Opinion
G061887
05-12-2023
In re O.L., a Person Coming Under the Juvenile Court Law. v. M.F., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsels, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 20DP1583 Robert Gerard, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsels, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
MOTOIKE, J.
M.F. (Mother) appeals after the juvenile court denied her Welfare and Institutions Code section 388 petition and terminated her parental rights to her five-year-old daughter O.L. under section 366.26. For approximately nine months preceding the section 366.26 hearing, O.L. refused visitation with her parents. She repeatedly stated she did not want to see them because they had "'hurt'" her. O.L.'s therapist opined contact with her parents was not in the child's best interest because it threatened the progress O.L. had made in therapy. Nevertheless, because the juvenile court had ordered visitation pending the section 366.26 hearing, social workers attempted to persuade O.L. to attend visitation with her parents, but she was steadfast in her refusal.
Subsequent statutory references are to the Welfare and Institutions Code.
On appeal, Mother contends "[t]he juvenile court unlawfully delegated its judicial authority to [O.L.] and her therapist and allowed its visitation order to be thwarted in violation of the separation of powers doctrine." (Italics omitted.) She asserts this improper delegation of judicial authority violated her due process right to meaningfully litigate her case and requires reversal of the order terminating her parental rights. We disagree. We conclude the juvenile court did not delegate its judicial authority when issuing the visitation order, which provided Mother eight hours of supervised weekly visitation. Nor did the juvenile court err in its enforcement of the visitation order. The Orange County Social Services Agency (the Agency) undertook reasonable efforts to persuade O.L. to attend visitation with Mother. Although Mother asserts on appeal the court should have modified the visitation order to provide for therapeutic visitation with O.L., Mother did not make this request below. Throughout the time O.L. was refusing to attend visits, Mother never requested the court change or modify the visitation order. It was Mother's responsibility to request a specific change to the visitation order. (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046 (Sofia M.).) Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
REMOVAL, PETITION, AND DETENTION
In December 2020, Mother gave birth to W.L., and she and the infant both tested positive for amphetamines. The Agency obtained a protective custody warrant to remove W.L., her sibling O.L., and half-sibling A.W. from the custody of Mother and their fathers, citing ongoing substance abuse, mental health issues, and domestic violence in the home. O.L. was three years old when she was removed from her parents' custody; A.W. was eight years old. O.L. and W.L. were placed with their paternal aunt B.L., while A.W. was placed with a resource family.
O.L. and W.L. share the same father, L.L. (Father). This appeal concerns the court's orders terminating parental rights as to O.L. only, and Father did not appeal the court's orders. We therefore focus our description of the facts on O.L. and Mother but discuss Father and the other children where relevant.
The Agency filed a dependency petition, alleging the children came within the juvenile court's jurisdiction under section 300, subdivision (b)(1) (failure to protect). At the detention hearing, the court ordered the children detained in the Agency's protective custody. The court ordered eight hours of supervised weekly visitation for the parents with O.L. and W.L. and supervised phone and video calls. Mother was also authorized to have eight hours of monitored visitation with A.W. and monitored phone and video calls with her.
II.
JURISDICTION AND DISPOSITION
The jurisdiction and disposition report contained disclosures O.L. made concerning domestic violence she had witnessed between her parents and had experienced herself. When the social worker asked O.L. about her parents, O.L. said, "'Daddy is mean. Daddy bit mommy.'" Attempting to clarify what O.L. meant, the social worker asked O.L. if her "daddy hit mommy." O.L. responded, "'[Y]eah. It hurt mommy. Mommy yelled at daddy.'" She stated her parents yelled at each other a lot and Mother told her to get away from Father. She disclosed Father had slapped her in the face and it hurt. O.L. reported Father was yelling at Mother and pushed O.L. out of the house with his hands. It was unclear when this incident occurred and if there was more than one incident. When interviewed by the social worker, O.L. was unable to articulate the difference between the truth and a lie.
