Opinion
D060480 Super. Ct. No. NJ14146
02-16-2012
In re H.M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CHRISTOPHER M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
Christopher M. appeals a juvenile court order placing his minor daughter, H.M., with her mother, terminating the court's dependency jurisdiction and issuing juvenile court custody and visitation orders. Christopher contends the court erred by requiring his visits with H.M. to be supervised. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2009, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging one-year-old H.M. was injured during an incident of domestic violence between Christopher and H.M.'s mother, C.C. (together, the parents), and the parents exposed H.M. to their substance abuse. The court detained H.M. in out-of-home care and ordered the parents to participate in reunification services.
Statutory references are to the Welfare and Institutions Code.
Both parents had criminal and domestic violence histories. The parents remained in a relationship, but were having separate supervised visits with H.M. once a week for two hours. Christopher did not follow through with referrals to parenting classes, domestic violence group therapy and substance abuse treatment.
At the jurisdiction and disposition hearing, the court sustained the allegations of the petition, declared H.M. a dependent and removed her from parental custody. The court placed H.M. with the maternal grandmother and ordered the parents to comply with their case plans.
During the next six months, the parents did not participate in services and continued to have violent confrontations. Christopher refused to attend outpatient drug treatment and said he was using marijuana for medicinal purposes. Agency initially recommended the court terminate services and set a hearing to select and implement a permanent plan for H.M., but later changed its recommendation, asking the court to continue services for the parents.
In December 2009, C.C. was arrested for drug use and possession. She then entered a residential drug treatment program. Christopher completed a parenting class, but needed additional therapy and other services. At the six-month review hearing, the court continued services for six more months.
Agency reported Christopher's visits with H.M. had been canceled at the Family Visitation Center because of excessive absences. C.C. remained in drug treatment and continued to have weekly supervised visits with H.M. The parents engaged in another incident of domestic violence. Christopher's visits with H.M. were sporadic because he was working out of state. He had not attended therapy for two months. C.C. was making some progress in therapy and substance abuse treatment.
At the 12-month hearing, the court found returning H.M. to the parents would be detrimental to her and there was no substantial probability of return in the next six months. The court found services had been reasonable and C.C. had made some progress with the provisions of her case plan. The court terminated services and set a selection and implementation hearing under section 366.26.
In an assessment report, the social worker recommended another planned permanent living arrangement for H.M. She noted H.M. was almost three years old and had been living with the maternal grandmother for more than 18 months. C.C. continued to participate in services, received positive reports from treatment providers and had clean drug tests for 11 months. The social worker supervised several visits and reported H.M. had a very strong emotional attachment to C.C. Because of her progress with services, C.C. was now having unsupervised visits with H.M. In the social worker's opinion, terminating the mother-child relationship would be detrimental to H.M.
H.M. was very happy to see Christopher when he visited. Unlike C.C., Christopher had not complied with services, claiming he did not need them.
H.M. had been on an extended visit with C.C., who was a loving and nurturing mother. C.C. now understood the dysfunctional nature of her relationship with Christopher and had not had any contact with him for about eight months. Although Christopher had begun visiting H.M. regularly and was appropriate during visits, he had not completed any services designed to address the original protective issues. Consequently, the social worker recommended against giving Christopher unsupervised visits. In February 2011, the court placed H.M. with C.C. and ordered family maintenance services.
In her September 2011 report, social worker Jennifer AhSing recommended the court terminate jurisdiction. C.C. had graduated from the Family Recovery Center, and had completed the 12 steps of recovery and a 52-week domestic violence treatment program. C.C. had given birth to Christopher's child in January 2011 and was awarded full custody of her. AhSing recommended Christopher's visits remain supervised. She noted Christopher had gone to family court and obtained an order for full custody of H.M. without telling the judge H.M. was a dependent child and there was a juvenile court order restricting his visits with her. As a result of the inconsistent custody orders, law enforcement came to C.C.'s home, which greatly upset H.M. Following this incident, H.M. would run to another room whenever anyone knocked on the door because she feared being taken away from her mother.
