Opinion
A158261
11-22-2019
J.M., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1800202)
J.M. is the biological father of six-year-old J.B. The juvenile court denied J.M.'s requests to be deemed J.B.'s presumed father and to receive reunification services, and it set a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26 (.26). The court also determined, based on the record before it, that visitation would be detrimental to J.B. but that the court would allow visitation, for a minimum of once per month in a therapeutic setting, if it received verification from J.B.'s therapist that contact with J.M. "would be beneficial to [J.B.]."
The petition identifies petitioner as "J.M.," but the respondent's brief identifies him as "S.M." We refer to him as J.M.
J.M. petitions for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the order setting a .26 hearing, and to reverse the order regarding presumed parent status, or in the alternative, to reverse the order denying reunification services to J.M. as the biological father. He also contends the court's visitation order improperly confers upon J.B.'s therapist the discretion to decide whether visitation should be permitted. We deny the petition and affirm the order in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
On February 16, 2018, the Children & Family Services Bureau of Contra Costa County (Bureau) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, after J.B., who was four years old at the time, and his younger sibling were found unattended in a motel parking lot. S.B. (Mother) was unconscious in a motel room and later admitted to a history of methamphetamine use and to using methamphetamine several hours before the police found her children unattended.
On February 20, 2018, Mother filed a health questionnaire listing J.M. as the biological father of J.B. The same day, J.B. was detained in foster care. Mother informed the Bureau that J.M. is not listed on J.B.'s birth certificate, but paternity testing had been done for child support purposes. On March 7, 2018, a Bureau social worker spoke with J.M. by phone. J.M. confirmed he and Mother were never married and that Mother has cared for J.B. since his birth. The Bureau reported that "[JM] was made aware of the open dependency case, and stated that he was unsure as to how he would like to proceed, but would contact the undersigned [social worker] if he would like to be involved." On March 9, 2018, Mother pleaded no contest to the petition. J.M. did not appear at the hearing.
In April 2018, the Bureau filed a disposition report listing J.M. as J.B.'s alleged father. The report lists a Martinez address for J.M., summarizes the social worker's March 7, 2018 telephone discussion with J.M., and states J.M. has not made subsequent contact with the Bureau. J.M. did not appear at the contested hearing in May 2018. The court determined that J.M. was J.B.'s biological father, but ordered no reunification services or visits for him "until he presents himself to court."
A six-month review hearing was held in November 2018. J.M. did not appear, and the Bureau reported J.M. had still not made contact with the Bureau. The Bureau's status review report states that J.B. is adjusting well to his foster family placement with his half-sibling, that he had began therapy to address behavioral issues, and that the foster parents expressed interest in adopting both children.
The Bureau's January 2019 status update states that on December 14, 2018 and January 3, 2019, it sent J.M. cover letters with a JV-505 Statement Regarding Parentage, and that the Bureau received neither a response from J.M. nor notification the letters were undeliverable. J.M. did not appear at the January 16, 2019 contested review hearing.
The Bureau's April 2019 status review report states the Bureau conducted another due diligence search and located and spoke with J.M.'s parents, and "ensured through the paternal grandparents that [J.M.] is aware the [Bureau social worker] has been trying to contact him and that he should present himself to the Court to establish paternity." The report states the paternal grandmother (Grandmother) told the social worker that J.M. has been "entirely uninvolved in [J.B.]'s life due to relationship problems with [Mother] and his struggles with substance addiction" and that J.M completed a treatment program and has been sober for approximately six to seven months, "but it remains unclear if he would like to be a part of [J.B.'s] life." As of April 12, 2019, the Bureau had received no response from J.M. as to whether he was interested in being involved in the dependency case. The Bureau recommended adoption by the foster parents due to Mother's continued inability to achieve reunification and J.M.'s lack of response to the Bureau's efforts to engage him in the dependency proceeding. J.M. did not attend the April 12, 2019 twelve-month review hearing.
On May 8, 2019, J.M. telephoned the Bureau social worker and stated he wanted to receive reunification services and be raised to presumed father status. In May 2019, the social worker met with J.M. and Grandmother. According to the Bureau's June 2019 status report, J.M. said he was J.B.'s biological father and had been paying child support, but he has never met J.B. J.M. reported he had been sober for approximately eight months after a 10-year addiction to methamphetamine. J.M. did not feel ready to be a parent when Mother informed him she was pregnant. Additionally, he and Mother had a contentious relationship in which they were both using methamphetamine, and Mother had made false police reports alleging domestic violence against him. J.M. also reportedly told the social worker that the reason he had waited over a year to seek reunification services was because he had been discouraged by a former social worker from becoming involved.