A.W. made statements corroborating O.L.'s descriptions of domestic violence occurring in the home prior to their removal. She disclosed Father had hit her, and she was afraid of him. A.W. reported witnessing Father physically abusing Mother.
Agency reports noted problems during visitation. Mother appeared to be under the influence during an in-person visit and a video call with A.W. During a video call with O.L., Mother was observed passing a "'speed pipe'" to someone in the room.
During a compliance visit in February 2021 (two months after removal), O.L. told the social worker she missed her Mother and wanted to go home to her. On another occasion, O.L. expressed she missed her Mother and Father but had difficulty verbalizing her feelings when talking to her Mother.
The jurisdiction and disposition hearing was held in March 2021. Mother did not appear. Her counsel submitted on the legally admissible evidence. The court found the allegations of the amended petition true by a preponderance of the evidence. The court declared the children dependents of the juvenile court under section 360, subdivision (d) and vested custody of the children with the Agency. The court ordered reunification services for Mother and Father. Mother's case plan included, among other things: attend parent education classes, participate in individual counseling and a personal empowerment program, complete a substance abuse outpatient treatment program, attend self-help meetings, and submit to random drug testing. The court ordered Mother to have a minimum of eight hours of supervised weekly visitation with the children. The court found it to be in the children's best interest to be placed together and ordered O.L. and W.L. be placed with A.W. in the resource family home.
III.
SIX-MONTH FAMILY REUNIFICATION REVIEW
The Agency filed multiple reports prior to the six-month review hearing, which was scheduled for September 2021 but was continued and heard in November 2021. In its reports, the Agency recommended the court terminate reunification services and schedule a section 366.26 hearing. The reports showed O.L.'s parents had participated only minimally in their court-ordered case plans. Mother had completed a parent education program and individual counseling, but the counselor recommended Mother be seen by a medical provider to rule out depression. She entered an inpatient drug treatment program but left after five days. Her participation in drug testing was sporadic. She had tested positive for methamphetamine and had failed to test several times, which were deemed to be positive tests. Mother had not enrolled in an outpatient substance abuse program nor attended self-help meetings to address her substance use issues. In September 2021, Mother admitted to the Agency she was still using methamphetamine and disclosed she and Father were being evicted from the home where they resided.
The reports described issues and concerns with visitation, including aggression by Father during the visitation, aggression by both parents toward the resource caregiver, and the parents canceling or failing to show up for visits. Visits were initially supervised by the resource caregiver, but after several of these incidents, visitation was conducted at Olive Crest and supervised by its staff. Olive Crest staff opined the quality of the visits was not beneficial to the children. Mother and Father were late to the visits they attended and often did not bring items the children needed for the visit. One visit was terminated early because Mother was under the influence. During a visit, O.L. bit Father's shoulder while sitting on his lap. Father reactively responded by slapping or shoving O.L.'s face to get her to release her bite and did not interact with her for most of the time remaining during their visit.
The Agency's reports also discussed behavioral issues O.L. was exhibiting. Her behavioral issues, which included aggression and yelling outbursts, started to decrease after she began therapy and adjusted to living in the resource family home. But some persisted and after a few months, she began "displaying increasingly manic behaviors and inconsolable tantrums." O.L.'s therapist diagnosed her with post-traumatic stress disorder with dissociative symptoms based on her exposure to traumatic events including domestic violence, drug abuse, and general neglect while living with her parents. O.L. also exhibited sexualized behavior and disclosed sexual abuse by Father. O.L. was referred to a comprehensive treatment program for therapy to address her sexualized behaviors and disclosures.
The resource caregivers reported O.L.'s visitation with her parents had a negative impact on her behavior as she would return from the visits "with a defiant attitude" and suffered "from substantial sleep disturbances" after the visits. During the first month of visits, O.L. experienced night terrors after almost every visit. The resource caregivers expressed they were unable to provide a long-term placement for O.L. as she needed a higher level of care than they were able to provide, but they desired to provide permanency for A.W. and W.L.
