Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ08009298
Marchiano, P.J.
Defendant T.G. is the mother of 10-year-old M.B., a female dependent child of the juvenile court. Mother appeals from an order, entered after a hearing under Welfare and Institutions Code section 366.26, which implements legal guardianship as the permanent plan for M.B. Mother contends that the juvenile court’s visitation order improperly delegates authority over visitation to the legal guardians. Mother also contends the court erred by finding that respondent Alameda County Social Services Agency (Agency) provided her with reasonable services. We affirm because the visitation order is not an improper delegation and there is substantial evidence Mother was offered reasonable services.
This is the third appeal in this dependency case.
I. FACTS
A. Background
We present the background facts from three components: (1) the first appeal, from the jurisdictional and dispositional findings; (2) the second appeal, from the findings and orders from the six-month review hearing; and (3) a petition for extraordinary writ following the 12-month permanency hearing.
1. In the first appeal in this matter, we affirmed the jurisdictional and dispositional findings and orders of the juvenile court. (In re M.B. (July 14, 2009, A121928) [nonpub. opn.].) We restate the facts from our prior opinion in the first appeal.
“The Petition. On March 13, 2008, [the Agency] filed a dependency petition alleging that Mother had failed to protect M.B., then eight, from serious physical harm or illness or the substantial risk thereof. (Welf. & Inst. Code, § 300, subd. (b).)
“Subsequent statutory references are to the Welfare and Institutions Code.
“Specifically, the petition alleged, inter alia, that: Mother had used excessive physical discipline against M.B. on several occasions; Mother is developmentally delayed and has failed to adequately supervise M.B.; Mother has engaged in inappropriate sexual behavior in M.B.’s presence or when she was ‘close by’; M.B. reported that Mother’s boyfriend, R., had hit M.B.; and Mother ‘has limited judgment as to what is appropriate parental conduct’ toward M.B. and ‘has significant judgment issues regarding males she may encounter.’
“The Detention Report. On March 14, the Agency filed a detention report recommending that M.B. be detained. The Agency reported that Mother was receiving services from Regional Center Family Services (Regional Center), but was not cooperating with Regional Center. The services were not effective in resolving the problems of parental judgment and physical abuse. Mother had been staying at a homeless shelter in the Fall of 2007. The shelter informed the Agency that Mother had ‘ongoing conflict’ while staying there, and had hit M.B., cursed at her, and pulled her hair.
“Mother received assistance in obtaining an apartment. The Regional Center informed the Agency that Mother ‘had been seen having sex with the groundskeeper at her apartment unit and having sex at Big Lots in the presence of’ M.B. The Regional Center also stated that Mother was not able to parent M.B.
“Big Lots is a store in San Leandro.”
“Mother denied hitting M.B. and having sex in her presence. M.B. was not doing well in school, but Mother denied this.
“In the past, Mother had shown poor judgment regarding men and ‘may need assistance with determining who should be around’ M.B. Mother ‘did not appear to understand the concept of asking for help.’
“On March 14, the juvenile court ordered M.B. temporarily detained pending a contested detention hearing.
“The Contested Detention Hearing. The court held the contested detention hearing on March 17. Agency caseworker Katherine Moore testified that M.B. told her R. had hit her and she didn’t want to be around him. Moore also testified that a Regional Center worker told her Mother could not parent M.B. Dee Dee Logan, Mother’s parenting advocate at Regional Center, told Moore that she took Mother and M.B. shopping at Big Lots. Mother disappeared for 20 minutes and came back ‘reeking’ of a ‘sexual odor.’ The homeless shelter reported Mother used excessive physical discipline. M.B. told Moore that Mother had pulled her hair. [Fn. omitted.]
“Logan testified. She provided parental education to Mother. On M.B.’s birthday, Logan took her and Mother shopping at Big Lots. Mother said she had to go to the bathroom, and disappeared for at least 15 minutes. She returned with a new odor about her, ‘pungent and probably sexual.’ Logan had to drive Mother and M.B. home with the windows down. An older man had been with Mother in the same aisle of the store. When Logan asked Mother what she did in the bathroom, Mother replied: ‘Hee, hee, hee.’
“Logan also testified that, contrary to Logan’s instructions, Mother took M.B. to a park at night and stayed too long after dark. On one occasion, Logan went to the park to retrieve M.B., who would not get up off the ground.