The Bureau's report states case notes document the Bureau's March 7, 2018 call with J.M. informing him of the dependency case and J.M.'s response that he was unsure how he wanted to proceed and would contact the Bureau after consulting with his parents. According to the Bureau's report, case notes also document a second call on July 18, 2018 with J.M.'s father (Grandfather), in which Grandfather was told J.M. should contact the Bureau to obtain further information, as well as March 21, 2019 and April 9, 2019 calls with Grandmother, and a March 25, 2019 call with Grandfather during which they were informed of the April 12, 2019 review hearing and told that if J.M. wanted to receive services he needed to attend the hearing. As noted above, J.M. did not appear at the April 12, 2019 hearing, and he did not contact the Bureau until May 8, 2019.
J.M. first appeared in juvenile court on June 7, 2019 and requested presumed parent status, reunification services, and visitation. Counsel was appointed for J.M., and J.M. requested a hearing regarding his status and visitation. The court set the hearing for July 5, 2019 and denied visitation pending the hearing.
On July 5, 2019, J.M. filed a JV-505 Statement Regarding Parentage, in which he declares his parentage has been established by a court judgment in Contra Costa County and requests the court to find him to be the presumed parent. He declares he has told his relatives, social workers, and the child support agency that J.B. is his child, but that he has not been able to participate in any activities with his son, which "has, in part, been due to mother not wanting me to have contact with the child and also due to threats of bodily harm that have been made against me on Facebook through third parties." J.M. also states he has paid child support since he became the adjudicated father.
On July 5, August 9, and August 16, 2019, the court held an evidentiary hearing on J.M.'s motion to be elevated to presumed father. J.M. testified he wanted to raise J.B., and that J.M. had grown up, has a steady job, and is able to take care of J.B. He knew Mother became pregnant while they were living together, and he believed the child was his despite Mother telling him he was not the father. Mother was not living with J.M. when J.B. was born, but Mother notified him of the birth. J.M. was ordered to take a DNA test through child support services, and when J.B. was five months old, J.M. learned he was J.B.'s biological father. He began paying child support in January 2014. In the child support proceedings, J.M. was granted supervised visitation, but Mother denied his request to visit J.B., and he made no further efforts. J.M. has not had any contact with Mother since early 2014.
J.M. testified that he received death threats from Mother's boyfriend "Greg," who was an MS-13 gang member, and that these threats prevented him from pursuing visits with J.B. According to J.M., Greg threatened him through Facebook and emails, but J.M. did not print copies of the threats or notify law enforcement. Although J.M. feared for his life due to Greg's threats, he did not fear for J.B.'s life. J.M. testified he did not know if Mother was still with Greg. Most of J.M.'s information was third-hand from a friend who had access to Mother's Facebook profile. By the summer of 2018, J.M. knew J.B. was no longer living with Mother, and he believed J.B. was living with a man named Raul, who is the father of J.B.'s half-sibling.
J.M. stated he was not aware of what "the dependency hearings really meant" until May 2019 when he met with the Bureau social worker. He acknowledged, however, that he spoke with a Bureau social worker in April 2018 and that his parents had told him the Bureau social workers wanted him to call them. J.M. testified that in March or April 2018, he was told by a Bureau social worker that the father of J.B.'s half-sibling was seeking custody of J.B. and that J.M. did not have any rights.
The social worker who initially handled the case testified in accordance with the statements in the Bureau status reports. The social worker confirmed that when he spoke with J.M. on March 7, 2018, he explained the juvenile dependency process and the different rights of presumed fathers and alleged fathers, and he also told J.M. of the next court date. The social worker testified J.M. responded that he would need to consult with his parents and the social worker never heard back from J.M.
Grandmother and Grandfather both testified that Mother permitted them to have one visit with J.B. during his first year, but she would not allow J.M. to attend. They were fearful of Mother's gang member boyfriend, and did not pursue further visits. But Grandmother was not concerned about J.B.'s safety around Mother's boyfriend.
Following the evidentiary hearing, the juvenile court denied J.M.'s motion to raise his status to presumed father. The court stated that although J.M. had been told in March 2018 of the dependency proceeding, he waited fifteen months to seek presumed father status. The court further found that it was not in J.B.'s best interest to provide reunification services to J.M. Regarding visitation, the court referred to J.B.'s therapist's view that J.B. has difficulty understanding why his father has never met him and that visitation could be destabilizing to J.B. The court stated on the record that "visitation should not occur at all unless it was in some type of a therapeutic situation" and Ms. Yates (J.B.'s treating therapist) "felt that [J.B.] would benefit from this contact." The court's minute order states: "If the therapist, Ms. Yates, believes it would be beneficial to [J.B.] to see [J.M.], then visitation will be once a month." The court also set a .26 hearing for December 13, 2019.
In August 2019, J.M. filed a notice of intent to file a writ petition challenging the setting of the .26 hearing. His petition requests that we set aside the order setting the .26 hearing, reverse the order regarding presumed parent status, or in the alternative, reverse the order denying J.M. reunification services and remand for the juvenile court to remove the therapist's discretion portion of the order regarding visitation.