In July 2021, when the social worker asked O.L. about her visits with her parents, O.L. stated she liked visiting them. However, six days later, O.L. refused to visit with her parents and threw "a huge tantrum" because she did not want to go to the visit. On other occasions, O.L. told the resource caregivers she did not want to stay with her parents at their house but was willing to see them at visits. During some visits, she expressed a desire to leave early.
In October 2021, O.L. requested to visit with Mother but stated she did not want to visit if Father was there. When the social worker asked her why she did not want to visit with Father present, O.L. responded "'[Father] is mean, and he does bad things to me.'" O.L. expressed she did not feel safe during the visit when Father was there. As a result, Father forfeited his visits with O.L. to allow Mother to visit with the children. Social workers and the resource caregivers encouraged the children to attend their weekly visits with Mother and Father, as A.W. had requested to cease her visits with Mother.
At the contested six-month review hearing, Mother testified her visitation had been canceled for the preceding six weeks because the children were either traveling with the resource family or sick. Some of her visits during the summer had also been canceled because the children were traveling with the resource family. Mother had not been provided make-up hours for the missed visitation. She disputed she had missed or canceled visits as stated in the Agency's reports. Mother admitted she was still using drugs and explained she was not drug testing because she knew she would test positive.
The court terminated reunification services for Mother and Father as they had made only minimal progress in mitigating the circumstances that had led to the juvenile court's intervention. Based on the Agency's reports and recommendations and the parents' testimony at the hearing, the court found a hearing under section 366.26 was in the children's best interest.
After terminating reunification services, the court addressed visitation pending the section 366.26 hearing. The court noted O.L. had "certainly made her feelings known." The court stated its order was eight hours supervised weekly visitation for each parent with O.L. and W.L., and the court gave the Agency the discretion to restrict or liberalize visitation. Discussing its order, the court stated: "[W]hile I don't necessarily want a four-year-old [O.L.] to be driving the train as to visitation, we ought to, of course, give careful consideration to the wishes of a child. And we can't, as [minors' counsel] articulated, force them into the car." The court indicated if there was an issue with the visitation order, the parties could bring it to the court's attention in an ex parte or section 388 petition.
IV.
REPORTS PRECEDING O.L.'S Section 366.26 HEARING
In January 2022, O.L. was placed in a new home, after the resource family gave notice. In her new home, O.L. was the only young child and was adapting well. Her new caregiver expressed a desire to provide her with permanency through adoption. Although O.L. did not appear to fully comprehend the significance of adoption, she expressed she never wanted to live with her birth parents again because they "'hurt'" her.
After O.L. was moved to her new placement, paternal aunt B.L. contacted the Agency and requested to be reassessed for O.L.'s placement. The Agency initiated a relative placement referral in February 2022.
The next month, the court terminated parental rights as to A.W. and W.L. and found the children were likely to be adopted as the resource family had expressed a desire to adopt them. Neither Mother nor Father personally appeared at the hearing. The court continued the section 366.26 hearing concerning O.L. to further assess her recent placement change. The hearing was continued multiple times until it was heard in August 2022.
The Agency filed multiple reports leading up to the section 366.26 hearing concerning O.L. Addressing visitation, a report explained in November 2021, Olive Crest staff reported the parents applied cream on O.L. despite her crying and refusing to be touched. When O.L. asked her parents to stop, Father responded her eczema was flaring up and he was applying lotion to her dry areas. Subsequently, O.L. began refusing to attend visits with her parents, stating they "'are mean, and they hurt me.'" She was "adamant" she did not want to have contact with her parents and told the social worker she did not like her parents because they hurt her. Mother admitted to the social worker she had attended visits with the children after using controlled substances the day prior to her visit.
O.L.'s therapist provided a progress report to the Agency in May 2022. O.L. was attending weekly sexual abuse counseling and her therapist shared O.L. had made tremendous progress in her therapy goals and communicating her feelings. The therapist further reported after O.L. ceased visits with her parents, her play therapy . . . decreased in forms of aggressive play and indicators of sexual knowledge not ordinarily possessed by young children." The therapist opined it was not in O.L.'s best interest to visit with her parents as the visits jeopardized the progress O.L. had made in feeling safe in her environment and not being triggered by the trauma she had endured.
