Filed 6/29/15 In re A.W. CA1/1
Received for posting 7/2/15
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re A.W. et al., Persons Coming Under
the Juvenile Court Law.
MENDOCINO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
CHILDREN AND FAMILY SYSTEM OF
CARE, A143221
Plaintiff and Respondent, (Mendocino County
v. Super. Ct. Nos. SCUK-JVSQ-1415763,
SCUK-JVSQ-1415764, SCUK-JVSQ-
CLARENCE W., 1417027)
Defendant and Appellant.
Appellant Clarence W. (father) and Nicole S. (mother) have long been involved in
juvenile dependency proceedings under Welfare and Institutions Code section 300.1
Most recently, the juvenile court denied father reunification services because of his
history of substance abuse and because reunification services for him had previously been
terminated. In this appeal, father does not challenge that decision but instead challenges
the court’s decision to deny him visitation with his children while he is in prison. We
affirm.
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All statutory references are to the Welfare and Institutions Code unless otherwise
specified. Mother does not challenge the juvenile court’s disposition order and is not a
party to this appeal.
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I.
FACTUAL AND PROCEDURAL
BACKGROUND
Respondent Mendocino County Health and Human Services Agency, Children and
Family System of Care (Agency) has been involved with this family since at least August
2009, when it filed a dependency petition relating to mother’s and father’s two older
children and an older child of mother who is unrelated to father (and who is not the
subject of this appeal). The juvenile court sustained allegations that the children were at
substantial risk of harm due to domestic violence between father and mother, which
included incidents in which father was arrested and charged with abuse; that father and
mother both violated a stay-away restraining order imposed as a condition of placing the
children with mother after the dependency petition was first filed; and that father had a
history of substance abuse, evidenced by several alcohol-related arrests, hindering his
ability to protect and parent his children. The children were placed with mother, and
services were ordered for father.
Shortly thereafter, the minors were detained when the Agency filed a supplemental
petition alleging that father was living with mother in violation of the court’s stay-away
order. The court sustained the supplemental allegations, but it ordered the minors be
returned to mother’s custody. It also ordered father to receive family-reunification
services and be permitted to have weekly, supervised visits with his children lasting at
least one hour.
Father made progress on his case plan, and in September 2010 the juvenile court
ordered that he regain physical custody of his children, who remained dependents of the
court. But, less than a month later, the Agency filed a supplemental petition alleging
father had tested positive for alcohol, failed to show up for a scheduled drug test, and
failed to attend a group meeting as part of his substance-abuse program. Father first
voluntarily left the family home under an agreement with the Agency. At a jurisdiction
hearing in November 2010, the juvenile court found the supplemental allegations true,
but it permitted father to return to the family home.
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By the time the disposition hearing took place the following month, however,
mother and her children had moved out of the family home in order to keep the children
safe, and the Agency reported that father had not complied with the requirements of a
family dependency drug court. Father also was not participating in treatment for
domestic violence and anger management. At the disposition hearing, the juvenile court
found that father’s progress in his case plan had been minimal and that he had “a history
of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-
ordered treatment for this problem during a three-year period immediately prior to the
filing of the petition.” (§ 361.5, subd. (b)(13).) The court terminated services for father
and terminated him from the drug court. It also ordered, however, that father be
permitted supervised visits with his two children a minimum of every other week,
because father was “important to his children and I don’t want to break that tie.” The
children remained placed with mother, who was to continue receiving family-
maintenance services.
The juvenile court dismissed dependency jurisdiction in April 2011, finding that
continued court supervision was unnecessary because mother was doing well with the
children. Mother was granted legal and physical custody, and father was granted
visitation with his two children a minimum of once a month. Father was ordered to be
clean and sober at the time of the visits.
Mother and father had a third child in November 2011. In the ensuing three years,
father was arrested at least six times, mostly on charges related to domestic violence
against mother: three times in 2012, once in 2013, and twice in 2014. He received two
separate 90-day jail sentences related to spousal abuse.
In June 2014, all three of mother’s and father’s children, as well as mother’s older
child with a different father, were the subject of a new dependency petition. It is a
visitation order entered in proceedings related to this petition that gives rise to the current
appeal. The petition alleged that mother had a current drug problem and had driven her
children to an Agency office while under the influence of a controlled substance. Mother
was alleged to be homeless, and the children were reported to be dirty, disheveled, and
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hungry. At this time, father was in a secure residential drug-treatment program that was
ordered as a term of probation. The children were detained and placed in a protective
foster-care home that was connected to the Indian tribes of which the children were either
registered or potential members.