“Logan also testified that Mother told her that R. hit M.B. with a belt in December 2007.
“Mother testified and denied that R. struck M.B. Mother also claimed she did not ‘know anything about Big Lots, ’ and denied having sexual activity there. Mother denied striking M.B. or pulling her hair.
“The juvenile court ordered M.B. detained, finding a prima facie case that continuing M B. in Mother’s home posed a substantial danger to her physical and emotional health.
“Jurisdictional Report. In the jurisdictional report, filed March 26, the Agency recommended out-of-home placement. The jurisdictional report noted that M.B. had told the caseworker that Mother had hit her. M.B. did not wish to return to Mother’s care. In September 2007, another boyfriend of Mother, A., had touched M.B. inappropriately. Mother was present and made fun of M.B. and laughed. The Agency reported that Mother is mentally challenged, developmentally disabled, has poor impulse control, and regularly drinks alcohol. She has a history of aggressive behavior and physical abuse of M.B. She has poor judgment skills regarding male friends. Mother ‘has demonstrated for many years an inability to parent safely without 24-hour supervision.’
[¶]... [¶]
“Dispositional Report. The dispositional report, filed April 30, noted that M.B. had ‘adamantly’ refused visits with Mother. Mother refused to begin working on her case plan, and continued to deny hitting M.B. or pulling her hair. Mother has ‘poor parenting judgment, anger management issues and she appears not to have an ability to understand how these issues impact’ M.B.
“The court held a combined jurisdictional/dispositional hearing on May 1. Mother was present. The parties agreed to submit the matter on the reports, with Mother’s counsel asking the court to take judicial notice of the testimony at the contested detention hearing. No party called witnesses. After brief oral argument, the juvenile court found that the allegations based on section 300, subdivision (b) were true.
[¶]... [¶]
“The court proceeded with the dispositional hearing [on July 23], heard brief oral argument, and ordered M.B. removed from the physical custody of Mother. The court found that there was clear and convincing evidence that remaining in Mother’s home would ‘cause a substantial danger to the physical health, safety, protection [and] physical or emotional well-being’ of M.B. The court ordered M.B. placed in her foster home. The court ordered the Agency to arrange for visitation between M.B. and Mother ‘as frequently as possible consistent with [M.B.’s] well-being.’...”
2. In the second appeal in this matter, we affirmed the findings and orders from the six-month review hearing. (In re M.B. (Oct. 27, 2009, A123931) [nonpub. opn.].) We restate the facts from our prior opinion in the second appeal.
“The six-month review hearing was set for January 12, 2009. In its report prepared for that hearing, the Agency recommended another six months of family reunification services. The Agency reported that Mother had been involved in a domestic dispute with her live-in boyfriend on November 18, 2008, and was arrested for assaulting the boyfriend with a metal pipe. As a result of the incident, Mother had moved in with her grandmother and the Regional Center ordered her to attend more extensive anger management/domestic violence classes. The Agency reported that Mother had not been in close contact with her social worker and was only in minimal compliance with her reunification case plan. Mother had not consistently attended anger management sessions and had yet to begin parenting classes.
“Subsequent dates are in 2009 unless otherwise indicated.”
“Mother ‘has expressed her desire to reunify’ with M.B., but ‘does not understand or acknowledge why [M.B.] is in the foster care system.’ Mother understands that reunification requires her to actively work on her case plan and learn to manage her anger, but she ‘has difficulty understanding and acknowledging why [M.B.] has been taken out of her care.’ She ‘remains angry’ and communication with her is ‘difficult.’
“With regard to visitation, the Agency reported that it had scheduled an initial visit between Mother and M.B. on December 18, 2008. But this visitation apparently never took place. Mother had ‘only two phone contacts’ with M.B. during the six-month review period. One of those calls ‘resulted in [M.B.] crying profusely.’ The social worker asked Mother what had happened, and Mother admitted she had asked M.B., ‘Why did you tell people I hit you?’ The Agency reported that Mother ‘inappropriately used interrogation as her initial approach during [the two telephone] contacts.’ M.B. ‘has since then refused to have any contact or visits with her mother.’
“The Agency recommended that reunification at present would be detrimental to M.B., because Mother had not made substantial effort to comply with her case plan, including addressing her anger management and domestic violence issues. M.B. continued to refuse contact ‘after [Mother] repeatedly questioned [M.B.] about the allegations in the petition.’ The Agency recommended that Mother ‘must agree to engage in appropriate conversation with [M.B.], and [that] discussions of the allegations with [M.B. are] not permitted.’
