Opinion
D059804
10-28-2011
ARTURO M., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. SJ11297B)
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Ana L. Espana, Judge. Petition denied. Stay vacated.
Arturo M. seeks review of juvenile court findings and orders denying family reunification services to him under Welfare and Institutions Code section 361.5, subdivision (b)(11), denying visitation, and setting a hearing under section 366.26 to select and implement a permanency plan for his daughter, A.C. We deny the petition.
Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A.C., born June 2003, is the daughter of Arturo M. and Crystal C. Arturo and Crystal were in a relationship from 2002 to 2006. At various times A.C.'s family included her full sibling, P.M., born May 2004, and half siblings Elizabeth, born September 2001, Lorenzo, born December 2009, and D.C., born April 2011.
A.C. tested positive for tetrahydrocannabinol (THC) at birth. The San Diego County Health and Human Services Agency (Agency) offered voluntary services to Crystal. Crystal agreed to participate in services but did not maintain contact with the Agency.
In 2004 P.M. tested positive for methamphetamine at birth. The Agency detained her in protective custody. Arturo, who was alleged to be P.M.'s father, did not appear for a paternity test and did not seek presumed father status. Crystal did not participate in reunification services. The juvenile court terminated Arturo's and Crystal's parental rights to P.M. in August 2006.
The record indicates the Agency did not take Elizabeth and A.C. into protective custody because they were not in Crystal's care at that time.
The record indicates A.C. was in Arturo's care from when she was three months old until he was incarcerated in 2006. When released from prison in September 2009, Arturo was deported to Mexico. At some point in time not clear from the record, Crystal regained custody of Elizabeth, who had been in the care of her father and other paternal relatives, and A.C., who had been in the care of her paternal grandmother.
In December 2010 the Agency began an investigation into allegations Crystal was pregnant and using methamphetamine, she hit the children and intentionally burned Elizabeth with a hot iron. Elizabeth told the social worker the burn was accidental. The social worker offered voluntary services to Crystal, who agreed to cooperate with the Agency.
On January 17, 2011, nine-year-old Elizabeth died from peritonitis caused by blunt force injuries to her abdomen, resulting in pancreatic hemorrhages. Crystal was arrested and charged with her murder. A.C. had a healed burn in an unusual position on the back of her leg. The Agency detained A.C. and her brother in protective custody, filed dependency petitions on their behalf and initiated a parent search for Arturo.
The Agency located Arturo in Mexico on March 3, 2011. Arturo reported he had been deported because of his criminal history. He acknowledged he was P.M.'s father and did not reunify with her because he was using drugs and "going back and forth to jail." Arturo was sentenced and incarcerated in 2006, 2007 and 2008 on various charges. He said he was unable to locate Crystal during his imprisonment. When he was released from prison, he found Crystal through an online social networking site, and was able to talk to A.C.
Arturo was willing to participate in family reunification services. He enrolled in a parenting class, scheduled a psychological evaluation and agreed to participate in random drug tests. Arturo said he would like to have A.C. in his care when he was more stable, which he estimated would be in a year's time.
A.C.'s younger sister D.C. was born in April 2011. The Agency detained D.C. with A.C. and Lorenzo, who were in the care of an aunt and uncle.
The jurisdictional and dispositional hearings were held on May 19, 2011. Arturo asked the juvenile court to find that he was A.C.'s presumed father because A.C. lived with him from age three months to three years, and he provided a home, food, clothing and medical care, education and emotional support to her.
Arturo does not contest the jurisdictional findings under section 300, subdivisions (b) and (f).
The juvenile court found that Arturo was A.C.'s presumed father and admitted the Agency's reports and attachments into evidence. The juvenile court took judicial notice of P.M.'s dependency file. No other party offered any affirmative evidence or cross-examined the social worker.
The social worker reported that A.C. was traumatized by Elizabeth's death. A.C. said she saw Crystal kick Elizabeth in the stomach on many occasions. Crystal hit A.C. but not to the extent she hit Elizabeth. A.C. remembered that Arturo burned her with a light bulb and hit her in the mouth.
