Opinion
A099247.
10-16-2003
In re SHELTON C., IV, a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. SHELTON C., SR., Defendant and Appellant.
I. INTRODUCTION
Shelton C. Sr. (father) appeals from an order terminating parental rights to his son, Shelton C., IV. Father contends the trial court abused its discretion when it denied his petition under Welfare and Institutions Code, section 388 and erred in failing to find, pursuant to section 366.36, subdivision (c)(1), that exceptional circumstances justified selection of a permanent plan other than adoption. We disagree and affirm the order denying fathers section 388 petition and terminating his parental rights.
II. FACTUAL AND PROCEDURAL BACKGROUND
Shelton was born in November 1999 with cocaine and opiates in his system. His mother failed to comply with an informal supervision agreement and, on January 10, 2000, the Alameda County Social Services Agency (the Agency) filed a dependency petition under section 300, subdivision (b) and (g). The petition alleged that mothers substance abuse problem could render her unable to care for Shelton.
Because Sheltons paternity was unclear, the court ordered father and another man to undergo paternity testing. The petition alleged father believed Shelton should be with mother and "is hesitant to assume parental responsibility." Shelton was detained in mothers home and mother was required to produce clean drug tests and continue attending the Healthy Infant Program. She was also required to enter a residential drug treatment program.
The jurisdictional and dispositional hearing was held on February 1, 2000. In a report prepared for that hearing, the Agency noted that paternity tests had been conducted and the results were pending. The Agency reported that father "states the minor needs to be with the mother," that father was married to another woman and was "hesitant to assume responsibility for the minor on a full-time basis." Father told the Agency he had encouraged the mother to enter residential drug treatment and "appears to be a good support for the mother." Because fathers paternity had not yet been established, the agency was not required to provide reunification services to father.
A six-month status review hearing was held on June 22, 2000. By this time, fathers paternity had been established. The Agency reported that mother had not been attending the Healthy Infant Program regularly and was not in compliance with her case plan. Father told the Agency he was visiting Shelton several times a week.
The court continued Sheltons dependency and ordered that father be offered six months of reunification services. Fathers case plan required him to show his ability and willingness to have custody of Shelton; obtain and maintain a suitable residence for himself and Shelton; pay attention to and monitor Sheltons health, safety and well-being and consistently, appropriately and adequately parent Shelton. The court continued the matter to November 30, 2000, for further status review.
However, in mid-September, the in-home placement with mother deteriorated and the Agency filed a supplemental petition for more restrictive placement under section 387. The petition alleged that Shelton had been found in a dirty home, with a rash on his face and drinking from a bottle that had a hardened substance in it; that mother continued to abuse substances and this abuse interfered with her ability to supervise and care for Shelton, and that mother failed to participate fully in the Healthy Infant Program and had stopped submitting to drug testing. A detention hearing was held on September 15, 2000, and Shelton was removed from the home and placed in emergency shelter care.
A jurisdictional and dispositional hearing on the section 387 petition was held on October 3, 2000. In the report prepared for this hearing, the Agency recommended that Shelton remain in out-of-home care and that the parents receive reunification services. The Agency reported that mother wanted Shelton placed with father until mother was able to care for him. The father "agrees that he will take care of the minor if the mother cannot do so but would like for the minor to be placed with the mother. Neither parent believes that the minor should have been removed from the mothers care." Father was interviewed by the Agency before the hearing and stated he believed the mother was doing a good job taking care of Shelton. Father stated he visited Shelton once a week for about a month and before that, almost daily. Father was not concerned with mothers ability to care for Shelton. According to the Agency, "[t]he father said he will accept custody of the minor if he is not able to return to the care of the mother. [Father] said that he believes that mothers are more nurturing and that is why children should be with them."
The Agency noted that father was not in compliance with the case plan in that he was "unwilling to provide primary care to the minor and prefers that the mother assume custody of the child," had "failed to show the court that he takes an active interest in the minors life and has not complied with the court ordered case plan for reunification." The Agency recommended that, beginning October 3, 2000, father have weekly visitation with Shelton.