In June 2022, Mother and Father met with the social worker to ask the Agency to reconsider its recommendation to terminate their parental rights as to O.L. They reported they had been sober for more than 60 days and wanted to resume drug testing. Mother was employed part-time and residing separately from Father, demonstrating she was financially stable and living in a suitable home.
Both Mother and Father expressed to the social worker their desire to see O.L. at visitation. The social worker informed them she asked O.L. each month if she was willing to attend visits with her parents, but O.L. refused any form of visitation with them-in-person, by phone, or video. The social worker encouraged O.L.'s parents to write to the child.
Mother wrote a letter to O.L., and the social worker read it to O.L. during a monthly compliance visit. The social worker reported O.L. smiled and enjoyed listening to her read the letter. However, when the social worker asked O.L. about visiting with her parents or speaking to them over the phone, O.L. responded, "'I don't want to see them[,] they hurt me.'" As O.L. and the social worker continued talking, O.L. began displaying sexualized behavior. The social worker redirected O.L. and told her the behavior was inappropriate. After the visit, O.L. requested her caregiver put Mother's letter away, and she did not inquire about it again.
In a June 2022 progress report, O.L.'s therapist advised O.L. had continued to make progress in her treatment goals but would benefit from ongoing treatment because she had "'endured so much trauma while in the parents['] care ....'" In the therapist's opinion, it was not in O.L.'s best interest to have any contact with her parents as it would cause her to regress in the progress she had made.
Mother continued to request visits with O.L., but O.L. refused to visit with her in person or talk to her on the phone. O.L.'s caregiver reported that after the social worker's monthly talks with O.L. about visiting her parents, O.L. would become verbally aggressive and defiant. O.L. informed her caregiver she did not want to talk about visits anymore. She told her caregiver she did not like her parents because they "'are mean, and they hurt [her],'" the same thing she said to the social worker when asked about attending visits with her parents. O.L. disclosed abuse to her caregiver, stating Father "'used a screwdriver and [Mother] used her fingers and they both hurt me really bad.'" She also said Mother would sometimes try to hide her from Father so he would not hurt her.
In July 2022, Mother asked the social worker to arrange a visit for O.L.'s birthday. Mother acknowledged O.L. did not want to see her, but Mother reminded the social worker visitation was ordered by the court and was not up to O.L. When the social worker told O.L. Mother wanted to visit her for her birthday, O.L. responded, "'I don't want to see [Mother] ever, she hurt me.'"
O.L. was thriving in the care of her caregivers. The Agency recommended the court terminate parental rights and find O.L. adoptable.
V.
MOTHER'S SECTION 388 PETITION
In August 2022, on the day O.L.'s selection and implementation hearing was scheduled, Mother petitioned the court pursuant to section 388 to change its November 2021 order terminating her reunification services and setting the matter for a section 366.26 hearing. She requested the court return O.L. to her custody or, alternatively, place O.L. with paternal aunt B.L. in San Bernardino County, where a relative placement referral was pending. If these requests were denied, Mother desired the court order additional reunification services for her. She asserted the change of order was warranted because she had "taken significant steps to address" the Agency's concerns that led to the court's intervention.
In support of her petition, Mother stated she had been clean and sober since April 4, 2022 and had been attending AA meetings. She provided documentary evidence showing she had negative drug tests on four different dates in August 2022 and had attended six AA/NA meetings between April 27, 2022 and June 6, 2022. She also indicated she had earned a 90-day chip. Mother had recently enrolled in an outpatient substance abuse program and had an upcoming treatment plan appointment. In addition to addressing her substance abuse disorder, Mother was also working on her mental health. She had resumed weekly therapy sessions in July and went to a behavior health clinic, where she was prescribed medication for depression. Mother's therapist reported Mother "always attended sessions as scheduled, on time (often early), and has demonstrated motivation to maintain sobriety, and perseverance to be reunited with her children." Mother was no longer living with Father; she had moved in with O.L.'s paternal aunt B.L. in May. Mother had obtained employment in June. She explained the termination of her parental rights as to A.W. and W.L. "was a devastating experience" and it "catapulted her to make significant changes in her life to reunify with [O.L.]."