According to A.C.'s psychologist, A.C.'s behavioral and emotional stability depended on her placement in a safe, consistent environment with caregivers she could trust. Her growing attachment to her aunt was the foundation of her current stability. A.C.'s stability would be threatened were she asked to form new attachment relationships at that time. The psychologist said A.C.'s attachment to her younger brother and sister was significant and "should be preserved at all cost."
Arturo said he had not used methamphetamine in more than five years. He denied hitting or burning A.C., and said Crystal was abusive to A.C. When Arturo was released from jail, he noticed burn marks on the back of A.C.'s left thigh and hand. Crystal told him A.C. was burned by a light bulb. Arturo questioned her explanation and said Crystal was a compulsive liar.
The juvenile court found that Arturo's parental rights to P.M. had been terminated and he did not subsequently make a reasonable effort to treat the problems that led to her removal from his care, denied reunification services to Arturo and set a section 366.26 hearing. The juvenile court found that visitation with Arturo would be detrimental to A.C. and prohibited Arturo from visiting or contacting A.C. directly at that time.
Arturo petitions for review of the juvenile court's orders. (Cal. Rules of Court, rule 8.452; § 366.26, subd. (l).) He asks this court to reverse the order setting a section 366.26 hearing, and remand the matter with directions to the juvenile court to enter orders for family reunification services and visitation. On June 24, 2011, this court issued an order to show cause and the Agency responded. This court issued a stay of the section 366.26 hearing on September 7, 2011, and heard oral argument on October 13, 2011.
DISCUSSION
Arturo contends the juvenile court erred when it bypassed reunification services to him under section 361.5, subdivision (b)(11), and set a hearing to select and implement a permanency plan for A.C. under section 366.26. He argues section 361.5, subdivision (b)(11) applies only to the previously custodial parent of the child's sibling, and does not include an alleged father of the sibling, who has no right to custody. Arturo maintains there is not substantial evidence to show he did not make reasonable efforts to treat the problems that led to P.M.'s removal from his care. He also asserts the juvenile court abused its discretion when it denied his request for visitation with A.C.
We conclude that Arturo was a parent within the meaning of section 361.5, subdivision (b)(11), and there is substantial evidence to support the juvenile court's finding that he did not make reasonable efforts to treat the problems that led to P.M.'s removal from his care. We further conclude there is substantial evidence to support the finding that visitation with Arturo would be detrimental to A.C. and in light of this finding, the juvenile court did not abuse its discretion in fashioning its visitation order.
In his response to the writ petition, minor's counsel argues the juvenile court erred when it found that Arturo was A.C.'s presumed father on the ground he cared for her during her first three years and did not consider his subsequent abandonment of her. To the extent counsel raises this issue to show harmless error, we need not consider it because we conclude the juvenile court did not err. (Code Civ. Proc., § 906 [respondent or party in whose favor the judgment was given, may, without appealing from such judgment, request the reviewing court to review the issue to determine whether the appellant was prejudiced by the error]; see In re S.B. (2009) 46 Cal.4th 529, 534 [applying Code Civ. Proc., § 906 in juvenile appellate proceedings].)
II
BYPASS OF REUNIFICATION SERVICES UNDER SECTION 361.5, SUBDIVISION (B)(11)
Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) However, only a mother and a statutorily presumed father are entitled to receive family reunification services. (§ 361.5, subd. (a); 42 U.S.C. § 629a(a)(7); In re Zacharia D. (1993) 6 Cal.4th 435, 451 [only a presumed father is entitled to custody of his child].) The juvenile court has the discretion to order family reunification services to the biological father if it finds that services will benefit the child. (§ 361.5, subd. (a).) An alleged father is entitled only to notice of the proceedings and the opportunity to appear and attempt to change his paternity status. (In re O.S. (2002) 102 Cal.App.4th 1402, 1408.)
To bypass family reunification services to a parent who is statutorily entitled to them, the court must find by clear and convincing evidence that the parent is described by one or more of the provisions in section 361.5, subdivision (b). (§ 361.5, subd. (b)(1)-(15); see also 42 U.S.C. § 671(a)(15)(D).) As relevant here, to bypass family reunification services under section 361.5, subdivision (b)(11), the juvenile court must find that the parent's parental rights were terminated to a sibling or half sibling (sibling) of the child, and the parent has not subsequently made a reasonable effort to treat the problems that led to the sibling's removal from his or her custody. (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393-1394.)
