Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Nos. DP017828 & DP017829 Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
RYLAARSDAM, ACTING P. J.
A.L., father of now eight-year-old B.L. and six-and-a-half-year-old E.L., appeals from an order reducing his visitation from once a month to once every three months, claiming there was insufficient evidence to support it. We disagree and affirm.
FACTS
Orange County Social Services Agency (SSA) originally took the children into custody, along with their then almost 10-year-old half-sister, A.G., after their mother (who is not a party to this appeal) was arrested for shoplifting. Father had been arrested a year earlier on charges he had sexually molested A.G.; he remained in jail for the entire proceeding.
SSA reports showed B.L. has Down’s Syndrome, is mentally retarded, and was not verbal. E.L. has Cerebral Palsy and impaired motor function. He wears orthopedic braces and requires assistance with daily activities such as getting dressed. His speech was not at the normal level. But he was “bright and functioning well.” Both children’s mental and emotional health was good.
Before the jurisdiction/disposition hearing the children had a short visit with father at the jail, speaking to him through glass on a telephone. Although both children seemed happy to see father, E.L. was shy about speaking after he picked up the telephone and did not reply when father talked to him. When father called his name, B.L. held the telephone and put his hand on the glass in response to father doing the same. The children then got restless, telling father goodbye after about 20 minutes. When asked by the social worker if they wanted to leave, they agreed.
The original case plan granted father two monitored visits per child a month at the jail. But apparently there were no visits up to the six-month review hearing. The SSA report for that hearing stated father had said that even though he missed seeing the children he thought it was best if they did not visit while he was in jail; he would rather have pictures of them. Their last visit was difficult for them, primarily because of their disabilities, and “was not very productive.” Nevertheless SSA recommended father have two visits per child per month, if they could “reasonably travel to and from the visit without undue discomfort...” or disruption of their schedules.
At the six-month review hearing father’s lawyer reported father had told him the social worker had informed him visits were not in the children’s best interest or “productive” and he just “[went] along” with her. But he ‘“absolutely’” wanted visitation once a week and at minimum two times a month. The children’s counsel stated she thought each child should have one, separate visit per month, “given the[ir] physical and mental limitations, ” and if they went well, SSA would be authorized to increase the number.
The court noted the difficulties of visitation with parents in custody based on the children’s anxiety caused by difficulty travelling to and from the jail, the long wait time to get in, plus the “many distractions and so many other people” at the jail, in addition to the presence of “germs, ” regardless of whether a child is disabled. Based on those factors, and not the children’s disabilities, the court ordered one visit a month per child. Because father’s counsel objected to this order, the court continued the hearing for a week to allow her to confer with father.
In an addendum to the report SSA the social worker denied “pressur[ing]” father. When she asked about his visit he told her it was difficult because of the children’s disabilities and the requirement they speak by telephone through glass. When she offered to provide pictures he agreed. Then by the time of the hearing apparently father “changed his mind.” SSA agreed to arrange for monthly visits with each child. Pursuant to stipulation, the court then ordered two visits, with a monitor transporting the children, pending a report by SSA. The court ordered the jail to give “‘waiting-line’ priority.”
After completion of the report and pursuant to stipulation the court ordered father to have visits two times a month while he remained in custody, unless a therapist determined the visits would harm the children. SSA was also ordered to try to schedule additional make up visits.
The ensuing visits that occurred during the entire proceeding followed the same pattern as the original one, lasting only 15 or 20 minutes before the children became disinterested, got restless, and wanted to leave. B.L., because of the difficulty he has speaking, talked very little, during which time E.L. walked around. E.L. did not want to talk much and had difficulty walking to the visiting area. On one visit he fell in the waiting area, although he was not hurt much.
The 12-month review report described father’s 10 visits. The visitation schedule in the plan attached to the report provided for monthly visitation but also stated visitation would occur twice a month for each child, every other week. At the hearing, the court ordered another six months of services and incorporated the visitation schedule into the order. Two months later the children were returned to mother’s custody for a 60-day “trial release.”
The report for the 18-month review and permanency hearing, which described five visits, stated father was authorized to visit once a month. The visits progressed the same as the previous ones. SSA recommended father’s services be terminated, due to his continued incarceration and failure to work his plan. No mention was made of visitation and the box for visitation in the stipulation signed by the parties was blank.
The court placed the children with mother, ordered family maintenance and terminated father’s services. The case plan recommended monthly visitation to father while incarcerated if travel to and from the visit was not unduly uncomfortable and did not interfere with the children’s normal schedule. A case plan review hearing was set for two weeks later.
On the day of the hearing all parties except father signed a stipulation providing father visitation with each child twice a month; the children subsequently withdrew from the stipulation. Father’s lawyer agreed with twice monthly visits but wanted make-up visits because he had been seeing the children only once a month. Counsel for the children objected to make-up visits based on the children’s age and medical conditions. She also questioned whether mother was comfortable taking the children to see father the additional times. The court denied the request for make-up visits and set a temporary visitation schedule of one visit per month per child and ordered SSA to report back on visitation.
