Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ-08-009298
Marchiano, P.J.
T.G. (Mother) challenges an order of the Alameda County Superior Court, Juvenile Division, made at the conclusion of the 12-month permanency hearing (the 12-month hearing), in which the court set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the minor M.B. (born December 1999). Mother challenges the finding that the Alameda County Social Services Agency (Agency) offered or provided her with reasonable reunification services, claiming the Agency failed to provide or facilitate adequate visitation during the period under review. As discussed below, we conclude substantial evidence supports the challenged finding and deny Mother’s petition on the merits.
All further statutory references are to the Welfare and Institutions Code.
Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. (§ 366.26, subd. (l)(4)(B).)
Background
The Agency initiated this proceeding on March 13, 2008. The juvenile court ordered the minor’s formal detention four days later, and on May 1, 2008 established dependency jurisdiction under section 300, subdivision (b). The amended jurisdictional allegations sustained by the court stated, as to Mother, that she was developmentally delayed, had failed to supervise the minor adequately, had inappropriate sexual behavior in the minor’s presence, had several allegations of excessive physical discipline of the minor, and had a history of unstable housing and difficulty working with others concerning “safety issues and concerns” relating to the minor.
Mother has been a client of the Regional Center of the East Bay (RCEB) throughout these proceedings, receiving services tailored to those with developmental disabilities. The Agency’s assigned case worker (case worker) stated in her report prepared for the dispositional hearing that, as of April 2008, Mother and the minor were having telephone conversations, but the minor—then eight years of age—refused to have visits with Mother. The case worker had informed RCEB that Mother and “the minor need[ed] to move towards having visits.” At the same time, the case worker noted that the minor’s behavior indicated she might have an undiagnosed emotional, cognitive, or psychological issue, and advised RCEB “not to force the minor to visit.” The case worker recommended that the minor start therapy so that visits with Mother might “start within the therapist’s office.”
In refusing to visit Mother, the minor reportedly became “emotional and [would] throw herself to the ground.”
At the conclusion of the dispositional hearing on July 23, 2008, the court ordered placement of the minor in out-of-home foster care, ordered visitation “as frequently as possible consistent with the child’s well being,” and appointed the foster parent to be the minor’s educational surrogate. Mother appealed, challenging these dispositional orders, as well as the court’s jurisdictional findings.
The juvenile court held the six-month status review hearing (the six-month hearing) in January 2009. In her report submitted for this hearing, the case worker stated she had scheduled an “initial visit” between Mother and the minor to occur at an Agency office on December 18, 2008. Apparently, the visit did not take place. Otherwise, Mother had two telephone contacts with the minor during the period under review, which on one occasion resulted in the minor crying profusely. Mother had “inappropriately” interrogated the minor during these contacts. Afterwards, the minor again refused to have visits or contact with Mother. Mother, for her part, had been arrested in November 2008 for assaulting her boyfriend, yet as of late December 2008 had only been “minimally compliant” with her case plan. In particular, she had not been consistent in attending anger management and domestic violence classes or individual therapy. The case worker recommended that, for contact to resume, Mother “must agree to engage in appropriate conversation with the minor,” and refrain from discussing the allegations of the petition.
At the six-month hearing, held in January 2009, Mother’s counsel requested a finding that the Agency had not offered or provided reasonable services, because it had not arranged for visitation between Mother and the minor during the period under review. Counsel for the agency responded that visitation was currently a “negative experience” for the minor due to Mother’s behavior. On this issue, the court suggested the parties might work to improve matters “over the next period,” but concluded it was presently detrimental to the minor to force her to have visits with Mother. In its order dated January 23, the court continued Mother’s reunification services, found the Agency had offered or provided reasonable services during the period under review, and reiterated its earlier order that visitation be “as frequently as possible consistent with the child’s well being.” Mother appealed this order, challenging the reasonable services finding due to the “absence of any visitation.”
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 hearing under section 366.26, 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. RCEB 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 hearing under section 366.26. Mother’s petition followed. (§ 366.26, subd. (l).)
Meanwhile, in July 2009 we affirmed the jurisdictional finding and dispositional orders challenged in Mother’s first appeal. (In re M.B. (July 14, 2009, A121928) [nonpub. opn.].) Mother’s second appeal, from the order made after the six-month hearing, is pending before this court. (In re M.B., A123931.)
Discussion
At the 12-month hearing, the juvenile court must find by “clear and convincing evidence that reasonable services [were] provided or offered to the parents” before it may set a hearing pursuant to section 366.26. (§ 366.21, subd. (g)(2).) As we have noted, the court made this finding in its order of June 29, 2009. Mother contends the finding is not supported by substantial evidence. She urges that her services were not reasonable because visitation was “glaringly inadequate.” She was able to have only two visits with the minor, and these did not occur until late May and June 2009, only weeks prior to the 12-month hearing.
In Mother’s first appeal, we upheld the dispositional order directing the Agency to arrange for visitation with Mother “as frequently as possible consistent with the child’s well being,” concluding the order did not give the minor improper “veto power” over visitation. (In re M.B. (July 14, 2009, A121928) [nonpub. opn.]; cf. In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138-1139 (Nicholas B).) That ruling is now law of the case. (See Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492.) Thus, we do not reconsider the validity of an identical visitation order, made on January 23, 2009, which was in effect during the period under review at the 12-month hearing.
Nor do we consider here whether the juvenile court erred in finding, at the six-month hearing, that the Agency had provided reasonable services up to that time. That finding is the subject of Mother’s second, pending appeal. (In re M.B.,A123931.) In effect, the only issue before us is whether the Agency failed to comply with the visitation order, to the extent that it failed to provide adequate visitation between Mother and minor during the period reviewed by the court at the 12-month hearing.
Visitation shall be “as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).) The juvenile court may deny visitation where it is detrimental to the child, but it is the court, and not the agency or child, that is ultimately responsible for this discretionary determination. (See Nicholas B., supra, 88 Cal.App.4th at pp. 1138-1139.) On the other hand, while visitation may not be dictated solely by the child, the child’s desires may be a dominant factor. (Id. at p. 1138.)
In finding that the Agency had offered or provided reasonable services to Mother, the juvenile court necessarily rejected Mother’s argument to the contrary, and found implicitly that more frequent, and earlier, visitation would have been detrimental to the minor’s well-being. As we have noted, the Agency’s report, admitted at the 12-month hearing, included evidence indicating that Mother was still unable to control her anger, yet continued to be inconsistent in her attendance in the therapy sessions and anger management sessions designed to address this concern. This evidence supports the court’s implicit finding of determent and shows clearly that, while the court may have regarded the minor’s desires as a dominant factor, it did not rely exclusively on those desires in making its determination. We conclude that there was substantial evidence permitting a reasonable judge to find, under the clear and convincing evidence standard, that the Agency offered or provided reasonable reunification services to Mother. (See In re Monica C. (1995) 31 Cal.App.4th 296, 306; In re Andrea G. (1990) 221 Cal.App.3d 547, 552; see also In re Jasmine C. (1999) 70 Cal.App.4th 71, 75; In re Julie M. (1999) 69 Cal.App.4th 41, 46.)
Disposition
The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately.
We concur:, Margulies, J., Banke, J.