The hearing on the section 387 petition was continued to October 17, 2000. At the request of mothers attorney, the court then continued the matter to November 20, 2000, for a contested jurisdictional hearing. In an addendum report prepared for the November 20 hearing, the Agency continued to recommend out-of-home care. The Agency also provided the court with an updated case plan for father. This case plan included requirements that father maintain a relationship with Shelton by following the conditions of the visitation plan and that father participate in a parenting education program. The Agency noted that the parents had visited Shelton twice since the September 12 removal and did not show up for three other scheduled visits.
On November 20, 2000, father attended the hearing and the court ordered father to appear again on November 22, 2000, to meet with counsel. The jurisdictional hearing was continued to December 11, 2000, and, in the meantime, counsel was appointed for father.
In an addendum report prepared for the December 11, 2000, hearing, the Agency described its assessment of fathers home on November 30, 2000. According to father, he was remodeling his home. Of particular concern to the Agency was the fact that the bathroom in fathers home was gutted of everything except a toilet. Four windows were missing and one of the openings was covered with plywood. The home had two large bedrooms with closets and beds and appeared to be clean. Father said he would find daycare if Shelton was placed with him but had not made arrangements to do so. Father also reiterated that the mother was doing a good job caring for Shelton.
The December 11, 2000, hearing was continued to January 8, 2001. Neither father nor mother was present at this hearing. The court found the allegations in the section 387 petition true, ordered reunification services for both parents and continued the matter to March 27, 2001, for a dependency status review and set a six-month review for June 21, 2001.
The Agency prepared a report for the March 27, 2001, status review hearing. Father was reported to be visiting Shelton weekly and the foster family agency social worker supervising the visits reported he was impressed with fathers efforts to get to know his son. The Agency worker reported coordinating an additional weekly visit and anticipated transitioning to unsupervised visits.
The Agency prepared a status review report for the six-month review hearing scheduled for June 21, 2001. The Agency reported that mother had been incarcerated at Santa Rita Jail and, after being released, had failed to attend the residential drug treatment program to which she had been referred. She was also not following through with appointments with her probation officer and had admitted to recently using cocaine.
As for father, the Agency reported that he had maintained contact with Shelton throughout the past three months, although he tended to arrive to visits a little late. He appeared to be fond of his son. Although the Agency offered to conduct a home assessment to determine if home visits would be appropriate, father declined, on the ground that he was still remodeling his home. Father also continued to state that mother had been taking care of Shelton appropriately at the time he was removed from her. He stated that, although mother must stop using drugs, she did not pose a risk to Shelton at the time he was removed. Father stated he had been "monitoring" the situation with mother and believed Shelton was fine.
In late March, the Agency worker arranged for twice-weekly visits between father and Shelton, in the morning, at fathers request. However, father failed to attend the first visit and attempted to reschedule the second one. On the third visit, father called at the last minute and stated the morning visits were not working out as he had hoped. The worker and father agreed to shift back to an afternoon visit once a week.
The Agency reported concern that father continued to deny that Shelton was not being properly cared for by his mother when he was removed from her home. Although father indicated he was willing to care for Shelton, he had not prepared his home for a toddler. The Agency concluded that, although father maintained weekly visits, he did not appear to be actively seeking custody. This conclusion was based on the fact that father had declined to have a home assessment to facilitate in home visits and the fact that father had cut back on visits from twice a week to once a week.
In its report, the Agency recommended that that family reunification be terminated to the parents and a section 366.26 hearing be set with a permanent plan of adoption.
On June 21, 2001, the court set the matter for a contested hearing on the six-month report and review. On July 16, 2001, the court gave the Agency worker the discretion to increase visits between father and Shelton to two hours and continued the contested hearing to permit mother to employ new counsel.