The report summarized the prior visits, noting the children’s physical difficulties. E.L. fell often and needed help with walking. B.L. had trouble speaking to father through the glass and using the telephone so father tried to talk more to E.L. who was hesitant to speak with him. The children lost interest soon after arrival and, although they seemed happy to see father, they were also happy to leave.
At the hearing there was disagreement about whether the current visitation plan was once a month per child as the court stated or twice a month per child, as father asserted and sought. SSA argued once per month was sufficient and mother agreed, stating she did not want make-up visits.
The court ordered the children could visit together once every three months while father was “in local custody.” Basing its order on the children’s best interest, the court pointed out the difficulty of waiting in line to get into the jail for everyone and how much more so it is for these children with their disabilities. It also refused to order make-up visits.
DISCUSSION
Visitation is vested in the discretion of the court. It is required to balance the interests of the children against those of the parents and in so doing may determine the terms and frequency of the visits. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) We reverse only if the court abused its discretion. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.)
Father argues that Welfare and Institutions Code section 362.1, subdivision (a)(1)(A) (all further statutory references are to this code) mandates visitation unless it would be detrimental to the child’s safety. But that section applies to an “order placing a child in foster care[] and ordering reunification services....” (§ 362.1, subd. (a).) Because the children are now in the custody of mother and not in foster care, and reunification is no longer the goal, the court has broad discretion to determine whether or not any services need be provided, in view of the children’s best interests. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 651-652.) In addition, the discussion of the potential applicability of sections 366.22 and 364 is irrelevant. Rather, the questions are whether the court acted within its discretion and in the best interest of the children in reducing visitation. The record demonstrates the court did not err.
Father asserts there was no evidence the visits were detrimental or that the children’s safety was put at risk. But that is not the test. And there is no doubt the children struggled with the visits, E.L. due to his physical limitations and B.L. because of his difficulty speaking over the telephone. The visits lasted only 15 to 20 minutes and the children were always happy to leave. Thus the visits were only marginally useful. Given this fact, we reject father’s claim the reduction puts the children’s relationship with him at risk. There is no evidence there would be any difference in the relationship with fewer visits.
Father points out that nothing in SSA’s reports mentioned the children having difficulty waiting in line. But the judge was not limited to information in the reports. The record reflects she knew of this condition, having previously ordered the jail to give the children “‘waiting-line’ priority.” The parties did not dispute her knowledge at that time or argue such an order was not necessary.
Father also complains the order “defied the recommendations” of SSA and counsel for both mother and the children, highlighting a statement by SSA at the case plan review hearing that monthly visits “seemed to work.” The trial court is not bound by the report or opinions of the parties. (See Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.)
Moreover, although the children’s counsel did ask the court to limit visitation to once a month based on their age and physical limitations, and mother’s difficulty in transporting them to the jail, this statement was made after an argument that, based on the pending charges of sexual molestation of the children’s half-sister, father “has been fortunate to have any visitation at all” and on that basis, “it’s reasonable to order no visitation....” She continued, “if the court is going to order the father any visits, I’m not sure it’s in the children’s best interest.” This is not an endorsement of monthly visitation.
Father relies on In re Elizabeth M. (2008) 158 Cal.App.4th 1551, where we reversed a substantial reduction in a father’s visitation. (Id. at p. 1560.) Although there is a superficial similarity, the case is inapt. There the reduction was based on a stipulation that covered several issues including visitation. All counsel signed the first page of the stipulation but the reduction in visitation was made by handwritten interlineations on a later page that was not signed. At the hearing the court adopted the provisions in the stipulation but never discussed visitation.
In reversing the visitation order we rejected the modified stipulation, characterizing it as “suspect” because no one could explain its origin. (In re Elizabeth M., supra, 158 Cal.App.4th at p. 1557.) We also held there was no evidence supporting the reduction. (Id. at p. 1159.) In defending the order SSA relied on reports of problematic visitation earlier in the proceedings rather than the current evidence of successful visits. One piece of this outdated evidence was an occasion where the prison in which the father was incarcerated did not allow a visit because it necessitated additional documentation. (Id. at p. 1158.) But that is quite different from the evidence here detailed above about the difficult and less than satisfactory visits at the jail. In Elizabeth M. we also noted that the father had been “explicitly assured” his visitation would not be reduced absent a noticed motion. (Id. at p. 1557.) Again, not the case here.
Father contends he had no notice of any potential change in visitation and in a footnote suggests the court may have lacked authority to reduce visitation at the case plan review hearing due to lack of notice. Raising an issue in a footnote violates “court rules that require arguments to be contained in discrete sections with headings summarizing the point” (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 160) and we are not required to consider it (ibid.).
Even on the merits, however, we are not persuaded. Father did receive notice. At the 18-month review and permanency hearing after a discussion of visitation the court set a case plan review hearing, ordering SSA to prepare a further report. At that hearing all parties had the opportunity to argue the matter before the court set the schedule.
DISPOSITION
The order is affirmed.
WE CONCUR: BEDSWORTH, J., O’LEARY, J.