Mother did not file a notice of intent to file a writ petition.
DISCUSSION
A. Presumed Father Status
"A presumed father is 'one who "promptly comes forward and demonstrates a full commitment to his paternal responsibilities-emotional, financial, and otherwise." ' " (In re E.O. (2010) 182 Cal.App.4th 722, 726.) "[O]nly a presumed, not a mere biological, father is a 'parent' " under the Uniform Parentage Act (Fam. Code, § 7600 et seq.). (Zacharia D. (1993) 6 Cal.4th 435, 451.) Designation as a presumed father confers the greatest paternity rights (id.), including the rights to reunification services and to possible custody of the child (In re E.O., at p. 726). To become a presumed father, a man must fall within one of the categories enumerated in Family Code section 7611. (In re E.O., at p. 726.)
Family Code section 7611 states: "A person is presumed to be the natural parent of a child if the person meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: [¶] (a) The presumed parent and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [¶] (b) Before the child's birth, the presumed parent and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [¶] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [¶] (c) After the child's birth, the presumed parent and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) With his or her consent, the presumed parent is named as the child's parent on the child's birth certificate. [¶] (2) The presumed parent is obligated to support the child under a written voluntary promise or by court order. [¶] (d) The presumed parent receives the child into his or her home and openly holds out the child as his or her natural child. [¶] (e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative. [¶] (f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.
It is undisputed that J.M. and Mother were never married. Under Family Code section 7611, subdivision (d), a man who did not legally marry or attempt to marry the child's natural mother may become a presumed father if he receives the child into his home and openly holds the child out as his natural child. J.M. has the burden to establish these foundational facts by a preponderance of the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.)
Although courts have reviewed decisions denying presumed father status under a substantial evidence standard (In re M.C. (2011) 195 Cal.App.4th 197, 213), the court in In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.) concluded the correct standard where the party with the burden of proof fails to prevail below is whether the evidence compels a judgment in his favor as a matter of law. I.W. reasoned: "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (I.W., at p. 1528.) We conclude that under either standard of review, the juvenile court did not err in denying presumed father status to J.M.
J.M. admits he does not meet the first prong of Family Code section 7611, subdivision (d), because he has never received J.B. into his home. He argues, however, that he was prevented from receiving J.B. into his home by Mother's refusal to communicate with him and by his fear of threats made by Mother's gang member boyfriend. J.M. asks this court to find him to be a presumed father under an exception first articulated in Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
In Kelsey S., a biological father appealed from an order in an adoption proceeding finding that he was not a presumed father and that therefore his consent to the adoption was not required. (Kelsey S., supra, 1 Cal.4th at pp. 822-823.) The father never lived with his child, but he filed an action two days after the child's birth seeking to establish his parental rights and to obtain custody of her. (Id. at p. 822.) He knew the mother planned to consent to the child's adoption, so he attempted to serve the prospective adoptive parents with notice of his action. (Ibid.) Kelsey S. determined that the statutory distinction between natural fathers and presumed fathers is constitutionally invalid "only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities" (id. at p. 849), and it remanded for the superior court to make this determination (id. at p. 852). As Kelsey S. explains, "[t]he father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate 'a willingness himself to assume full custody of the child-not merely to block adoption by others.' [Citation.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Ibid.) A court "must consider whether [the father] has done all that he could reasonably do under the circumstances." (Id. at p. 850.)
The juvenile court here found that J.M. learned he was J.B.'s biological father in October 2013 and that he was directly notified of the dependency proceeding three weeks after the petition was filed. The court highlighted the circumstances that fifteen months had elapsed since J.M. knew of a court proceeding and that he chose "not to come to court for a full fifteen months after that notice." The court also thought it "important to note . . . [¶] . . . I think it's been pretty clear from [J.M.'s] testimony that he opted out of actively participating in [J.B.'s] life initially . . . But the first time [J.M.] articulated that he wanted to be involved in this case, wanted the presumed father status so that he could raise him, that was well over a year into this case approaching closer to the 18-month mark."
Regarding J.M.'s testimony concerning the alleged threats, the court "agree[d] that there was . . . a concern about threats being made towards him from the MS-13 and feeling that it was best to back off from a mother," but that "it's hard to understand how feeling like that was a threat to [J.M.] and his family, that that would not have correlated to a concern of . . . [J.B.'s] welfare, they are somewhat irreconcilable, but . . . the reality is for whatever reason a parent can't opt out of a case for basically 16, 17 months and then realistically assert that they then want to be the presumed parent. It's just not allowable, and I'm just indicating what the law requires the Court to do . . . ."
