Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County. Super. Ct. No. 27365, Frank Dougherty, Judge.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J. and Gomes, J.
INTRODUCTION
Juanita C. appeals from orders of the juvenile court placing her two older children in long term foster care and terminating her parental rights as to two younger children pursuant to Welfare and Institutions Code section 366.26. Juanita C. contends the juvenile court erroneously terminated visitation of her two oldest children. Respondent concedes error. We will remand the matter for a hearing on the issue of visitation for the two older children, J. G. and O. W. T.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEEDINGS
When Juanita C. gave birth to her fourth child, O. R. T., both mother and child tested positive for cocaine. A petition was filed on September 27, 2005 by the Merced County Human Services Agency (Agency), alleging that all four children came within the provisions of section 300, subdivision (b). On September 28, 2005, the court found the Agency made a prima facie showing that the minors came within the provisions of dependency law. At the November 2, 2005 jurisdiction hearing, Juanita C. waived her right to a full hearing and submitted the matter on the social worker’s report. The juvenile court found the petition true.
At the December 1, 2005 disposition hearing, the juvenile court declared the minors dependent children and placed them in the care of the Agency for suitable placement. The court ordered reunification services for Juanita C. and supervised visitation with the children at least once a month.
In a status review report filed in late May 2006, the social worker reported that Juanita C. failed to comply with a referral for outpatient drug services and was in partial compliance with drug testing. Between December 2005 and May 2006, Juanita C. had four visits with her children. The children were excited to see their mother. O. W. T. screamed “mommy” several times as the visit ended. On most of these visits, Juanita visited the children with her mother and other relatives. Juanita C. showed concern for the two older children’s hair and skin. On January 13, 2006, Juanita C. was again concerned about her children’s hair. On February 3, 2006, Juanita C. did not show up for a visit. Juanita C.’s mother did attend the visit. The children were happy to see their grandmother and exchanged hugs and kisses with her.
Juanita C. visited her children on February 24, 2006. The social worker noted Juanita C. is proud of her children and loves them, but was not sure how to take care of them. J. G. was very loud and difficult to control. J. G. told his mother he was going home with her. Juanita C. left the children without incident. Juanita failed to show up for visits on March 10, 2006 and April 14, 2006, but her mother and other relatives attended.
Juanita C. visited her children on May 12, 2006 along with her mother and other relatives. J. G. and O. W. T. were very exited to see their mother. Juanita C. did well taking turns to play with each boy. During an interview with the social worker, Juanita C. stated that she wanted the children placed with her mother. When Juanita C. asked how matters looked for her, the social worker said the Agency was going to recommend she not get her kids. Juanita C. cried and asked that “court” be prolonged. Juanita C. told the social worker she would do anything to get her children back. At the conclusion of the May 2006 status review report, the Agency recommended that reunification services to Juanita C. be terminated. The Agency still recommended monthly visitation between Juanita C. and her children.
The juvenile court conducted the six-month review hearing on July 18, 2006. Juanita C. wanted to reunify with her children, but admitted at the hearing that the last time she used a controlled substance was two weeks prior to the hearing. The court found return of the children to Juanita C. would create substantial risk to the children, reasonable services had been provided, and Juanita failed to participate in her treatment plan or to make substantial progress. The court terminated reunification services and set the case for a section 366.26 hearing.
The report prepared by the social worker for the section 366.26 hearing was filed on November 17, 2006 and noted that Juanita C. attended six visitations with her children out of a possible 12 visits. The July 21, 2006 visit had gone well. Juanita C. acted appropriately with the children and interacted well with them. Juanita C. had another good visit with the children on August 28, 2006. Everyone was happy to see one another. Juanita C. failed to attend visits on September 21, 2006 and October 18, 2006, though her mother attended with other relatives.
J. G. told the social worker that he prays every night that his brothers are safe. J. G. was angry that he was not going back home and that he has not been able to see his family very often. O. W. T. said he wanted to live with his brothers and referred to his foster family as his parents.
The caretakers were not prepared at the time of the section 366.26 hearing to adopt J. G. or O. W. T. The social worker noted that J. G. has shown signs of aggression, sexualized behavior toward his brother, and could be manipulative. O. W. T. was diagnosed with PTSD and ADHD and was taking medication for these disorders. He often screamed, used foul language, and demonstrated sexualized behavior but these had decreased with the introduction of medications. The social worker concluded neither boy was adoptable due to their behavioral problems.