“M.B. also told her social worker that Mother ‘is mean, ... always yelled at me, and always gave me a whoopin.’ ”
“At the January 12 review hearing, M.B.’s father asked for a contested hearing. Mother asked the court to find that the Agency had not provided reasonable services, on the ground that the ‘reunification plan... does not provide for visitation.’ Mother complained that she ‘has had an opportunity to visit with her child exactly no times in the last six months.’ Mother argued that visitation had to be facilitated by the Agency, in a ‘therapeutic setting’ if necessary, and that visitation could not be delegated to M.B. The juvenile court responded that ‘litigation with respect to that issue will go forward’ at ‘the next [i.e., contested] hearing....’
“The court set the matter for a contested hearing on January 23, to address visitation as well as other issues. Pending that hearing, and in an order dated January 12, the court adopted the Agency recommendations that foster placement continue, that the Agency had offered reasonable services, and that Mother had made only minimal progress.
“At the January 23 hearing, father and the Agency represented that they had reached an agreement, and father no longer contested the six-month review. Mother again asked the court to find that reasonable services had not been provided, on the ground that there had been no visits between her and M.B. Mother again argued that visitation could be in a therapeutic setting, and could not be delegated to the child. Mother complained that ‘in the nearly nine months that [M.B.] has been [detained, and in foster placement] there have been no visits with her....’
“The Agency responded that M.B. was not dictating whether visitation would occur, but that visitation was currently ‘a negative experience’ for M.B. for the reasons set forth in the report-i.e., Mother’s behavior. ‘As far as visitation services are concerned, it is necessary for the Agency to always be evaluating them, the appropriateness of visitation and to arrange visitation to the extent that it is consistent with the well-being of the child.... [¶] The [social] worker in this case has not dropped the ball with respect to that mission and for factual and good reason visitations have not taken place.’
[¶]... [¶]
“The court found that Mother had not participated in parenting classes and that M.B. ‘refuses to have contact with her. Based on the record before the court, it would be detrimental to her to be forced to have contact with her mother if she does not want it. This can be developed in everybody’s best interest over the next period. Things change, relationships improve, but we have to do that so everyone’s interests are protected, particularly this child [M.B.].’
“In an order dated January 23, the court adopted the recommendations of the Agency, and found―as it did on January 12―that reasonable services had been provided, but Mother had made minimal progress. The court found foster placement would continue, and that returning M.B. to Mother at the present time would be detrimental in light of the lack of substantial progress with her case plan. The court ordered another six months of reunification services. The court ordered visitation to continue ‘as frequent[ly] as possible consistent with [M.B.’s] well-being.’ The court added: ‘We want [M.B.] to visit [Mother], and we want to make sure that she does it in her best interest so she won’t be damaged in any way emotionally or personally.’ ”
3. In the extraordinary writ proceeding, we rejected Mother’s challenges to the juvenile court’s order setting a section 366.26 hearing (.26 hearing) to select a permanent plan for the minor M.B. (T.G. v. Superior Court (Sept. 23, 2009, A125604) [nonpub. opn.].) We restate the facts from our prior opinion in the writ proceeding.
“On June 2, 2009, the juvenile court approved a request by the Agency to place the minor with T.H. (paternal aunt). Later that month, the Agency filed its report for the 12-month hearing, recommending that the court terminate reunification services to Mother and set the matter for [a.26 hearing] to select a permanent plan under which the paternal aunt would become the minor’s legal guardian. The case worker reported Mother had been ‘partially compliant with her case plan’ during the period under review, participating in her parenting classes. But Mother continued not to participate consistently in her individual therapy and her anger management/domestic violence sessions. [Regional Center] reported Mother was ‘not learning how to control her anger and does not have the tools to control it on her own.’ As for visitation, the case worker noted she had collaborated with the paternal aunt ‘to try to work out a visitation schedule.’ On May 25, 2009, the paternal aunt ‘tried to facilitate a visit, ’ driving the minor to the maternal grandmother’s residence ‘in hopes’ of an initial visit between the minor and Mother. Mother came out of the home and spoke with the minor-who remained in her aunt’s car-for about 15 minutes. The aunt reported the minor began talking and asking questions about Mother afterwards. A second visit took place at the aunt’s home for one hour on June 16, under the supervision of a visitation therapist. At the end of this visit, the minor hugged Mother, gave her a kiss, and made her a jelly sandwich. The visitation therapist stated she would continue weekly therapeutic visits.