The juvenile court denied Mother's section 388 petition on the ground the petition failed to make a prima facie showing of a changed circumstance or that granting Mother's request was in O.L.'s best interest.
VI.
THE SECTION 366.26 HEARING
Both parents testified at the contested section 366.26 hearing in August 2022. Father testified he was opposed to the Agency's recommendations of termination of parental rights and adoption as O.L.'s permanent plan. In her testimony, Mother addressed visitation problems and other issues. Mother admitted there were times she missed visits. She also acknowledged some visits were canceled halfway through the visit. Mother denied being under the influence during visits with O.L.
Mother testified when O.L. was in the care of the resource family, she noticed a burn on O.L.'s ear and O.L. said one of the children in the house did it. Mother also noticed bite marks and a bruise near O.L.'s private area, which she reported to the visitation monitors and the social worker. After O.L. was removed from Mother's care, O.L. started exhibiting new, inappropriate behaviors as she was behaving sexually and started biting and kicking. O.L. told Mother the resource caregiver did not like Mother and said Mother was mean. Shortly after O.L. started saying these things, O.L. did not want to attend visits with Mother anymore. Mother testified her last visit with O.L. was in November 2021. Since then, she had routinely contacted the social worker and asked if O.L. was coming to the visit. The social worker did not respond to most of Mother's messages, but when she did respond, she told Mother visits were at the Agency's discretion and she did not have to provide Mother visits. Mother sent the social worker three letters for O.L., but the social worker only got one and gave it to O.L.
The court heard argument from the parties. The Agency argued O.L. was adoptable and asked the court to select and implement the permanent plan of terminating parental rights and releasing O.L. for adoption. O.L.'s counsel requested the court follow the Agency's recommendation. Mother and Father argued the court should find the parental-benefit exception applied and not terminate parental rights. Mother requested the court resume visitation because the lack of visits during the preceding nine months denied her due process and deprived her of the opportunity to establish the parental-benefit exception.
The court found the parents met none of the three prongs of the parental-benefit exception. Finding O.L. was likely to be adopted, the court terminated parental rights and freed her for adoption.
DISCUSSION
VISITATION AND DUE PROCESS
Mother argues the juvenile court unlawfully delegated its authority regarding visitation to O.L. and her therapist and failed to enforce its visitation order. She asserts this improper delegation of authority over visitation violated the separation of powers doctrine and her due process right to litigate her case. She contends the order terminating her parental rights should be reversed and on remand she should be afforded visits with O.L., a new hearing on her section 388 petition, and a new section 366.26 hearing. We disagree. We conclude the court did not delegate its authority over visitation and therefore violated neither the separation of powers doctrine nor Mother's due process rights.
A. Applicable Law
"'It is axiomatic that due process guarantees apply to dependency proceedings.' [Citations.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.) The California Supreme Court has held the procedure "in section 366.26 for terminating parental rights comports with the due process clause of the Fourteenth Amendment because the precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.)
When the juvenile court terminates a parent's reunification services and orders a selection and implementation hearing under section 366.26, the court must permit the parent to continue to visit the child unless it finds visitation would be detrimental to the child. (§ 366.21, subd. (h); In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504 (Hunter S.).) But at this point in the child welfare proceedings, after reunification services have failed, the focus "shifts from the parents' interest in reunification to the child's interest in permanency and stability. [Citation.]" (In re Dakota H., supra, 132 Cal.App.4th at p. 223.)