The prospective adoptive parent for the two younger children indicated she would ensure all four siblings had an opportunity to remain connected with one another. The social worker thought it was particularly important for J. G. and O. W. T. to remain in contact because they still were emotionally close. The social worker recommended long-term foster care for the two older children. At the end of the social worker’s report, the social worker set forth several proposed orders to be adopted by the court which included that visitation be terminated between the minors, their parents, and their grandparents.
The juvenile court conducted contested section 388 hearing and section 366.26 hearings on November 30, 2006. The section 388 petition alleged Juanita C. had entered into a drug treatment program on November 14, 2006 and that the children would benefit from a continued relationship with her. Juanita C. testified that she wanted to get her children back. She acknowledged that she violated a rule at the treatment facility and had to leave the program for a month. Juanita C. had housing with three bedrooms and could feed, clothe, and get her children to school. Juanita C. initially testified it had been three months since she tested positive for using cocaine. On cross-examination, she admitted a fifth child born on October 9, 2006, was removed from her care because he tested positive at birth for cocaine.
The juvenile court found no change of circumstances and denied the section 388 petition. Juanita C.’s counsel explained that rather than waive his client’s rights, he would ask the court to consider Juanita C.’s testimony from the section 388 petition as far as it was relevant to the section 366.26 hearing. The court noted it read and considered the section 366.26 report as well as Juanita C.’s testimony. The court terminated Juanita C.’s parental rights as to the two younger children and placed J. G. and O. W. T. in long-term foster care.
The court did not make a ruling during the hearing concerning visitation of J. G. and O. W. T. In written orders later executed by the juvenile court, visitation by Juanita C. and her mother was terminated as being detrimental to the children’s physical or emotional well-being.
DISCUSSION
Appellant contends the juvenile court abused its discretion in terminating her visitation with J. G. and O. W. T. and she did not waive or forfeit the issue. Appellant further argues there was insufficient evidence that visits between her and her older sons were detrimental. Respondent concedes the record contains no evidence that the issue of visitation was addressed at the hearing and requests we remand the matter for a hearing. We find there was insufficient evidence in the record to support the Agency’s recommendation that further visitation between appellant, J. G. and O. W. T. was detrimental to either child’s physical or emotional well-being.
Section 366.26, subdivision (c)(4)(C) states that: “The court shall also make an order for visitation with the parents or guardians 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.” On review of sufficiency of the evidence, we presume in favor of the court’s order, considering the evidence in the light most favorable to the prevailing party. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.) The focus of dependency law is on the child’s well-being. Appellate courts do not fault the juvenile court for determining that forced contact between a parent and child may harm the child. (In re Mark L. (2001) 94 Cal.App.4th 573, 581 (Mark L.)
Visitation between a dependent child and his or her parents is an essential component of a reunification plan even if physical custody is not the outcome of the proceedings. It is ordinarily improper to deny visitation absent a showing of detriment. (Mark L., supra, 94 Cal.App.4th at p. 580; In re Luke L. (1996) 44 Cal.App.4th 670, 679; In re David D. (1994) 28 Cal.App.4th 941, 954; also see In re S. B. (2004) 32 Cal.4th 1287, 1294-1296.)
The social worker’s reports, including the report for the section 366.26 hearing, do not indicate that appellant’s visits with J. G. and O. W. T. were detrimental to either child. Appellant had a good relationship with both children and when she visited, they were often unhappy to see her leave. Appellant acted appropriately during the visits and was attentive toward the children. J. G. was disappointed when his mother failed to visit.
It is possible that J. G.’s continued disappointment when appellant failed to visit was detrimental, but this point was not developed in the social worker’s report or during the section 366.26 hearing. We are, therefore, unwilling to draw any inference from this one fact where there is virtually no other evidence in the record establishing that appellant’s visits with J. G. and O. W. T. were detrimental to either child. Respondent’s concession of error in this regard is also important.
There is no direct evidence in the reports of the social workers to support the social worker’s recommendation in the section 366.26 report that the juvenile court terminate appellant’s visitation of J. G. and O. W. T. The issue of visitation was not addressed during the section 366.26 hearing nor was any substantial evidence submitted on this point.
DISPOSITION
The case is remanded for the juvenile court to conduct a hearing to determine whether to terminate the visitation of J. G. and O. W. T. by appellant and appellant’s mother. The orders of the juvenile court and its judgment are otherwise affirmed.