Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ-08009086
Bruiniers, J.
Appellant father appeals a juvenile court order that suspended visitation with his dependent son during a reunification period subject to a petition showing cause why visitation should be resumed. We addressed most of the substantive issues raised in this appeal in response to the father’s prior writ petition, which we denied. We likewise find no error here and affirm.
I. Background
The relevant factual background is set forth in our opinion on the writ petition (Kenneth R. v. Superior Court (Sept. 18, 2009, A125415) [nonpub. opn.]) and will be repeated here only in abbreviated form.
On February 11, 2008, M.A.F. (Mother) and Kenneth R. (Appellant) were arrested after they fought and injured each other on a Caltrain train in front of their two-year-old son (J.G.). On February 14, the Alameda County Social Services Agency (Agency) filed a juvenile dependency petition (Welf. & Inst. Code, § 300 et seq.), and on February 15, J.G. was detained. At an April 3 hearing, the court sustained the petition, denied reunification services to Mother, and conditioned services for Appellant on a positive paternity test. On July 24, the court declared Appellant the presumed father of J.G. and granted him reunification services. (§ 361.5, subd. (a).)
All further code references are to the Welfare and Institutions Code unless otherwise indicated.
Appellant reported he was released from jail on February 22, 2008, surrendered to custody again on March 22, and was finally released on April 29. He visited J.G. about two weeks after his April release and as of July 24 had visited him three or four more times. Temporary foster parent S.R. told the Agency that between June and November, “[Appellant] would promise [J.G.] that he was coming to visit him on a certain day but would not follow through, leaving [J.G.] upset.” J.G.’s foster parent and his mental health clinician also reported that J.G. showed significant emotional distress that was “triggered” by his parents’ inconsistent visits, false promises of visits, and calls after long periods of absence.
S.R. is J.G.’s paternal aunt and Appellant’s sister.
The Agency arranged regular weekly visitation between Appellant and J.G. beginning December 4, 2008. After Appellant missed the first scheduled visit, the assigned child welfare worker informed him that he needed to contact the visitation supervisor by 11:00 a.m. on the day of a scheduled visit to confirm that he would attend, so as to avoid distress to J.G. when Appellant did not show up. Appellant continued to miss visits throughout December. At a January 14, 2009 hearing, the court ordered, “Right now the father has a right to visit the child. If he fails to visit the child and that creates distress for the child and detriment to this child’s emotional state, then the social worker is ordered to protect this child by barring visitation.” The court granted Appellant three more months of services.
In a status review report filed on March 16, 2009, the Agency reported that at Appellant’s last visit with J.G., on January 8, “there was very little interaction” between him and the child, and J.G. seemed agitated after the visit. Moreover, J.G. had regressed emotionally and behaviorally since January. The social worker warned Appellant in writing that visitation would be terminated if he missed two more visits. On February 10, the social worker terminated visitation after Appellant had missed four consecutive visits, including three subsequent to her warning letter. In an April 1 addendum report, the Agency recommended that Appellant’s visitation “remain suspended.” Attached was a letter from J.G.’s clinician, which stated that J.G.’s witnessing of the domestic violence between his parents, “compounded by multiple missed parental visits and multiple placements” had produced symptoms the clinician had witnessed, including “pulling his hair continuously (indicative of anxiety), difficulty tolerating frustration, repetitive isolated play, difficulty separating at the end of visits, depressed mood, dissociate episodes of staring into space, and defiant behaviors....”
At an April 28, 2009 hearing on visitation, the court found that “visitation will be extremely dangerous to this child. [¶]... [¶] He has reacted in a disturbing disorder during those visits.” The court ordered, “Visitation with respect to the father will be suspended until the social worker decides that visitation would be in the child’s best interest, at which time he can request that the social worker return to this Court so that the Court can address and reinstate appropriate visitation by the father.” Appellant appeals from this order.
On June 9, 2009, the court terminated Appellant’s reunification services and set a section 366.26 hearing for September 29. Appellant sought writ relief from the July 9 order, asking this court to vacate the section 366.26 hearing and to order visitation with J.G. On September 18, we filed an unpublished opinion denying the petition. (Kenneth R. v. Superior Court, supra, A125415.)
II. Discussion
Appellant argues the April 28, 2009 order (1) improperly delegated control over visitation to the Agency, and (2) improperly denied visitation without finding that it would jeopardize J.G.’s physical safety.
As we indicated in our opinion on the writ petition, this appeal is limited to a challenge to the April 28, 2009 order. (Kenneth R. v. Superior Court, supra, A125415.) Appellant wrote in his June 12, 2009 notice of appeal that he was appealing from the following “findings and orders of the court”: “Previous to 4/28/2009 the social welfare agency stopped visits between father and son (minor [J.G.])[.] [O]n 4/28/2009 appellant contested this. Court had granted visitation discretion to agency on 10/02/08.” Appellant’s reference to an October 2, 2008 order presumably was intended as a reference to the January 14, 2009 visitation order. However, the time to appeal the January 14, 2009 order expired in March 2009. (§ 395, subd. (a)(1); Cal. Rules of Court, rule 8.400(d).) Thus, the appeal is untimely as to that order and we will not address Appellant’s challenges to the January 14 and prior visitation orders.