At the section 366.26 hearing, termination of parental rights and an order placing the child for adoption is the preferred plan. (§ 366.26, subd. (b)(1).) This preference may be overcome only in limited circumstances. One such circumstance is the parental-benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) A parent may avoid termination of parental rights by establishing, by a preponderance of the evidence, three things: (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "the child has a substantial, positive, emotional attachment to the parent"; and (3) "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (In re Caden C. (2021) 11 Cal.5th 614, 636-637.)
In Hunter S., the Court of Appeal explained "[m]eaningful visitation is pivotal to the parent-child relationship, even after reunification services are terminated," (Hunter S., supra, 142 Cal.App.4th at p. 1504) and "the only way a parent has any hope of satisfying [the parental-benefit exception] is if she maintains regular contact with her child" (id. at p. 1505). If a parent is deprived of visitation, the parent is not going to be able to establish the parental-benefit exception or have a meaningful opportunity to avoid the termination of parental rights. (Ibid.) "Thus, the erroneous denial of parent-child visitation compromises a parent's due process rights to litigate and establish the [parental-benefit] exception. [Citation.]" (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
The juvenile court has the sole authority to determine whether any parentchild visitation occurs. (In re S.H. (2003) 111 Cal.App.4th 310, 317.) The court may not delegate this power to social workers, a therapist, or the child. If the court does so, it violates the separation of powers doctrine. (Id. at pp. 317-318; see also In re Korbin Z. (2016) 3 Cal.App.5th 511, 517 ["court 'improperly delegate[s] its authority and violate[s] the separation of powers doctrine' if it 'delegates the discretion to determine whether any visitation will occur' to a third party"]; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 ["Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine"].)
The court, nevertheless, may give the social worker responsibility for managing "the actual details of the visits, including the power to determine the time, place and manner in which visits should occur. [Citation.]" (In re S.H., supra, 111 Cal.App.4th at p. 317.) Factors to be considered in administering visitation include "the child's input and refusal and the possible adverse consequences if a visit is forced against the child's will." (Ibid.) But the child's wishes may not be "the sole factor in determining whether any visitation takes place, either as a formal matter or . . . by effectively giving the child[ ] the power to veto all visits. [Citations.]" (Id. at pp. 319320.)
B. The Juvenile Court Did Not Delegate its Judicial Authority
Mother argues the juvenile court improperly delegated its judicial authority over whether visits would take place to O.L. and her therapist by failing to enforce the visitation order and this delegation of authority violated the separation of powers doctrine. Mother's argument conflates the propriety of the visitation order with its enforcement. A court's issuance of a visitation order is distinct from enforcement of the order, as a panel of this court explained in Sofia M., supra, 24 Cal.App.5th at page 1046.
Here, the court issued a proper visitation order. The court ordered eight hours of weekly visitation for each parent and gave the Agency the discretion to restrict or liberalize visitation. The court did not delegate its authority to any third party (O.L., her therapist, or social workers) to determine if Mother was entitled to visitation. When issuing its visitation order, the court stated it did not want O.L. "to be driving the train as to visitation" but her wishes should be given consideration and she should not be forced into the car. In making these statements, the court did not impermissibly delegate to O.L. or anyone else the power to overrule the court's order for eight hours of weekly visitation.
Finding no improper delegation of judicial authority in the visitation order, we turn to its enforcement, which is where Mother's real contention lies. At the time the court issued its visitation order, O.L. was consistently visiting with Mother but had stated she did not feel safe with Father present and did not want to visit if he was. Father initially forfeited his visits with O.L. to allow Mother to visit with the children. But the month the court terminated reunification services and issued the order for visitation pending the section 366.26 hearing, Father was present for at least one visit with O.L. During the visit, Olive Crest staff observed Mother and Father apply cream on O.L. for her eczema, despite her crying, refusing to be touched, and asking them to stop. Thereafter, O.L. began refusing all visitation with her parents. By the time of the section 366.26 hearing, Mother had not had a visit with O.L. in nine months.