During the Agency’s investigation, the social worker received reports that the
children had witnessed domestic violence between mother and father, that father had
yelled at the children when he was drinking, and that father slapped the backs of his three
children’s heads. The Agency also learned that father had been expelled from his
substance-abuse treatment program a month before he was scheduled to complete it. As
of the date the July 2014 jurisdiction report was prepared, father had not met with the
social worker. The Agency planned to assess him for visitation “as soon as he steps
forward and meets with the social worker.” The Agency was unable, however, to obtain
father’s current mailing address.
Father was not present at the jurisdiction hearing held in July 2014, and his
whereabouts were unknown. The juvenile court sustained allegations in the new petition
under section 300, subdivision (b) (failure to protect), including allegations that father
had a chronic history of substance abuse and violent behaviors, that he also had an
extensive history of criminal arrests and convictions for drug-related offenses and crimes
of violence, and that the children had witnessed domestic violence between mother and
father. The Agency scheduled meetings with father in advance of the disposition hearing,
but he failed to show up.
At the beginning of the scheduled disposition hearing in August 2014, the social
worker reported that father had been arrested that morning. The hearing was continued
so that the Agency could prepare a disposition report. Father was present at the
continued hearing. He was apparently incarcerated in the local jail at the time, and he
reportedly was scheduled to be sentenced later that month to state prison and receive a
two-year sentence for violating the terms of his probation, with an expected release date
in summer 2015. Mother also was incarcerated in August 2014 after she was arrested
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that month on charges of forging her name on a stolen check and trying to cash it at a
Ukiah bank.
Following another continuance, the juvenile court held a contested disposition
hearing. The director and case manager for Indian Child and Family Preservation
Program (a consortium of four tribes) testified as an expert in dependency issues under
the Indian Child Welfare Act of 1979 (25 U.S.C.A. § 1901 et seq.) (ICWA). She
reported that the minors had been placed in a “very, very wonderful home” that was
tribal-approved, and she expressed her opinion that it was in the children’s best interest to
remain placed in that home.
The ICWA expert further testified that she had discussed the case at length with an
ICWA advocate for the Sherwood Valley Band of Pomo Indians, where father is a
registered member. It was their opinion that reunification services for father would not
be beneficial to the children, based on the history of the case and the fact that father was
“going off to prison.” As to whether father should have visitation with his children, the
expert testified that “it would be hard for me to say that it was a good thing for the kids to
have to go to prison,” and that “I just don’t think it’s a good idea myself.” When asked
whether the children would be harmed if they were to visit with father, the expert
testified: “Well, I’m not sure, you know, how they—they set up visitations in the prison
system. But I—I believe there is just a lot of, I believe, domestic violence between him
and the mom while they had the children. So I don’t know, you know, if that would be a
good idea for the kids to have to go through that and go down and visit and do all of those
things. I don’t know how to supervise the visits there.”
After the expert testified, the social worker addressed the juvenile court about
recent visitation arrangements for mother and father, stating that “the parents have both
asked to have visitation while they were in jail, especially since [father] is leaving
tomorrow, I believe, for prison. We did attempt to set that up. [The ICWA advocate]
had volunteered to transport the children, but the children did not want to go and we
didn’t see a point in forcing them to have to go to a jail. So that was the status at this
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point. I just wanted them [mother and father] to know because I haven’t been able to talk
to them about that since this occurred.”
Father’s counsel then made a formal request that father receive visitation while in
prison, and she argued there was an insufficient showing that such visits would be
detrimental to the children. The juvenile court and the parties’ attorneys then discussed
the issue, without further sworn testimony. The minors’ counsel represented that taking
the minors to the local jail had been a “challenge” and had “not worked well” because the
visits had taken place through glass, a situation that is “very confusing for children to try
to understand.” County counsel said he was informed by the social worker that father
was “going to be possibly placed about three and a half hours from Ukiah. And due to
the distance—three hours. And due to the distance and the age of the children [then six,
five, and two], we believe visitation would be detrimental because he would be in
prison.” Father’s counsel disagreed, arguing that “the children having to sit in a car for
three hours and visit their father through glass, I’m not sure what the detriment would be
other than them being uncomfortable. Because it’s a prison setting, but certainly they
wouldn’t be at risk of physical harm or emotional harm by doing something that’s just
new and uncomfortable for them.” According to father, the children had previously
visited him when he was incarcerated in Manteca, and they had been transported four-
and-a-half hours for that visit. The social worker stated that it would not be reasonable to
require the children to travel six hours in a single day to visit with father.