At the contested family maintenance review hearing, Christopher objected to the proposed custody orders limiting his contact with H.M. to supervised visits. After considering the evidence and argument of Christopher's counsel, the court awarded the parents joint legal custody of H.M., gave C.C. sole physical custody of her and ordered Christopher's visits to remain supervised. The court terminated its dependency jurisdiction.
DISCUSSION
Christopher contends the court abused its discretion by ordering his visits with H.M. remain supervised. He asserts there was no evidence this restriction was in H.M.'s best interests, and the visitation order appears to be punishment for his failure to complete reunification services.
A
If the court terminates jurisdiction because the minor is no longer in need of its protection, it may issue custody and visitation orders to be used as the basis for opening a superior court file. (§ 362.4; In re Chantal S. (1996) 13 Cal.4th 196, 203; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) In making such orders, the juvenile court must always consider the best interests of the minor. (§§ 202, subds. (b) & (d), 361, 362.1, 366.21, subds. (e) & (f), 366.22, subd. (a); In re John W. (1996) 41 Cal.App.4th 961, 973.) The court has broad discretion in determining a minor's best interests, and we will not disturb the court's findings on appeal unless the party challenging them has clearly established the court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806.)
The juvenile court defines a parent's visitation rights by balancing the parent's interests in visitation with the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may impose restrictions on parental visitation, consistent with the child's best interests under the circumstances of the case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009; In re Clara B. (1993) 20 Cal.App.4th 988, 999.) The state's obligation to provide for the best interests of the child justifies any limited intrusion on a parent's right to visitation. (In re Melissa H. (1974) 38 Cal.App.3d 173, 175.)
B
Here, the evidence showed Christopher did not comply with the requirements of his case plan in an effort to reunify with H.M. For more than two years, he refused to participate in a drug abuse treatment program or a domestic violence offenders program, and he did not complete individual therapy. Because Christopher never made substantive progress in addressing the protective issues, his visits with H.M., although positive and appropriate, remained supervised throughout the dependency proceedings. In fashioning its visitation order when terminating jurisdiction, the court was entitled to consider this evidence in finding supervised visits were necessary for H.M.'s ongoing protection. Contrary to Christopher's assertion, this was not "punishment for failing to jump through reunification hoops," but instead, was a reasonable exercise of the court's discretion. The fact H.M. enjoyed visiting Christopher, was affectionate with him and showed some distress at the end of visits does not change this analysis. Under these circumstances, the court could reasonably find continued supervision of H.M. as a dependent child was not necessary, but imposing conditions on Christopher's visitation was in H.M.'s best interests as a way to minimize or eliminate the original protective issues. (In re Chantal S., supra, 13 Cal.4th at p. 204 [court may issue appropriate protective order conditioning custody or visitation on parent's participation in counseling program].)
Christopher correctly acknowledges he did not challenge the requirements of his reunification plan at the time they were imposed, and thus, he cannot do so now. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [failure to assert a right in a timely manner results in forfeiture of the ability to claim error as grounds for reversal on appeal].) Thus, we need not address the propriety of the substance abuse component of Christopher's case plan.
Christopher cites no authority, and we have found none, to support his argument the court could not order supervised visits absent evidence of detriment to H.M. that would result from unsupervised visits.
Further, Christopher violated the juvenile court's order for supervised visitation when he sought and obtained a family court order for custody of H.M. without disclosing her dependency status. This resulted in law enforcement intervention and caused anxiety for H.M. because she feared being taken away from her mother. The juvenile court expressed its concern about allowing unsupervised visits in light of Christopher's dishonesty and misrepresentation to a judicial officer. Having considered H.M.'s best interests, the court acted well within its broad discretion by requiring supervised visits for Christopher. (See In re Chantal S., supra, 13 Cal.4th at p. 203; In re Christopher H., supra, 50 Cal.App.4th at p. 1009.) Because H.M. no longer needs the juvenile court's protection, any custody and visitation issues, if and when they arise, can best be addressed in the family court. (In re John W., supra, 41 Cal.App.4th at p. 976.)
DISPOSITION
The order is affirmed.
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McCONNELL, P. J.
WE CONCUR:
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O'ROURKE, J.
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AARON, J.