Mother faults the court for not enforcing its visitation order and the Agency for denying her visits for nine months. Mother acknowledges the reason visits did not occur during this time period was because O.L. refused visitation in all forms-in-person, phone, or video. But O.L.'s refusal of a proper visitation order does not mean the juvenile court erred. As explained in Sofia M.: "When a child refuses visitation, it is the parent's burden to request a specific type of enforcement, or a specific change to the visitation order. Absent a request, it is not the court's burden to sua sponte come up with a solution to the intractable problem of a child's steadfast refusal to visit a parent. Trial judges are not mental health experts, nor child behavior experts. As one court noted, '[D]ependency courts "simply do not have the time and resources to constantly fine tune an order in response to the progress or lack thereof in the visitation arrangement, or in reaction to physical or psychological conduct which may threaten the child's wellbeing."' [Citation.] Those sorts of changes are better handled, in the first instance, through communication with [the Agency], and, as needed, through motions to modify the visitation order. It is the parent's burden to initiate those procedures, not the court's." (Sofia M., supra, 24 Cal.App.5th at p. 1046.)
Here, Mother consistently communicated with the Agency regarding her desire to visit with O.L., even reminding the social worker of the court's comments when issuing the visitation order that it was not up to O.L. But this was not enough to bring to the court's attention her lack of visitation with O.L. When the court issued the visitation order, it advised the parties if there was an issue with the enforcement of the visitation order, the parties could bring the matter to the court's attention in a petition. Mother did not heed the court's advisement. It was Mother's responsibility to alert the court to her lack of visitation and request any desired modification of the visitation order. (Sofia M., supra, 24 Cal.App.5th at p. 1046.) She did not do so for nine months and only raised the issue of lack of visitation at the section 366.26 hearing in the context of arguing it denied her due process. The juvenile court cannot be faulted for failing to do that which it was not requested to do. (Sofia M., at p. 1046.)
Mother's assertion the Agency did not make reasonable efforts to enforce the court's visitation order fares no better as the record shows otherwise. Social workers repeatedly asked O.L. about her willingness to attend visits with her parents or talk to them on the phone or via video. But O.L. refused all of these options. The social worker had Mother write a letter to O.L., which the social worker read to O.L. As O.L. seemed to enjoy listening to the letter and smiled, the social worker used this as an opportunity to discuss with O.L. visiting with her parents or talking to them over the phone. O.L. responded she did not want to see her parents because they "'hurt'" her. The social workers and O.L.'s caregivers encouraged her to attend her weekly visits with her parents, but O.L. could not be persuaded. The efforts undertaken by the Agency to facilitate visitation were reasonable.
At the section 366.26 hearing, county counsel acknowledged a request should have been made to the court to make a detriment finding and deny visitation based on the progress reports from O.L.'s therapist indicating it was not in O.L.'s best interest to have contact with her parents.
Mother asserts more should have been done to encourage O.L. to attend visits. For the most part, Mother is vague as to what further efforts should have been undertaken. Providing one example, she contends efforts could have been made to have conjoint therapy with her and O.L. However, Mother did not request the juvenile court modify the visitation order to provide for visitation in a therapeutic setting. Because Mother did not request this modification below, the court did not err by failing to sua sponte modify the visitation order to provide for therapeutic visitation. (Sofia M., supra, 24 Cal.App.5th at p. 1046.) Nor does the record show Mother requested the Agency coordinate therapeutic visitation with O.L.
Mother's reliance on Hunter S., supra, 142 Cal.App.4th 1497 is misplaced. We find Hunter S. factually distinguishable, and like the panel in Sofia M., we find language in Hunter S. conflates the propriety of a visitation order with its enforcement. (Sofia M., supra, 24 Cal.App.5th at p. 1046.) In Hunter S., after reunification services were terminated and a section 366.26 hearing was scheduled, the juvenile court ordered visitation "'as can be arranged through [mother's rehabilitation center] program.'" (Hunter S., supra, 142 Cal.App.4th at p. 1501.) The child, however, refused to visit his mother, despite efforts by the family services agency, relatives, and therapist to convince him to do so. (Ibid.) The child's mother continued her efforts to visit the child, but he refused contact. (Id. at p. 1502.) At a postpermanency planning hearing, the mother raised the issue of lack of visitation and requested to visit the child in a therapeutic or other setting. (Ibid.) The court ordered family services to discuss the matter with the child's therapist. (Ibid.) At subsequent hearings, the mother again asked the court to change its orders to enable her to get joint therapy with the child, but the court refused and ignored these requests. (Id. at p. 1503.) The mother also filed a section 388 petition, seeking to rectify the court's failure to enforce the visitation order, but the court denied her petition. (Id. at pp. 1503, 1506.)