The Agency prepared a report for the continued contested six-month review hearing. The Agency reported that father had requested a home assessment. The assessment was held on July 10, 2001. The living room was clean and organized. However, around the perimeter of the room and kitchen, the worker observed containers with liquids in them, including cleaning solutions for cars. The worker observed tools and sharp objects within the reach of a toddler, a broken mirror in the kitchen leaning against the kitchen cabinet, no safety latches on any of the drawers or cabinets and cleaning supplies under the kitchen sink and no safety latches. The sub-flooring in the main bathroom was exposed and the worker could see the ground outside through holes in the floor. There was no bathtub or sink in the bathroom. The toilet was in working order. The worker observed a bottle of flea shampoo on a bookshelf in a bedroom.
The Agency worker spoke with father about the risks to a toddler presented by these hazards. Father response was that "he has raised children and knows how to keep a safe environment." On July 23, 2001, the Agency worker conducted a follow-up home evaluation. Although it was apparent father had tried to clean up the home, the worker continued to have concerns about safety. The broken mirror was still on the kitchen floor. Childproof locks had been purchased but not installed. A bathtub had been recently installed in the bathroom and the sub flooring, although exposed, had been repaired and the ground outside was no longer visible.
The Agency also reported that, because of missed visits, a system was set up for father to call and confirm the visit ahead of time or it would be cancelled. Father failed to confirm a number of visits and they were cancelled.
The matter was continued and, on August 30, 2001, the court admitted into evidence the reports prepared for the June 21 and August 13, 2001 hearings. The court scheduled a further contested hearing for September 13, 2001. On September 13, 2001, the court found the hearing amounted to an 18-month review hearing, that no further services would be provided and that the only remaining issues had to do with return of the minor and whether reasonable services had been offered and a section 366.26 hearing should be set. At a hearing on October 29, 2001, the court gave the Agency worker discretion to increase visitation with father upon his request.
On October 31, 2001, the court found reasonable services had been provided, that the extent of progress toward alleviating or mitigating the cause of placement had been minimal and set a hearing under section 366.26 for February 25, 2002. The court ordered visitation in which, after each timely visit, fathers time with Shelton would be increased by one hour, up to four hours. At that point, the Agency worker was given the discretion to increase visits to include an overnight visit.
The Agency submitted a report for the February 25, 2002, section 366.26 hearing. In this report, the Agency stated that father had requested an increase in visits from one to two hours. Since that time, father maintained these visits and was timely. He did not request any additional visits. The Agency noted that Shelton was able to recognize father and would go to him willingly on visits. However, Shelton did not talk about father between visits and father did not call the foster home to speak with Shelton or the foster parent between visits. Shelton did not appear to recognize father in the parental role. Shelton was reported to be developmentally on target, a happy, sociable child with little or no stranger anxiety. His foster parent wished to adopt him.
Shortly before the February 25, 2002, section 366.26 hearing, father filed a section 388 petition. In this petition, father requested the court modify its February 1, 2000, order and place Shelton in fathers home. Father alleged that the changed circumstance justifying this modification was that he had "complied with all conditions of the case plan or so many as to justify placement with father."
The section 366.26 hearing was held concurrently with the hearing on the section 388 petition on February 25, 2002, March 6, 2002, March 20, 2002, April 23, 2002, and May 21, 2002.
Father testified that, in early November 2001, his visits with Shelton were increased from one hour to two hours. He then requested an additional increase in visits with Shelton by leaving a voicemail message with the Agency worker, Leila Bogner. He did not leave a phone number for a reply and received no response to his request. In February, his visits were increased from two hours to three hours. He testified that when he visits with Shelton, he takes his son to the park, fishing and spends time with friends.
Father continued to believe it was not appropriate for Shelton to have been removed from his mothers care. Father had participated in a parenting class. He did not have a certificate, because he missed the last class.
Father testified his home was childproof. He also stated that, four months before the March 6, 2002, hearing, he had spoken with someone about childcare for Shelton. However, he could not recall the name of the childcare provider, the providers location, and he was not certain there was room for Shelton as of the date of the hearing.
During the March 6, 2002, hearing, father claimed the Agency had failed to comply with the courts visitation order because visitation was not increased as provided in the order. At fathers request, the court granted a continuance to April 23, 2002, in order to permit father to file a motion to hold the Agency social worker in contempt for failing to comply with the courts visitation order. Father did not, however, file such a motion.
