Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ112494 Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
Appellant J.A. (father) is the father of D.A. (the child). After 12 months of reunification services, the juvenile court ordered a permanent plan of guardianship for the child. The court also ordered visitation to be reasonable, as directed by the legal guardian. The court then terminated the dependency. On appeal, father argues that the court abused its discretion when it terminated its jurisdiction rather than maintaining its jurisdiction to oversee visitation and ensure that it would occur. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 19, 2008, the Riverside County Department of Public Social Services (the department) filed a Welfare and Institutions Code section 300 petition on behalf of the child, who was seven years old at the time. On March 4, 2008, the department filed an amended petition. The amended petition alleged that the child came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petition included the allegations that the child suffered serious harm due to abuse by her stepmother, and father knew or reasonably should have known that the stepmother was disciplining the child inappropriately, but failed to protect her. Father had previously been granted full legal and physical custody, after a prior dependency case regarding the child was terminated. The whereabouts of the child’s mother, who is not a party to this appeal, were unknown.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Since mother is not a party to this appeal, we will not discuss her in this opinion any further.
At the detention hearing, the court placed the child in the temporary custody of the department and detained her in foster care.
Jurisdiction/disposition
In a jurisdictional/dispositional report filed on March 7, 2008, the social worker recommended that the child be declared a dependent of the court. The social worker interviewed father, who denied the allegations in the petition. Father maintained that his wife, the stepmother, was not capable of harming the child since she was “‘not that kind of woman.’”
At a contested hearing on April 10, 2008, the court declared the child a dependent of the court and removed her from father’s custody. The court ordered family maintenance services for father not to exceed 12 months. The court also authorized extended day visits for father.
Six-month Review
In a status review report filed on September 22, 2008, the social worker recommended that father be provided with six more months of services. The social worker also reported that the child had been placed in the home of the maternal grandparents on April 10, 2008. As to visitation, father spoke with the child approximately three times a month, and he had seen the child once during this reporting period, when the maternal grandmother traveled to his area for personal business. The maternal grandmother lived in Coarsegold, California, which is several hours away from where father lived. Father said he was willing to do anything to reunify with the child, but he continued to deny his wife’s abuse of the child. He also said he did not visit the child more often because “‘it’s too far’” and “‘gas is expensive.’”
At a hearing on October 6, 2008, the court continued father’s services.
12-month Review
The social worker reported that the maternal grandparents informed the department they would no longer be able to have the child in their care, since they were relocating to Sonoma County. Furthermore, the maternal grandmother said she wanted to be a grandmother, not a mother, and that she could no longer provide the child with the care that the child needed. However, friends of the family, Mr. and Mrs. J., were willing to have the child placed with them, and they were even willing to adopt her. Since they lived in Indiana, the court authorized an ICPC (Interstate Compact on Placement of Children).
In January 2009, Mrs. J. moved into the maternal grandparents’ home for a prolonged vacation and to assist with the care of the child. Mrs. J. was willing to reside with the maternal grandparents while awaiting ICPC approval. She wanted to utilize the time to bond with the child, hoping she could eventually adopt her.
The social worker reported that father visited three times with the child during this reporting period. The child was excited to see him. However, the child’s behavior after the visits was alarming. She appeared to regress, and she had trouble following simple directions and falling asleep at night. She also needed constant reassurance for days following visits with father, and she appeared “very uneasy, aloof, and detached.” Father maintained telephone contact with the child about one to two times a week. However, the telephone conversations were very brief and appeared to be centered on Father and not the child.
In an addendum report filed on May 15, 2009, the social worker reported that father had not visited the child since the last hearing. During his last visit on March 21, 2009, he told Mrs. J. that he knew he could not provide the child with the permanency and stability she needed. The social worker additionally reported that the ICPC with the State of Indiana was denied, based upon one negative reference letter. In addition, the home study indicated that Mr. J.’s bipolar disorder would impair his childrearing abilities. Otherwise, the home study was a very positive report. The social worker thus questioned the denial, and the department started the process of appealing the denial. Because adoption was not feasible due to the denial, legal guardianship was the next best permanent plan. Mrs. J. was willing to become a legal guardian. The social worker recommended that a section 366.26 hearing be set and that reunification services be terminated.
At the hearing on May 21, 2009, the court found that father had failed to make substantive progress in his case plan and ordered services terminated. The court then set a section 366.26 hearing.
Section 366.26 Report and Hearing
The social worker filed a section 366.26 report on September 4, 2009, and recommended a permanent plan of legal guardianship. The social worker reported that visitation with father throughout the dependency had been very inconsistent and sporadic. At the last hearing on May 21, 2009, the court ordered visitation to be once a month. Father had maintained more regular contact by telephone up until the last hearing on May 21, 2009. Prior to the hearing, he was calling the child three to four times a month. However, after the hearing, the calls dwindled to approximately once a month. The social worker recommended that visitation with father be terminated, as “it would continue to cause [the child] worry and uncertainty about [the child’s] future.” The social worker also recommended that all telephone contact occur only with the child’s consent.