The juvenile court ordered that mother receive reunification services but that no
services be offered to father because of the previous termination of reunification services
and his chronic substance abuse. (§ 361.5, subd. (b)(10), (13).) Mother did not appeal,
and father does not challenge the order denying him reunification services. As for the
children’s visitation with father, the juvenile court concluded that it would be
unreasonable to require the children to travel with a social worker or foster parent three
hours each way to have a short visit with father, and it concluded that face-to-face visits
with father while he was in state prison would be detrimental. The court did not,
however, rule out all visitation. It ordered that father could write to the children (through
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the social worker) as often as he wanted, and he would have monthly telephone calls with
the children.
II.
DISCUSSION
As a general rule, a parent whose child has been adjudged a dependent minor shall
receive court-ordered reunification services. (§ 361.5, subd. (a).) Such services need not
be provided, however, when the juvenile court finds by clear and convincing evidence
that certain statutory exceptions (or “bypass provisions”) apply. (Id., subd. (b).) Here,
the juvenile court denied father reunification services based on two bypass provisions
allowing reunification services to be denied when such services have been previously
terminated (id., subd. (b)(10)) and when the parent has engaged in chronic substance
abuse (id., subd. (b)(13)). When reunification services are bypassed, the court “may
continue to permit the parent to visit the child unless it finds that visitation would be
detrimental to the child.” (Id., subd. (f), italics added.) Thus, when a juvenile court
finds, as the court did here, that visits would be detrimental to the child, it must deny
visitation. (Ibid.)
Father contends insufficient evidence supported the finding that it would be
detrimental for the children to be forced to be driven three hours each way to visit father
while he was incarcerated. He argues that this finding was mostly supported by
statements made by the parties’ attorneys rather than by sworn testimony. We are not
persuaded. Not only did father fail to object below on the grounds of lack of sworn
testimony, but also sworn testimony about detriment was presented by the ICWA expert
who testified that visitation was not a “good idea,” an understatement given the children’s
young ages and the undisputed history of domestic violence they witnessed while in
father’s care.
In any event, we would still sustain the juvenile court’s order even if we were to
conclude that there was insufficient evidence of detriment. Father argues that “absent a
showing of detriment” he had a “right” to visitation. He is mistaken. In light of the
bypass of reunification services, the juvenile court retained discretion to deny visitation
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regardless whether there was sufficient evidence of detriment. The word “may” in the
last sentence of section 361.5, subdivision (f) is permissive, meaning the juvenile court
has discretion to permit or deny visitation when reunification services are not ordered.
(In re J.N. (2006) 138 Cal.App.4th 450, 458.) In other words, a right to visitation arises
only when a juvenile court orders reunification services to incarcerated parents under
section 361.5, subdivision (e), because visitation is an essential element of a reunification
plan. (E.g., In re Dylan T. (1998) 65 Cal.App.4th 765, 768, 770-771, 774 [absent certain
circumstances, visitation must be provided to incarcerated parent where reunification
services are ordered unless visits would be detrimental to minor].) But where, as here,
reunification services have been bypassed under section 361.5, subdivision (b)(10)
and (13), the juvenile court retains discretion to deny visitation under section 361.5,
subdivision (f), even in the absence of a finding of detriment, because “visitation is not
integral to the overall plan when the parent is not participating in the reunification
efforts.” (In re J.N., supra, 138 Cal.App.4th at pp. 458-459.)
We cannot conclude that the juvenile court abused its discretion in denying face-
to-face visitation while father was incarcerated. Ordering the children to travel three
hours each way to visit their father in state prison can rationally be considered to be
detrimental. And the court did not deny all contact between father and the children. It
permitted monthly phone calls and unlimited contact by mail during father’s
incarceration. The court’s order warrants a “very high degree of deference,” and in our
view it does not exceed the bounds of reason. (In re J.N., supra, 138 Cal.App.4th at
p. 459.) “Because [father] failed to show the court erred in denying [him] visitation
under the circumstances of this case, [his] attack fails.” (Id. at p. 460.)
III.
DISPOSITION
The juvenile court’s order is affirmed.
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_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Dondero, J.
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