Arturo argues he does not come within the meaning of section 361.5, subdivision (b)(11), because he was merely an alleged father to P.M. He contends the statute applies only to a previously custodial mother or presumed father of the child's sibling. He urges this court not to follow Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586 (Francisco G.), in which the reviewing court held that the predecessor statute to section 361.5, subdivision (b)(11), could be appropriately applied to an alleged or biological father of the child's sibling. (Francisco G., supra, at pp. 596-598 [interpreting § 361.5, former subd. (b)(10)(B)].)
We review questions of statutory construction de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) In construing the language of section 361.5, subdivision (b)(11), we look to the words of the statute to determine legislative intent and to fulfill the purpose of the law. (Gooch v. Hendrix (1993) 5 Cal.4th 266, 282.) We interpret the language in the context of the entire statute and the overarching statutory scheme, and we give significance to every word, phrase, sentence and part of an act in discerning the legislative purpose. (People v. Canty (2004) 32 Cal.4th 1266, 1276.) A. The Legislature Did Not Intend to Limit Section 361.5, Subdivision (b)(11) to the Previously Custodial Parent of the Sibling
A review of the legislative history of section 361.5, subdivision (b)(11), is instructive. At the time Francisco G., supra, 91 Cal.App.4th 586 was decided, the applicable statute provided that reunification services need not be provided to a parent when the court finds:
"That (A) the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent or guardian failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a), or (B) the parental rights of a parent or guardian over any sibling or half-sibling of the child has been permanently severed, and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian." (§ 361.5, former subd. (b)(10), italics added.)
Francisco G. held that, as applied to fathers, the term "parent" in the ambiguous phrase "parental rights of a parent" in section 361.5, former subdivision (b)(10), refers to the father's paternity status in the current dependency case, not to his paternity status in the sibling's dependency case; thus, the bypass provision can be appropriately applied to a father whose rights as a biological or alleged father had been terminated. (Francisco G., supra, 91 Cal.App.4th at p. 598.) The reviewing court also rejected the argument the bypass provision did not apply to a noncustodial parent. (Id. at p. 599.)
Shortly after Francisco G., supra, 91 Cal.App.4th 586 was decided, the Legislature enacted a bill modifying section 361.5, former subdivision (b)(10) in response to the California Supreme Court's decision in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, in which the Court interpreted the "no reasonable effort" prong to apply only to subpart (B) of former section 361.5, subdivision (b)(10). The new provisions, codified at section 361.5, subdivisions (b)(10) and (b)(11), apply the reasonable effort clause to each of the former parts of section 361.5, former subdivision (b)(10), as amended (Stats. 2001, ch. 653, § 11.3, p. 4132.) Similarly, the Legislature clarified that the phrase "that parent or guardian is the same parent or guardian described in subdivision (a)" applies to each of the former parts. (§ 361.5, subd. (b)(10), (11).) Significantly, the Legislature did not incorporate the reference to removal "pursuant to Section 361" in subpart (A) of the predecessor statute in section 361.5, subdivision (b)(11). (173 Assem. J. (2001-2002 Reg. Sess.) p. 5322.)
As enacted, section 361.5, subdivision (b)(11), states family reunification services need not be provided to a parent when the juvenile court finds, by clear and convincing evidence:
"That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent." (§ 361.5, subd. (b)(11).)
We find nothing in the Legislature's enactment of section 361.5, subdivision (b)(11) to indicate it intended to limit the statute's application to previously custodial mothers and presumed fathers. The first prong of section 361.5, subdivision (b)(11) states the court may deny reunification services when "the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a)." The term "this parent" in the phrase "this parent is the same parent" refers to the parent whose parental rights were terminated in the previous dependency proceeding. The term "same parent" designates the parent described by section 361.5, subdivision (a) in the current dependency proceeding. Thus, the phrase serves to narrow the application of section 361.5, subdivision (b)(11) to the parent of the child whose parental rights were terminated in the sibling's dependency proceedings.