The social worker further reported that the child was doing well in her placement. She and Mrs. J. had a strong bond, and the joy the child felt with being a part of a family was obvious.
The section 366.26 hearing was held on September 21, 2009. The department submitted on the social worker’s report and recommended that the dependency be terminated and that the court grant legal guardianship to Mrs. J. No witnesses testified. The court found that termination of parental rights would be detrimental to the child because she was living with a foster parent who was unable to adopt her because of exceptional circumstances, but the foster parent was willing and capable of providing her with a stable and permanent environment. The court also found that removal of the child from the foster parent would be detrimental to the child. The court appointed Mrs. J. legal guardian of the child and ordered visitation for the parents “to be reasonable, as directed by the legal guardian.” The court then ordered the dependency to be terminated.
ANALYSIS
The Court Did Not Abuse Its Discretion When It Terminated Its Dependency Jurisdiction
Father claims that the juvenile court abused its discretion when it terminated its dependency jurisdiction rather than maintaining jurisdiction in order to oversee visitation. Father relies solely upon In re K.D. (2004) 124 Cal.App.4th 1013 (K.D.), in support of his argument. K.D. is inapposite.
A. Standard of Review
A reviewing court will not disturb a lower court’s ruling in a dependency proceeding unless “‘“the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
B. The Issue Has Been Waived
Following establishment of a legal guardianship, the juvenile court may continue jurisdiction over the child as a dependent child of the court or, alternatively, it may terminate dependency jurisdiction. (§ 366.3, subd. (a); K.D., supra, 124 Cal.App.4th at p. 1019.) “If dependency jurisdiction is terminated[, ] the court retains jurisdiction over the child as a ward of the court as authorized by section 366.4 [citation], but it no longer holds ongoing review hearings.” (K.D., at p. 1019.)
In K.D., the juvenile court found that the beneficial parental relationship exception to the termination of parental rights applied, under former section 366.26, subdivision (c)(1)(A), and established a permanent plan of guardianship. (K.D., supra, 124 Cal.App.4th at p. 1018.) The court subsequently learned that the foster father planned to move to Ohio. (Ibid.) At a hearing on the guardianship, the social worker recommended that the child have contact with the mother and grandmother at least every three months. (Ibid.) The court found it would be detrimental to remove the child from the foster father’s care, ordered supervised visitation to occur at least twice a year, and ordered the foster father to bring the child to California for the visits. (Ibid.) The court appointed the foster father as the child’s guardian and terminated its jurisdiction. (Ibid.)
On appeal, the mother in K.D. argued that the juvenile court should have maintained jurisdiction so it could oversee visitation. (K.D., supra, 124 Cal.App.4th at p. 1018.) The appellate court found that the argument was waived since the mother had failed to raise it below. (Ibid.) Notwithstanding the waiver, the appellate court decided to exercise its discretion to consider the issue “because the court’s order terminating its dependency jurisdiction [was] fatally inconsistent with its finding that it was in K.D.’s best interest to maintain the parental bond and with its order that visits occur at least twice each year.” (Id. at pp. 1018-1019.)
In the instant case, father failed to raise the argument below that the juvenile court should have maintained its jurisdiction to oversee visitation. Thus, the argument is waived. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
To the extent that the court in K.D. still decided to consider the issue in that case, K.D. is factually distinguishable. The K.D. court exercised its discretion only because it found the juvenile court’s order terminating jurisdiction to be “fatally inconsistent” with its finding that the beneficial parental relationship exception applied and its visitation order. (K.D., supra, 124 Cal.App.4th at pp. 1018-1019.) The court in the instant case did not apply the beneficial parental relationship exception and, thus, never made a finding that it was in the child’s best interest to maintain the parental bond.
C. There Was No Abuse of Discretion
In any event, we conclude that the court here did not abuse its discretion in terminating its dependency jurisdiction rather than maintaining it to monitor visitation. The appellate court in K.D. specifically concluded that the juvenile court “was obligated to maintain dependency jurisdiction and hold periodic review hearings to monitor whether regular visitation was occurring.” (Id. at p. 1019.) However, such obligation was based on the juvenile court’s finding that the beneficial parent relationship exception to the termination of parental rights applied. (Ibid.) The court stated that, “[b]y finding the exception to adoption applied and ordering regular visitation, the court had determined that preserving K.D.’s relationship with the mother was in his best interest.” (Ibid.)
In contrast, as stated above, the court here never applied the beneficial parent relationship exception to the termination of parental rights nor did it ever determine that preserving the child’s relationship with father was in her best interest. Father asserts that the court clearly believed continued visits between him and the child “were of value, ” since it ordered reasonable visitation. Even so, a finding that visitation is “of value” is nowhere near a determination that parental rights cannot be terminated because “severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
We conclude that the court did not have an obligation to maintain its dependency jurisdiction to oversee visitation. Thus, the court did not abuse its discretion in terminating jurisdiction.
DISPOSITION
The order is affirmed.
We concur: RAMIREZ, P. J., RICHLI, J.