At the continued hearing on April 23, 2002, Agency social worker Leila Bogner testified that in the last six months, father visited Shelton regularly. These visits increased from one hour to all-day visits. She did not approve overnight visits. She did not believe it was in the childs best interest to have such visits because she was concerned that father did not have adequate parenting skills and was not able to protect the child. She was also concerned that father consistently stated he did not see the need to have Shelton removed from the mothers care and that this gave rise to a concern about fathers ability to protect his child. She observed that father appeared to behave best when closely monitored by the court and she was concerned that once that process was removed, father would not do well.
On May 21, 2002, further hearings were held regarding the section 388 and section 366.26 matters. The Agency prepared an addendum report for that hearing. In the report, the agency summarized fathers recent visitation with Shelton, which increased in frequency from a two-hour visit in early February 2002 to all day visits beginning on March 30, 2002. The report noted that the foster parent had observed father place Shelton in the front seat of fathers car and secure him with a regular seat belt, rather than in a car seat.
Shawn B., Sheltons foster father, testified at the May 21, 2002, hearing that Shelton came to live with him when the child was about eight or nine months old. He described Shelton as a happy child who loved being around the foster fathers family and around the house. Shelton was learning the alphabet, talking, counting from one to ten and was potty training. On a few occasions, Shawn told father he could have longer visits with Shelton if father wanted, but father did not take Shawn up on this offer. Shawn also testified that within the last three months fathers visits had increased substantially. Shawn described Shelton as happy to see father on the visits. Shelton did not talk about father between the visits or right after the visits. Shawn testified that Shelton "pretty much goes to anybody." Father did not call Shawn during the week to see how Shelton was doing. Father did not request that he be permitted to attend Sheltons doctors visits. Father did not ask about Sheltons likes and dislikes, whether he could help in potty training Shelton or how Shelton was doing in between visits. Shawn testified that although Shelton enjoys fathers company he does not grasp that father is related to him. Shawn testified that he would like to adopt Shelton and that he would allow visitation with father.
Social worker Leila Bogner testified that father had never asked her about participating in medical appointments, never inquired about how the child was doing, or asked questions about the childs welfare. She did not recommend that the child return to his father. Although father had come a long way since February and expressed an increased interest in wanting to spend time with Shelton, she was concerned that he was not ready to be a full-time parent.
The court also received into evidence, in addition to reports prepared for previous hearings, the addendum report of May 21, 2002.
The court denied the section 388 petition. It held that father failed to show a substantial change of circumstances that would serve the best interest of Shelton. The court also terminated the parental rights of father and mother. The court found that, with regard to the section 366.26, subdivision (c)(1)(A) exception, father had shown he had maintained regular and consistent visitation. However, the court concluded father had not assumed a parental role in Sheltons life and thus, the court did not find that the termination of parental rights would be detrimental to Shelton.
This timely appeal followed.
III. DISCUSSION
A. The Section 388 Petition
Father petitioned, under section 388, to have the courts order removing Shelton from his mother and placing him in foster care modified to have Shelton placed with him. Fathers petition alleged he had complied with "all conditions of the case plan or so many as to justify placement with father." The court denied this petition and father now contends the trial court abused its discretion in so doing. We disagree.
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) The petition is addressed to the sound discretion of the juvenile court, and its ruling will be disturbed on appeal only for clear abuse of that discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
The record supports the juvenile courts finding that father failed to show a change of circumstances or that the proposed change would promote Sheltons best interests. Father filed his petition after reunification services had been terminated and shortly before the date set for the section 366.26 hearing. At that point, "the focus of the dependency proceedings had shifted from reunification to the childs need for a stable and permanent home." (In re Casey D. (1999) 70 Cal.App.4th 38, 48, citing In re Jasmon O., supra, 8 Cal.4th at p. 420.)
When father filed the petition, Shelton had been with the same foster father since he was removed from his mother at ten months. Shelton, who was two and a half years old, was happy, developmentally on target and well adjusted in his placement with the foster father, who wished to adopt him. Father had the burden of showing that it was in Sheltons best interests to remove him from this stable and permanent home. The trial court did not abuse its discretion when it concluded father had failed to meet this burden.