For example, if the child had a half sibling on her father's side, and his parental rights had been previously terminated to the half sibling, without the reference to "the same parent", section 361.5, subdivision (b)(11) could be interpreted to apply to the child's mother even though she was not involved in the half sibling's previous dependency proceeding. Although section 361.5, subdivision (b) could fairly be interpreted to apply to the parent whose behaviors were described by one or more of its provisions, other provisions of section 361.5, subdivision (b) explicitly identify a particular parent where otherwise the identity of the parent may be ambiguous. (See, e.g., § 361.5, subd. (b)(6) [applies only to "the offending parent"] & (8) [applies only to "the parent who committed the offense or act"].)
Section 361.5, subdivision (b)(11) does not explicitly address the father's paternity status in the sibling's proceeding. We presume the Legislature was aware of the holding in Francisco G., supra, 91 Cal.App.4th 586 when it enacted section 361.5, subdivision (b)(11). (Adoption of B.C., Jr. (2011) 195 Cal.App.4th 913, 920 [when a statute has been construed by the courts, and the Legislature reenacts that statute without changing the court's interpretation, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute].) Had the Legislature intended to limit the application of section 361.5, subdivision (b)(11) to fathers who were also statutorily presumed fathers of the child's sibling, it would have done so. "If we have failed to discern correctly the Legislature's intent in enacting the statute, that body may clarify the statute accordingly." (Renee J. v. Superior Court, supra, 26 Cal.4th at pp. 748-749.)
We are not persuaded by Arturo's argument that section 361.5, subdivision (b)(11) does not apply to a noncustodial parent of the child's sibling. Arturo interprets the term "removal" in section 361.5, subdivision (b)(11) to mean the taking of the child "from the physical custody of [the parent] with whom the child resides at the time the petition was initiated," as defined in section 361, subdivision (c), and argues a child cannot be "removed" from a noncustodial parent. (See, e.g., In re V.F. (2007) 157 Cal.App.4th 962, 969 [§ 361, subd. (c) does not apply to a noncustodial parent of the child].)
In revising former section 361.5, subdivision (b)(10), the Legislature incorporated the reference to removal under section 361 in section 361.5, subdivision (b)(10), but omitted it in section 361.5, subdivision (b)(11). (See also § 361.5, subd. (b)(3) [referring to the removal of the child under section 361].) When the Legislature has used a term or phrase in one part of a statute but excluded it from another, the term should not be implied where excluded. (People v. Gardeley (1996) 14 Cal.4th 605, 621-622; Ford Motor Co. v. County of Tulare (1983) 145 Cal.App.3d 688, 691.)
The omission from section 361.5, subdivision (b)(11) of any reference to section 361 indicates the Legislature did not intend to limit the application of section 361.5, subdivision (b)(11) to the parent or parents with whom the child resided at the time the proceedings were initiated. In this context, the term "removal" encompasses the continued removal of the child's sibling from the care of his or her parent during the previous dependency proceedings, notwithstanding the parent's previous custodial status. Further, the phrase "that led to the removal of the sibling . . . from the parent" modifies the term "problems," and serves to identify the issues the child's parent has not addressed or resolved from the previous dependency proceedings. (§ 361.5, subd. (b)(11).)
Interpreting section 361.5, subdivision (b)(11) to apply only to previously custodial parents would result in absurd consequences. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1162 [courts must adopt the meaning that conforms to the spirit of the statutory scheme and reject interpretations that would result in absurd consequences].) Such an interpretation would delay permanency for the child of a noncustodial parent who had been unable or unwilling to reunify with the child's sibling but not for a child of a previously custodial parent who was unable or unwilling to reunify with the child's sibling. This would lead to an inconsistent application of the bypass provision depending on the custodial status of the parent at the time the sibling's dependency proceeding was initiated, notwithstanding the fact that neither parent was able to reunify with the sibling and each parent's circumstances had merited termination of his or her parental rights to the child's sibling.
