IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
December 17, 2010
IN RE A.M., ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
A.G., DEFENDANT AND APPELLANT.
Humboldt County Super. Ct. Nos. JV090039-1, JV090039-2 & JV090039-3
The opinion of the court was delivered by: Margulies, J.
In re A.M. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant A.G. (Mother), the mother of the three children at issue here, and their father (Father) have long histories of substance abuse. As a result, the children began living with guardians in 2005. When the guardianship was terminated in 2009, the Humboldt County Department of Health and Human Services (Department) attempted to reunify the parents and children. At the end of the six-month review period, Mother contended she had not been provided reasonable visitation with the children. The juvenile court rejected the claim. On appeal, Mother contends the visitation order was itself illegal. We affirm.
The maternal grandparents of Mother and Father's three children--two girls, A.M. and S.M., and a boy, B.M.--were declared the children's guardians in 2005, after substance abuse rendered the parents incapable of caring for them. In March 2009, the Department filed a dependency petition under Welfare and Institutions Code section 300, with respect to all three children, based on allegations that the grandfather had molested A.M. In July 2009, the juvenile court sustained the dependency petition as to A.M. but denied it as to the other children. Nonetheless, the court terminated the guardianship as to all three children. We affirmed this order in an earlier decision. (In re B.M. (A125702, June 4, 2010) [nonpub. opn.])
Immediately following entry of the juvenile court's order terminating the guardianship, the Department filed a second dependency petition with respect to B.M., then age 14, and S.M., then age 9. The petition alleged that the children's parents had been informed in March 2009 of the potential termination of the guardianship, but both had since been incarcerated for parole violations and had made no provision for the children's support. The court found the allegations sufficient to support the detention of both children and scheduled a joint jurisdictional hearing for B.M. and S.M. and dispositional hearing for A.M. in August 2009. The hearing was ultimately rescheduled several times to accommodate the parents' attendance from jail.
In its reports prepared for the hearing, the Department stated that both parents had violated their parole by using alcohol and had been returned to prison. While the parents hoped to resume parenting the children, they faced substantial obstacles, including their ongoing substance abuse and legal problems. Further, because the parents' contact with the children had been minimal during the five-year guardianship, the existing relationships were limited. At the time of the joint hearing, the Department viewed placement with either parent as not in the best interests of the children.
At the hearing, held October 13, 2009, the parties' attorneys informed the court that a stipulated resolution had been reached. Counsel for the Department read into the record the proposed provision regarding visitation: "The parents shall have a minimum of one visit per month in Humboldt County, supervised, as allowed by their parole officers. The social worker has discretion as to time, place and manner. The child will be offered visitation with his or her extended family and parents in Amador County on all major holidays and school breaks. The child will be encouraged to visit, but may refuse. The children will stay with the paternal great-grandparents, who will supervise visits with the parents as arranged between the great-grandparents, the social worker, and the parents. Visits in Amador County may go to unsupervised at the discretion of the social worker, with the agreement of minors' attorneys." Counsel for parents and children consented to this language, and the court adopted it.
In the May 2010 reports submitted in anticipation of the six-month review hearing, the Department stated Mother was homeless. While she had made some progress on her case plan, her "situation" was characterized as "unstable." Father had violated his parole again and was incarcerated. B.M. had refused to visit with either of his parents and did not want to reunify with them. S.M. made clear she did not want to live with Father as a result of his alcohol abuse, and she "[made] little reference to [Mother]." A.M.'s "infrequent visits and irregular phone contact with [Mother] have not been enough to establish a connection or sense of stability between mother and daughter."
At the six-month review hearing, Mother's counsel contended the children's visitation with her had been inadequate. The supervising social worker testified that, following the jurisdictional hearing, Mother had two visits with her daughters in Amador County in November 2009; B.M. had declined to join the visits. Another Amador County visit with the girls occurred over the holidays in December. No visits occurred in Humboldt County during this time, apparently because Mother would have been required to get the consent of her parole officer to travel outside Amador County. Late in January, Mother's parole status was changed to permit unrestricted travel to Humboldt County. Nonetheless, she made no attempt to arrange visits with the children in January, February, or March 2010, despite the County's offer to pay for her transportation. In April, one or two visits occurred in Humboldt County, one of which included B.M., when Mother was present to attend a court hearing. On May 4, Mother was arrested in Amador County for "domestic violence" and jailed. Throughout the review period, the social worker had found it difficult to contact Mother, with messages generally passed through a social worker in Amador County.
Based on the foregoing, the juvenile court rejected the claim that reasonable reunification services had not been provided to Mother.
Mother contends the juvenile court abused its discretion by entering an order of visitation that permitted the children to refuse to visit Mother, contrary to statute.*fn1 For purposes of argument, we assume the juvenile court would have abused its discretion had it allowed the children to control whether any visitation would occur at all. (Welf. & Inst. Code, § 362.1, subd. (a)(1)(A) [reunification services must include parent-child visitation]; In re Julie M. (1999) 69 Cal.App.4th 41, 48-49 [juvenile court abuses its discretion in permitting children to determine whether visits would occur].) We nonetheless find no merit in Mother's argument.
Initially, we note that the terms of the juvenile court's order were not the cause of Mother's paltry visitation with her children. During three of the six months under consideration, January through March 2010, Mother had no visits with the children because she did not take advantage of the opportunity to visit. The Department made clear to Mother that it would make arrangements for visits to occur in Humboldt County and pay her expenses in traveling there, and Mother's parole status did not restrict her visitation in those months. Yet she made no attempt to arrange a visit. Further, because Mother had no fixed address and could not be contacted other than through an Amador County social worker, it was difficult for the Department to encourage or facilitate the visits. In other words, the children did not veto the visits; rather, Mother chose not to visit. (See In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365 [mother cannot claim visitation was inadequate when she did not follow through with the visitation plan].)
Further, Mother's attorney approved the terms of the visitation order and thereafter made no attempt during the six-month review period to obtain a modification of it. Orders entered on stipulation ordinarily cannot be appealed. (In re Daniel C. H. (1988) 220 Cal.App.3d 814, 838 [father waived right to contest order of no visitation after he acceded without objection to the order]; In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1209.)
In any event, Mother's legal claim is premised on a misreading of the juvenile court's order. Contrary to Mother's claim that the children were granted the right to decline to participate in visits, the order states the parents "shall" have at least one visit per month in Humboldt County, the children's county of residence. There is no qualification of this mandatory language.*fn2 Only when discussing optional visits in Amador County "on all major holidays and school breaks" did the order give the children a choice. As to these holiday visits, "[t]he child will be encouraged to visit, but may refuse." In other words, the parents were guaranteed a monthly visit with all the children in Humboldt County. Additional visits could occur in Amador County, but the children were not required to participate in these. Accordingly, while the children controlled visitation outside their county of residence, they could not veto visitation entirely.
To the extent it is possible to determine from the few visits that occurred, the Department appears to have interpreted the order in this manner. B.M. was permitted to refuse to participate in the visits that occurred in Amador County around the end of 2009. On the one occasion Mother arranged to visit the children in Humboldt County, however, all three children participated.
The order of the trial court is affirmed.