There was ample evidence that, although father loved Shelton and enjoyed being with him, he was not attentive to Sheltons safety. For example, father continued to believe that Sheltons mother was caring for him adequately at the time the court removed Shelton from the home. On a home visit, the social worker pointed out dangers to Shelton. Fathers response was that his home was safe for a toddler. The foster father observed father pick Shelton up for a visit and place him in the front seat of the car without the required car seat. Moreover, father did not at any point express a desire to understand Sheltons development by inquiring about doctors visits or his life with the foster father. Although father was offered six months of reunification services, during that time period he did not ready his home for Shelton, despite repeated offers by the Agency to conduct home visits. Even after an increase in visitation following the termination of reunification services, Shelton did not appear to recognize his father as a relative and, thus, had not come to see him as a parental figure.
In light of this evidence, we conclude the juvenile court did not err in finding that fathers request for the removal of Shelton from his foster father and placement with him was not in Sheltons best interests. (See In re Casey D., supra, 70 Cal.App.4th at p. 49 [granting appellants requests for further reunification services was not in the childrens best interests given their "strong and immediate need for stability."].) We find no abuse of discretion. (See In re Jasmon O., supra, 8 Cal.4th at p. 415.)
B. Continuing Beneficial Relationship Exception
Father argues the trial court should have found an exception to the termination of his parental rights under section 366.26, subdivision (c)(1)(A). Under that provision, juvenile dependency courts must select adoption as the permanent plan if the evidence supports a finding by clear and convincing evidence that the child will be adopted "unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).)
Here, father contends the court should have made this finding because Shelton knew him as "dad" and enjoyed visiting him, he maintained regular visitation and established as parental a relationship as possible given the limits on his visitation imposed by the Agency. This, however, is not enough.
The trial court found that father maintained regular visitation and, therefore, did meet the first prong of the section 366.26, subdivision (c)(1)(A) exception. The trial courts finding that father failed to establish the subdivision (c)(1)(A) exception was based on the second prong, whether the benefit to the child of maintaining the relationship with the parent outweighs the benefit of adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) We review the trial courts finding under the substantial evidence standard of review. (Id. at pp. 575, 576.)
The cases construing this exception make clear that not every beneficial parent/child relationship will overcome the statutory preference for adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349; In re Casey D., supra, 70 Cal.App.4th at p. 52, fn. 4.) In general, this exception applies only when the parent has maintained a parental role with the child as distinguished from the role of a "friendly visitor." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) The Autumn H. court observed, "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Id. at p. 575.)
Here, the court found that father had not shown the existence of such an attachment. The court "viewed the evidence as the father maintaining a visitor type of relationship with his son. . . . Shelton enjoys these visits and [father] certainly enjoys those visits, but he has not assumed a parental role in this childs life. And its apparent from the evidence that Shelton does not look to [father] as a parental figure [and] doesnt turn to him for any love or support . . . ." Substantial evidence supports this conclusion.
Sheltons foster father testified that Shelton did not talk about his father between visits and did not recognize him as a "relative." The Agency noted that, although Shelton was able to recognize father and would go to him willingly on visits, Shelton did not talk about father between visits and father did not call the foster home to speak with Shelton or the foster parent between visits. According to the Agency, Shelton did not appear to recognize father in the parental role. In sum, substantial evidence supports the courts conclusion that Shelton did not have a significant, positive emotional attachment to father.
Although father contends there was evidence of a bond between him and Shelton, under the substantial evidence standard of review, the fact that substantial evidence may also exist to support a contrary finding is irrelevant. We will not disturb the trial courts conclusion.
C. Reliance on In re Autumn H.
Father also contends the trial court erred in relying on In re Autumn H., supra, 27 Cal.App.4th 567 and the cases following it. He argues these cases have misconstrued the legislative intent of section 366.26, subdivision (c)(1)(A), and have denied the parents right to due process by imposing an impossible burden of proof. We disagree.