Arturo argues it is fundamentally unfair to apply section 361.5, subdivision (b)(11) to a father who was merely an alleged father in the sibling's dependency proceedings in which his parental rights were terminated. The Agency acknowledges, and we agree, that due process concerns may exist when the alleged father did not appear or assert paternity in the sibling's previous dependency proceedings, or is not in fact the sibling's biological father. Although the juvenile court should proceed with caution when applying section 361.5, subdivision (b)(11) to a parent who was an alleged father in the previous proceedings, none of those concerns are present here.
Arturo also argues that a parent who has never received court-ordered reunification services cannot succeed in challenging a recommendation to bypass services under section 361.5, subdivision (b)(11). His argument implicitly assumes that court-ordered reunification services are required to avoid the application of section 361.5, subdivision (b)(11). Nothing in the statutory language indicates subsequent efforts are limited to court-ordered reunification services. A parent may take independent steps to remedy his or her problems before, during and after any dependency proceeding.
The record shows that Arturo and Crystal were involved in a relationship before, during and after her pregnancy with P.M. Crystal did not allege another man could be P.M.'s father or acknowledge she had sexual relations with any man other than Arturo in the timeframe surrounding P.M.'s conception. Arturo was aware of P.M.'s birth and visited her at the start of the dependency proceedings. He had notice of the proceedings and was represented by counsel. Arturo had the opportunity to establish his paternity status but did not appear for court-ordered paternity testing.
When contacted by the social worker in A.C.'s case, Arturo acknowledged he was P.M.'s father and his parental rights to her had been terminated. He admitted he did not participate in P.M.'s dependency proceedings because he was using drugs and in and out of jail. Under these circumstances, there are no due process concerns that would render the application of section 361.5, subdivision (b)(11) fundamentally unfair to Arturo. B. There Is Substantial Evidence to Support the Finding that Arturo Did Not Make Reasonable Efforts to Treat the Problems that Led to P.M.'s Removal
Arturo argues there is not substantial evidence to support the finding that he did not "subsequently made a reasonable effort to treat the problems" that led to P.M.'s removal from his care. (§ 361.5, subd. (b)(11).) Those problems included P.M.'s prenatal exposure to methamphetamine, Arturo's and Crystal's methamphetamine use, Arturo's criminal activities, and his unwillingness or inability to protect P.M. from the risks in her environment.
The reasonable effort prong of section 361.5, subdivision (b)(11) mitigates an otherwise harsh rule that would allow the court to deny services simply on a finding that a parent's parental rights had been terminated to the child's sibling when the parent had subsequently made an effort to correct the problems that led to the sibling's removal. (Cf. In re Harmony B. (2005) 125 Cal.App.4th 831, 843 [construing identical language in § 361.5, subd. (b)(10)].) The reasonable effort prong allows "a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings." (In re Harmony B., supra, at p. 843.) When a parent has failed to reunify with the child's sibling, the juvenile court should not "reflexively deny that parent a meaningful chance" to reunify with that child in a subsequent proceeding. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
We review an order denying reunification services under section 361.5, subdivision (b), for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) "In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence." (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) The party challenging the ruling of the trial court has the burden to show the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
P.M. was removed from parental custody in May 2004. By his own admission, Arturo continued to use drugs after her removal. He did not make any effort to participate in services to reunify with her. In 2005 Arturo pled guilty to a charge stemming from an arrest for possession of a controlled substance and threatening a crime with the intent to terrorize. In 2006 he was convicted of driving under the influence causing bodily injury and hit and run. In 2007 he received a two-year prison sentence for assault with a deadly weapon. In 2008 he was convicted of receiving stolen property and was sentenced to three years in prison. Arturo was incarcerated until September 2009. He was then deported to Mexico.
When the social worker contacted Arturo in March 2011, Arturo asserted he no longer used drugs and had not used methamphetamine in more than five years. He said it would take him about a year to be sufficiently stable to care for then seven-year-old A.C., whom he had not seen in three or four years.
Although Arturo asserted he no longer used drugs, he did not present evidence to show he had successfully completed a substance abuse treatment program, and the juvenile court could determine his assertion was not credible. Further, there is no evidence to show that Arturo made any effort to gain the skills he would need to promote A.C.'s physical and emotional well-being. Although he had been out of custody for 18 months when contacted by the social worker, he acknowledged it would take him another year before his circumstances were sufficiently stable to care for A.C.