Although we did not directly review the April 28, 2009 order in our opinion denying Appellant’s writ petition, we determined that the June 9 order incorporated the April 28 visitation order and found there was no improper delegation of discretion over visitation. (Kenneth R. v. Superior Court, supra, A125415.) “At the April 28 hearing, the court ruled: ‘Visitation with respect to the father will be suspended until the social worker decides that visitation would be in the child’s best interest, at which time he can request that the social worker return to this Court so that the Court can address and reinstate appropriate visitation by the father.’ (Italics added.) In other words, the court did not delegate to the Agency the discretion of when and whether to resume visits between [Appellant] and J.G., but merely instructed the Agency to return to court (via a section 388 modification petition based on changed circumstances) if it determined resumption of visitation was consistent with J.G.’s well-being. Although the court did not expressly state that [Appellant] could file a similar petition, the statute itself authorized [Appellant] to do so. (§ 388, subd. (a).)” (Ibid.) We stand by this analysis.
Appellant now makes the additional argument that the April 28, 2009 order violated a dependency statute that permits a juvenile court to deny visitation only if it finds visitation would threaten the child’s physical safety. He relies on In re C.C., which holds that “Under section 362.1, subdivision (a),... visitation with the parent is a mandatory element of the reunification plan with the single exception that ‘[n]o visitation order shall jeopardize the safety of the child.’ (§ 362.1, subd. (a)(1)(B); [citation].) In other words, when reunification services have been ordered and are still being provided, as they were in this case, some visitation is mandatory unless the court specifically finds any visitation with the parent would pose a threat to the child’s safety. The frequency of such visits, in contrast, depends on a broader assessment by the court of the child’s ‘well-being.’ (§ 362.1, subd. (a)(1)(A); but see In re Christopher H. [(1996)] 50 Cal.App.4th [1001,] 1008 [court may deny parent visitation ‘if visitation would be harmful to the child’s emotional well-being’].)” (In re C.C. (2009) 172 Cal.App.4th 1481, 1491, fn. & italics omitted, first & last instances of bracketed material in original.)
In re C.C. is distinguishable because there the parent seeking visitation fully cooperated with the agency and visitation was suspended because of the child’s strenuous opposition to seeing his mother. (In re C.C., supra, 172 Cal.App.4th at pp. 1484–1487.) The juvenile court found “further visitation... would be detrimental to C.C.” but did not expressly find that visitation would jeopardize his physical safety. (Id. at pp. 1487, 1492.)
Here, the court ordered and the Agency arranged for visitation for months during the reunification period, and visitation was suspended because of Appellant’s own noncompliance. As we explained in our opinion denying Appellant’s writ petition: “[T]he Agency made reasonable efforts to facilitate visitation between [Appellant] and J.G. even after [Appellant’s] egregious inconsistency in visiting caused J.G. significant and documented emotional distress. Within two weeks of [Appellant’s] release from jail on April 29, 2008, the Agency arranged for [Appellant] to visit J.G. at S.R.’s home. Thereafter, [Appellant] visited J.G. at S.R.’s house by arrangement directly with S.R. He visited J.G. only three or four other times for about three or four hours each time between June and September. [Appellant’s] case plan, which was signed in October, also provided for regular visitation. [Appellant] visited J.G. once at S.R.’s house and once at another location in November, and regular weekly visitation was scheduled at an Agency facility beginning December 4. [¶] Visitation was only terminated after [Appellant] missed multiple visits and J.G.’s caretakers and clinician reported that the child experienced severe distress as a consequence of those missed visits.... [¶] The Agency [later] tried to provide an arrangement that would allow visits to continue while still protecting J.G. from distress when appointments were missed. The social worker instructed [Appellant] on December 11, 2008, to contact the visitation supervisor by 11:00 a.m. on the day of a scheduled visit to confirm that he would attend. [Appellant], however, missed every appointment that month. When he finally showed up to visit J.G. on January 8, 2009 (their last visit together), ‘there was very little interaction’ between him and the child and J.G. seemed agitated afterward. [Appellant] continued to miss visits and the Agency warned him in writing that his visitation would be terminated if the pattern continued. [Appellant] did not respond to the letter and did not make any request for assistance in attending visits. He missed three more visits and the Agency informed him visitation was terminated. When [Appellant] discussed these issues in a meeting with the social worker, he rationalized his lack of compliance with his case plan, saying that he felt under a lot of pressure and just wanted his child back. The Agency and the court could reasonably conclude [on this record] the [Appellant’s] behavior pattern in failing to visit with his child was not likely to change.” (Kenneth R. v. Superior Court, supra, A125415.)
While the dependency law arguably requires disposition orders to provide for visitation absent a showing that visitation would jeopardize the child’s physical safety (see In re C.C., supra, 172 Cal.App.4th at p. 1491; but see In re Christopher H., supra, 50 Cal.App.4th at p. 1008), the law also provides that “[v]isitation shall be as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A), italics added.) Where, as here, visitation has been ordered but the parent has missed numerous visits, causing the child significant emotional distress, and where substantial evidence supports a finding that the parent will continue to miss visits, the court acts within its statutory authority by suspending visitation (i.e., regulating the frequency of visitation) until there is a change in circumstances.
III. Disposition
The April 28, 2009 order suspending visitation is affirmed.
We concur: Simons, Acting P. J., Needham, J.