In Autumn H., Division One of the Fourth District interpreted the "`benefit from continuing the [parent/child] relationship exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The Autumn H. standard has been adopted by many other Courts of Appeal. (See, e.g., In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822 [Fourth Dist., Div. Three]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342 [Fifth Dist.]; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729 [Second Dist., Div. Two]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 [Sixth Dist.]; In re Casey D., supra, 70 Cal.App.4th at pp. 50-52 [Fourth Dist., Div. One]; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534 [Second Dist., Div. Four]; In re Derek W. (1999) 73 Cal.App.4th 823, 827 [Second Dist., Div. Six]; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109 [Second Dist., Div. Seven]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1349 [First Dist., Div. Three].) We join that group.
Recent cases have rejected arguments along the lines made by father in this case. Both In re Casey D., supra, 70 Cal.App.4th 38 and In re Jasmine D., supra, 78 Cal.App.4th at page 1349 discussed and rejected claims that the Autumn H. standard was contrary to the legislative intent and created an impossible burden for parents to overcome. As explained in those cases, the section 366.26 hearing takes place only after the court has determined that reunification services should be terminated. At that point the childs interest in a stable and permanent placement becomes paramount. "In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) The state has a compelling interest in a stable, permanent home for such a child, and adoption is the preferred plan for a child who is found likely to be adopted. (In re Marilyn H. (1993) 5 Cal.4th 295, 307; In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
"The Legislature has declared that in the ordinary case, a parents failure to reunify and the termination of reunification services at a prior hearing are a sufficient basis for terminating parental rights. (§ 366.26, subd. (c)(1).)" (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) It is thus appropriate for the parent to bear the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(A). (Id. at p. 1350.) The court may reject the parents claim simply by finding that the relationship maintained during visitation does not benefit the child enough to outweigh the strong preference for adoption. Indeed, the court must make a more substantial and affirmative finding if it decides to apply the exception and preserve parental rights. It must then "state its reasons in writing or on the record," and those reasons must be "compelling." (§ 366.26, subd. (c)(1).) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
D. Due Process
Father also contends that he was denied due process because the Agency failed to abide by a court visitation order. We disagree.
The visitation orders to which father refers were made on October 29, 2001, and October 31, 2001. A minute order dated October 29, 2001, indicates the Agency was to increase the duration of fathers visits with Shelton upon fathers request.
On October 31, 2001, after the court set a hearing under section 366.26 for February 25, 2002, the court ordered visitation in which, after each timely visit, fathers time with Shelton would be increased by one hour, up to four hours. At that point, the Agency worker was given the discretion to increase visits to include an overnight visit.
The Agency interpreted this order to mean that fathers visits would be increased by an hour after each timely visit, upon fathers request. Father argues that the Agency was required to give him increased visitation without any action on his part. However, the Agencys interpretation of the courts order was not unreasonable. In the past, father had requested increased visitation and, finding this too much, requested a decrease in visitation. On October 29, 2001, the court specifically stated that increased visitation was to be at the fathers request, an arrangement that appears to have been designed to tailor visitation to fathers assessment of his readiness for it. In light of fathers earlier difficulty in managing increased visitation and the courts October 29 minute order, it was not unreasonable for the Agency to construe the courts October 31 order as continuing the requirement that father request increased visitation. Because the Agencys interpretation of the courts October 31 order was not an unreasonable one, we cannot agree that father was deprived of access to his child by the Agencys actions.
We also note that father was represented by counsel and, to the extent he believed he was being unfairly denied access to Shelton, he could have sought clarification of the courts order. (See In re Precious J. (1996) 42 Cal.App.4th 1463, 1467 [if mother believed reunification services were inadequate, she could avail herself of counsel to seek better services].) Other than leaving a message without any return phone number with the social worker, he did not do so until a hearing in February 2002. At that time, visitation began to increase. In light of these facts, we cannot conclude there was a denial of due process.
IV. DISPOSITION
The order terminating fathers parental rights and denying fathers section 388 petition is affirmed.
We concur: Kline, P.J., Lambden, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.