“At the 12-month hearing on June 29, Mother’s counsel stated his intention to argue and submit the matter on the basis of the Agency’s report. He argued services for Mother should continue because the Agency had failed to provide reasonable reunification services. Specifically, it had not arranged for any visitation between Mother and minor other than the two visits that had occurred only weeks before the 12-month hearing. The court found under the circumstances that the Agency had offered or provided reasonable services, terminated services to Mother, and set the matter for a [.26 hearing].”
B. The Facts of the Present Appeal
The.26 hearing was set for October 1, 2009. In its report prepared for that hearing, the Agency recommended that the paternal aunt and her husband (aunt and uncle) be appointed M.B.’s legal guardians. The Agency chose guardianship over adoption as the permanent plan because the aunt and uncle were willing to become M.B.’s guardians, but were not willing to adopt her.
With regard to visitation, the Agency reported that M.B. had not seen Mother for “about one and a half to two months.” Mother had not called M.B. Mother and M.B. were supposed to have weekly therapeutic visits with a therapist, but apparently were not doing so. There had been three visits (presumably without the therapist) since July. The aunt and uncle reported that M.B. did not want to see Mother, and that M.B. would urinate and defecate on herself in public after visits with Mother. M.B. had explicitly stated she did not want to see Mother, had not asked to see her, and had torn Mother’s phone number out of her notebook and threw it away. When a social worker asked M.B. how she felt about her aunt and uncle being her legal guardians, she gave two thumbs up.
The Agency recommended that visitation “shall be reasonable, with the time, place, and manner to be arranged by the legal guardian, consistent with the well-being and best interests of” M.B.
At the.26 hearing, Mother objected to the proposed permanent plan, but did not ask that M.B. be returned to her at that time. Her counsel conceded she had not fully complied with her case plan. Counsel noted he had advised Mother “about her option to make a subsequent [section] 388 motion if we get to the point where she has fully completed her case plan. And with that, I will submit.”
Mother did not object to the proposed visitation order.
The juvenile court found that reasonable services had been offered to Mother and that legal guardianship was the appropriate permanent plan. The court appointed the aunt and uncle the legal guardians of M.B. and entered a visitation order worded as quoted above.
The court’s minute order tracks the Agency’s exact recommended language, i.e., that visitation “shall be reasonable, with the time, place, and manner to be arranged by the legal guardian, consistent with the well-being and best interests of” M.B. In open court, the court ordered that visitation “shall be reasonable with the time and place set out by the legal guardian in the best interest of” M.B. Mother does not argue any material distinction between the written and oral language; in the circumstances of this case, we see none.
II. DISCUSSION
Mother contends the juvenile court’s visitation order improperly delegated authority over visitation to the legal guardians. She also contends the court erred by finding the Agency had provided her with reasonable services. We disagree for the reasons set forth below.
Visitation.
Mother concedes she did not object to the visitation order below. The Agency argues that Mother has thus forfeited her right to challenge the visitation order on appeal by failing to object. (See, e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.); In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) “The purpose of [the forfeiture] rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]” (S.B., supra, at p. 1293.)
Mother notes, correctly, that the forfeiture rule is not automatic and does not preclude an appellate court from exercising its discretion to consider forfeited claims. (S.B., supra, 32 Cal.4th at p. 1293; In re M.R. (2005) 132 Cal.App.4th 269, 272 (M.R.).) But our Supreme Court cautions that an “appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.” (S.B., supra, at p. 1293, italics added.) Appellate courts should also exercise such discretion “with special care” in dependency matters. (Ibid.)
Courts in dependency cases have properly exercised their discretion to review forfeited issues of law arising from undisputed facts. For instance, both S.B. and M.R. involved the exercise of discretion to review forfeited issues of statutory interpretation, involving the question whether the juvenile court could delegate visitation authority to legal guardians as opposed to foster parents. (See S.B., supra, 32 Cal.4th at pp. 1293−1296; M.R., supra, 132 Cal.App.4th at pp. 272−274.) In re V.F. (2007) 157 Cal.App.4th 962, 968−972, involved review of the forfeited legal issue of whether the juvenile court properly applied section 361, subdivision (c)(1). And In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313−1314 (Rebecca S.) involved discretionary review of the forfeited issue of whether a visitation order improperly delegated visitation authority to a legal guardian.