The Court of Appeal held the juvenile court erred in ordering visitation "'as can be arranged'" because it gave the child "virtually complete discretion to veto visitation." (Hunter S., supra, 142 Cal.App.4th at p. 1505.) The visitation order in Hunter S. is distinguishable from the order in the present case, which set a specific length and frequency of visits, and clearly established Mother was entitled to visitation. (See Sofia M., supra, 24 Cal.App.5th at p. 1046 [distinguishing visitation order that provided length and frequency of visitation with order in Hunter S.].)
But the propriety of the visitation order is not the only material distinction between the instant matter and Hunter S., as the facts concerning enforcement of the order are distinguishable. The mother in Hunter S., "consistently raised the issue" of lack of visitation with the juvenile court and sought modification of the court's visitation order. (Hunter S., supra, 142 Cal.App.4th at p. 1505.) The mother in Hunter S. also filed a section 388 petition explicitly raising the issue of lack of visitation. (Hunter S., at pp. 1503, 1506.) Here, in contrast, after O.L. refused visits with her, Mother did not request visits in a therapeutic setting or any other modification of the visitation order. For nine months, she did not raise the issue of lack of visitation with O.L. to the court and her section 388 petition was not concerned with her lack of visitation.
In Hunter S., the Court of Appeal concluded the juvenile court had delegated to the child and the child's therapist whether and when visitation with the child's mother would take place and because the child refused contact with his mother, the visitation order was never enforced. (Hunter S., supra, 142 Cal.App.4th at p. 1505.) In Sofia M., this court disagreed with the suggestion in Hunter S. "that the court errs when the child refuses a proper visitation order." (Sofia M., supra, 24 Cal.App.5th at p. 1046.) The Sofia M. court, instead, placed the onus on the parent to bring to the juvenile court's attention the child's refusals and to request a specific change to the visitation order or a specific type of enforcement. (Ibid.) As Sofia M. explained, the juvenile court "must, consistent with the child's well-being, order visitation and enforce that order appropriately. But if it turns out, after reasonable efforts have been exhausted, the child simply cannot be persuaded to visit, that, in and of itself, is not a basis for reversal." (Id. at p. 1047.) We find the reasoning in Sofia M. persuasive. We agree with Sofia M. it was Mother's responsibility to bring to the court's attention her lack of visitation with O.L. and not the court's duty to ensure any particular efforts were successful in overcoming O.L.'s opposition to visitation. (Ibid.) We conclude O.L.'s refusal to visit is not a basis for reversal where, as here, the juvenile court properly ordered visitation and the parent failed to request a specific type of enforcement or a specific change to the visitation order. (Id. at p. 1046.)
Similarly, we conclude there was no violation of Mother's due process rights. Mother asserts the absence of visitation with O.L. for nine months deprived her of her due process right to meaningfully litigate her case as she bore the burden of proof in her section 388 petition and in establishing the parental-benefit exception. Mother was given a full and fair opportunity to litigate her section 388 petition and to show the parental-benefit exception applied; the court's consideration of these issues did not hinge on visitation. In denying Mother's section 388 petition, the court praised the progress Mother had made recently in addressing her substance abuse disorder, but the court explained Mother had not made the necessary showing of changed circumstances. The court also found the parental-benefit exception had not been shown for reasons unrelated to visitation.
Like the juvenile court, we commend Mother for her efforts and encourage her to continue on the path she was on at the time of the hearing.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.