Arturo did not provide a safe, protective environment to A.C. when he lived with her. (See § 300.2 ["The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child"].) The record indicates Arturo continued to engage in the same activities that led to P.M.'s removal and exposed A.C. to unsafe conditions. Arturo acknowledged he knew Crystal was physically abusive to A.C. and used methamphetamine. After his deportation, Arturo did not seek to ensure A.C. was living in a safe, stable environment. He could have done so by contacting relatives for assistance or asking the Agency to check on her welfare. As a result of Arturo's drug use, crimes, indifference to P.M.'s dependency proceedings, and unwillingness or inability to protect his children, A.C. was exposed to a devastatingly violent environment in her mother's home.
Although Arturo was willing to participate in family reunification services, the record shows that he made little, if any, effort to treat the problems that led to P.M.'s removal from his care during the years between P.M.'s removal and A.C.'s dependency case. The record supports the finding that it is not in A.C.'s best interests to grant reunification services to Arturo. (§ 361.5, subd. (c).) There is substantial evidence to support the juvenile court's denial of reunification services to Arturo under section 361.5, subdivision (b)(11).
At oral argument, Arturo argued he made a reasonable effort to treat the problems that led to P.M.'s removal from his care because he engaged in services in A.C.'s case. The record shows that Arturo was amenable to services and was scheduled to begin a parenting class and participate in a psychological evaluation. He also agreed to undergo random drug tests. Notwithstanding Arturo's willingness to participate in services in A.C.'s case, there is substantial evidence to support the trial court's finding that Arturo did not make a reasonable effort to treat the problems that led to P.M.'s removal from his care in June 2004. As discussed above, the record shows that Arturo did not make a reasonable effort to address those problems until May 2011, almost seven years later.
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III
THE COURT DID NOT ABUSE ITS DISCRETION WHEN IT FOUND THAT VISITATION WITH ARTURO WOULD BE DETRIMENTAL TO A.C.
When reunification services have been denied to a parent, the court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. (§ 361.5, subd. (f).) Arturo contends the juvenile court abused its discretion when it found that visitation would be detrimental to A.C. at that time and entered an order denying visitation and direct telephone contact. Arturo argues it is in A.C.'s best interests to establish a relationship with him and maintain a connection with her paternal relatives in view of the loss of her sister and mother.
We review the court's finding that visitation would be detrimental for the child for substantial evidence. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 839.) Notwithstanding a finding of detriment, the court has wide discretion to fashion a visitation order in the best interests of the child. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352.)
The juvenile court reasoned visitation would be detrimental to A.C. in view of the lack of contact between A.C. and Arturo since approximately 2006, her belief he had physically abused her and her emotional fragility. The juvenile court acknowledged if A.C. became stronger and more emotionally stable, some contact with Arturo might be in her best interest. The juvenile court permitted Arturo to send letters, cards and gifts to the social worker, who would determine with A.C.'s psychologist whether A.C. was emotionally ready to have some contact with her father.
There is substantial evidence to support the juvenile court's finding that visitation with Arturo would be detrimental to A.C. At the time of the dispositional hearing, A.C. was almost eight years old. She had not seen Arturo since she was three or four years old. A.C. was traumatized by her sister's death, and had experienced years of neglect, parental substance abuse and violence, and parental absence due to criminal activity. She believed that Arturo had hit her in the face and burned her with a light bulb. A.C.'s psychologist said A.C.'s security and stability would be threatened were she asked to form new attachment relationships at that time, and no steps should be taken that would impede her growing attachment to her aunt.
The juvenile court balanced a number of interests, including A.C.'s interest in knowing her father, her current circumstances and emotional needs, and Arturo's interest in his relationship with his daughter. In view of its finding that visitation with Arturo would be detrimental to A.C., the juvenile court properly exercised its discretion in fashioning a visitation order that protected A.C. from emotional distress and enhanced her sense of security in a new home, and allowed Arturo to contact her through letters, cards and gifts, when appropriate.
DISPOSTION
The petition is denied. The stay issued September 7, 2011 is vacated.
O'ROURKE, J. WE CONCUR:
NARES, Acting P. J.
MCINTYRE, J.