Opinion
E081013
11-15-2023
In re A.U., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, J.M., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Catherine E. Rupp, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ2200029. Dorothy McLaughlin, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Catherine E. Rupp, Deputy County Counsel for Plaintiff and Respondent.
OPINION
RAPHAEL J.
After the juvenile court terminated reunification services for defendant and appellant J.M. (mother) at the 12-month review hearing, it set visitation rights at two supervised visits per month. On appeal, mother argues that the trial court abused its discretion in reducing visitation. We disagree and affirm.
Undesignated statutory references are to the Welfare & Institutions Code.
BACKGROUND
In January 2022, plaintiff and respondent Riverside County Department of Social Services (DPSS) petitioned as to A.U. (child), then six months old, alleging that "mother has a chronic and unresolved history of abusing controlled substances and continued to abuse methamphetamine and marijuana during her pregnancy, resulting in the mother and child testing positive for amphetamine and marijuana at the time of birth." The petition also included allegations about father. In April 2022, the juvenile court sustained the petition, removed the child from parental custody, and ordered reunification services for both parents. At the 12-month review hearing in March 2023, where mother testified, the juvenile court ordered family maintenance services for father and ordered the child to be returned to father on the condition that he reside with the child's maternal grandparents. The court terminated mother's family reunification services because it found clear and convincing evidence that mother "failed to participate regularly and make substantive progress in a court-ordered treatment plan." It ordered mother's visitation to be "reduced to no more than 2 times per month, supervised."
ANALYSIS
The stage of the dependency proceeding greatly affects the priority placed on a parent's visitation rights. During reunification, visitation is "essential." (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) Reunification services must provide for "visitation between the parent or guardian and the child," and the visitation must be "as frequent as possible" while protecting the safety of the child. (§ 362.1, subd. (a)(1)(A)-(a)(1)(B).) However, "[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The goal is no longer to "maintain ties between the parent . . . and the child," which is the stated purpose of reunification services (§ 362.12, subd. (a)), but rather to address the child's need for "permanency and stability" (In re Marilyn H., supra, 5 Cal.4th at p. 309). "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Once a section 366.26 selection and implementation hearing has been ordered, the diminished visitation right is codified. There is no longer a mandate to provide visitation "as frequent[ly] as possible" (§ 362.1, subd. (a)(1)(A)), but a generic and qualified right to visitation in general: "The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child." (§ 366.21, subd. (h).) Here, due to the child's return to father, no section 366.26 hearing has been set. The Welfare & Institutions Code does not directly address visitation after the termination of reunification services when no section 366.26 hearing has been ordered. Nevertheless, it is settled law that "[a]fter the termination of reunification services," as here, "the parent['s] interest in . . . companionship . . . [is] no longer paramount." (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Viewing mother's right to visitation under this framework, we are not persuaded the juvenile court exceeded the bounds of reason. (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095-1096 [visitation orders "may be reversed only upon a clear showing of an abuse of discretion," and "'"'[t]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason'"'"].) First, although the juvenile court characterized the visitation order at the 12-month review hearing as a reduction in visitation, in fact, the visitation order largely maintained the status quo. At the review hearing, mother testified that she visited the child once every two weeks for an hour at a time. Assuming that to be so, the visitation order, which called for visits "2 times per month, supervised," did not represent a substantial reduction.
DPSS described a different frequency of visitation in its 12-month status review report, which stated mother was visiting with the child "2 hours per week." But since it is mother's burden on appeal to demonstrate error (Jameson v. Desta (2018) 5 Cal.5th 594, 609), "ambiguities are resolved in favor of affirmance" (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631), and mother has not referred us to anything in the record resolving the discrepancy, we accept mother's testimony at face value.
Second, the juvenile court found clear and convincing evidence that mother "failed to participate regularly and make substantive progress in a court-ordered treatment plan," and that finding is supported by substantial evidence. "When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012; see also Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 [under abuse of discretion, "findings of fact are reviewed for substantial evidence"].)
Between April 2022, when reunification services began, and March 2023, when those services were terminated, mother failed to appear for drug testing several times. The no-shows were for tests toward the end of the period: one in November 2022, two in December 2022, one in January 2023, and one in February 2023. In the 12-month status review report, the social worker stated that a drug test with one day's notice was scheduled in January 2023, but mother "responded that she was not going to test because she 'used' the night before as she was 'stressed.'" Additionally, in November 2022, mother was discharged from her substance abuse program because she had stopped attending. Despite having already been discharged from the program, mother told a social worker in December 2022 that she was doing "very well" in that program. At the 12-month review hearing, mother denied that she had ever been discharged from that program, but she also stated that she had started a second program "before Christmas" for two months before leaving that program and starting a third one a week before the review hearing. Given mother's repeated failures to show up for testing, her repeated starts of successive substance abuse programs, and her admission of continuing to use methamphetamine-all of which occurred toward the end of the reunification period- the juvenile court's finding that mother failed to make substantive progress is supported by substantial evidence and thus establishes that the visitation order was reasonable.
Third, we are unaware of any authority finding any similar visitation order to be an abuse of discretion, and mother has not provided us with any. Several cases mother cites either concern visitation orders during the reunification stage (In re Alvin R. (2003) 108 Cal.App.4th 962; In re Mark L. (2001) 94 Cal.App.4th 573, disapproved of by Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7), orders denying any visitation at all (In re C.C. (2009) 172 Cal.App.4th 1481; In re Monica C. (1995) 31 Cal.App.4th 296; In re John B. (1984) 159 Cal.App.3d 268), or orders that improperly delegate the decision on visitation (In re Ethan J. (2015) 236 Cal.App.4th 654; In re Hunter S. (2006) 142 Cal.App.4th 1497; In re S.H. (2003) 111 Cal.App.4th 310; In re Nicholas B. (2001) 88 Cal.App.4th 1126). The visitation order here involves none of those situations, and none of the cases mother cites concerns a visitation order like hers.
We note that, as far as our record discloses, no permanency planning hearing has been set, so there remains some time for mother to show that circumstances have changed such that she should be granted increased visitation. But on the facts before us now, we find no abuse of discretion in the juvenile court's visitation order.
DISPOSITION
The visitation order is affirmed.
We concur: CODRINGTON Acting P. J., FIELDS J.