmelo has not shown the court abused its discretion by denying him visitation in the exit order. The court considered the evidence and, because of Carmelo's lack of participation in services, determined it was not in Janet's best interests to allow visitation between Carmelo and Janet. The record shows Janet had been sexually abused by Carmelo, who made no effort to address the protective issues. Carmelo did not participate in a sexual abuse treatment program or attend parenting education classes. Carmelo never visited Janet and did not contact the Agency or Janet's caregiver to inquire about Janet's well being. In addition, Janet had not seen Carmelo in more than 18 months and expressed fear at the prospect of seeing him again.
Carmelo argues the Agency's report that Janet is afraid of him is false, and the court erred in relying upon it in making its custody findings. Carmelo forfeits his appellate argument as he did not object to the report at trial. (In re Dakota S., supra, 85 Cal.App.4th at p. 502 [a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court].)
In view of the allegations that Carmelo sexually abused Janet, and his failure to participate in rehabilitative services, the order is consistent with Janet's best interests. The court did not abuse its discretion when it denied visitation to Carmelo in the exit order. Should circumstances change in the future, Carmelo has the ability to seek recourse in family court.
DISPOSITION
The order is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.