Mother raises a legal issue arising from undisputed facts. Despite her failure to properly preserve the issue for appeal by objecting below, we will exercise our discretion to review the visitation order on its merits.
The question before us is whether an order which mandates reasonable visitation (“visitation shall be reasonable”), but delegates to the time, place, and manner of visitation to the legal guardian, consistent with the well-being and best interests of the child, is an improper delegation of visitation authority. We conclude that it is not, and that such an order is appropriate and valid.
It is settled that a juvenile court may not delegate complete discretion to determine whether any visitation could occur, but can delegate discretion to determine the time, place, or manner of the visits. (See, e.g., In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008−1009 (Christopher H.); In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1164.) The latter is exactly what the juvenile court did in this case: the court ordered reasonable visitation with the time, place, and manner to be arranged by the legal guardian in the best interests of M.B.
But Mother contends that the court’s failure to set forth the frequency and duration of the visits in the visitation order “gives too much discretion to the guardian” and “as such allows the guardian to determine whether visits will occur.” This is an inaccurate interpretation of the order. Reasonable visitation must occur, but logistical details may be arranged by M.B.’s guardian. And “most courts... agree the visitation order need not specify the frequency and length of visits. Such specificity is at odds with the purposes and practical necessities of a visitation order intended to protect the well-being of a dependent child....” (Christopher H., supra, 50 Cal.App.4th at p. 1009.) We cited Christopher H. in our opinions in both of Mother’s prior appeals, in which we rejected Mother’s challenges to visitation orders which did not spell out frequency and duration.
Mother relies on language in Rebecca S. which purports to differ, albeit sub silentio, from Christopher H.: “The time, place, and manner of visitation may be left to the legal guardian, but leaving the frequency and duration of visits within the legal guardian’s discretion allows the guardian to decide whether visitation actually will occur. [Citation.]” (Rebecca S., supra, 181 Cal.App.4th at p. 1314.) This argument is based on a false premise: when a court orders reasonable visitation, but does not specify frequency and duration, it does not follow that the court has delegated whether visitation will occur at all. The court mandated that reasonable visitation occur. The court simply directed the guardian to determine frequency and duration, in the best interests of the minor. This was particularly important in this case involving an emotionally fragile 10-year old with the history mother presented.
We note that the sole authority relied on by the Rebecca S. court is M.R., supra, 132 Cal.App.4th at pp. 271, 274. But M.R. involved a visitation order that, unlike the order in the case now before us, clearly delegated to the guardian the decision whether visitation would occur. (Id. at pp. 272, 274.) Neither Rebecca S. nor M.R. cites Christopher H., which we follow because of its rationale.
The visitation order in this case does not improperly delegate visitation authority to the legal guardian.
Reasonable Services.
Mother contends that there is insufficient evidence to support the juvenile court’s finding that she was offered reasonable services. Our review of the juvenile court’s finding that reasonable services were provided is governed by the substantial evidence test. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We must view the evidence in the light most favorable to the Agency. (Ibid.) We do not reweigh the evidence, and must accept as true the evidence most favorable to the finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52−53.)
Mother argues she was not offered reasonable services because visitation “was ceased [sic] without a court order.” We do not see why the presence or absence of a court order is determinative. It appears that visitation was stopped because visits with Mother were harming M.B. The record shows that Mother was offered reasonable services throughout these proceedings. The record also shows Mother had not fully participated in the services provided, including individual therapy and anger management classes. Indeed, her counsel conceded she was not in compliance with her case plan.
The juvenile court’s finding is supported by substantial evidence.
III. DISPOSITION
The order implementing legal guardianship as a permanent plan is affirmed.
Mother complains of an inconsistency between the oral rendition of the order and the minute order, with regard to adoptability. The minute order erroneously states that M.B. is adoptable, while the juvenile court corrected that in open court by deleting the adoptability finding. Adoptability is not at issue in this case. We direct the parties and the juvenile court to make the appropriate correction.
We concur: Margulies, J., Banke, J.
All dates are in 2008 unless otherwise indicated.
The dependency petition also alleged there was no provision for M.B.’s support. (§ 300, subd. (g).) This allegation was later stricken.
The petition also named M.B.’s father, who is not a party to this appeal.”