The evidence establishes that J.M. was told of the dependency proceeding in March 2018 and planned to discuss the matter with his parents before deciding how to proceed. But after not hearing from J.M. for over a year, the Bureau made further efforts to locate him and to inform him of the next review hearing. A Bureau social worker spoke with J.M.'s parents on March 21, 25 and April 9, 2019, and provided them with the date, time, and location of the April 12, 2019 12-month status review hearing, and told them that J.M. needed to appear at that hearing if he wanted reunification services. J.M. did not appear at the April 12, 2019 hearing and did not contact the Bureau until May 8, 2019, fifteen months after the original petition was filed and fourteen months after J.M. first spoke with the Bureau social worker in March 2018. J.M. testified he was uncertain how long Mother was in a relationship with "Greg" and whether she was still involved with him. By the summer of 2018, J.M. believed J.B. was living with another man who was the father of J.B.'s half-sibling.
Based on this record, we conclude the juvenile court did not err in denying J.M.'s request for presumed father status. Substantial evidence supports the juvenile court's finding that J.M. did not establish either presumed father status or Kelsey S. father status. On this record, a finding in favor of J.M. is not compelled as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) Unlike the father in Kelsey S., J.M. did not "promptly attempt to assume his parental responsibilities as fully as the mother will allow" or do "all that he could reasonably do under the circumstances." (Kelsey S., supra, 1 Cal.4th at pp. 849-850.) J.M. did not attempt to enforce the visitation order entered in the child support case, and even after being notified of the dependency proceedings, J.M. chose not to become involved for another fifteen months. "The law does not require children to wait so long for parents to become sufficiently interested." (In re Marcos G. (2010) 182 Cal.App.4th 369, 391.)
B. Reunification Services
J.M. argues the court erred in finding it was not in J.B.'s best interest to provide reunification services to J.M. given J.M.'s late entry into the proceeding. Under Welfare and Institutions Code section 361.5, subdivision (a), "the juvenile court may order [reunification] services for the child and the biological father, if the court determines that the services will benefit the child." (Italics added.) The "statute makes reunification services mandatory for presumed fathers but discretionary for biological fathers." (In re Raphael P. (2002) 97 Cal.App.4th 716, 725, fn. 7.) We review the court's finding under the abuse of discretion standard. (In re Elijah V. (2005) 127 Cal.App.4th 576, 589.)
J.M. argues the court erred in finding that he had notice of the proceedings in March 2018. He states, without citation to the record, that "no one in [J.M.'s] family had a clear idea what was taking place until 2019." J.M. appears to argue that the Bureau social worker's March 2018 telephone call with J.M. provided insufficient notice of the proceedings because the social worker's testimony "seemed to indicate he gave very little information to [J.M.] about the case." In fact, the social worker testified he gave J.M. foundational information about the dependency proceedings, explained what it meant to be an alleged father or a presumed father, and encouraged J.M. to attend the next court hearing. Then J.M. stated he planned to speak with his parents and would get back to the Bureau.
J.M. claims Welfare and Institutions Code section 316.2, subdivision (b), and California Rules of Court, rule 5.635 require that alleged parents must be given a copy of the petition, notice of the next scheduled hearing, and a JV505 form. He cites In re Marcos G., supra,182 Cal.App.4th at page 382, for the proposition that failure to comply with the statute and rule may be viewed as harmless error, but argues that in his case such error is not harmless because "[i]t became clear at the hearing on the father's motion that had he and the family known more they would have become involved." We are not persuaded. As discussed above, here there is evidence that in March 2018, J.M. was informed of the nature of the proceeding by telephone, that the Bureau sent him notification of the detention proceeding in March 2018, and that it sent the JV505 form on two occasions. J.M. made no effort to become involved until May 2019, and he cites no evidence to the contrary. On this record, any alleged failure to comply with Welfare and Institutions Code section 316.2, subdivision (b), and California Rules of Court, rule 5.635 was harmless. (In re Marcos G., at p. 382.)
The court found the Bureau exercised due diligence to locate J.M. and make telephone contact with him at the outset of the proceedings, while J.M. chose not to engage. The record supports the court's findings. During the social worker's testimony, the court inquired about notice sent by the Bureau at the outset of the case. The Bureau's counsel referred to the court file to confirm that on March 9, 2018, the Bureau sent a contact letter to J.M. at his Martinez address. On December 14, 2018 and January 3, 2019, the Bureau sent letters with the JV 505 forms to J.M. at his last known address in Martinez. J.M. claims he did not receive these documents because he had moved. But the Bureau reported that the letters were not returned undeliverable, and J.M. testified that when he moved from Martinez he had his mail forwarded to his parents' address in Moraga. "[F]or purposes of due process, actual notice does not require actual receipt or actual knowledge; notice by mail or other means reasonably calculated to provide actual notice is sufficient." (In re Emily R. (2000) 80 Cal.App.4th 1344, 1353.) Regardless of whether J.M. received the Bureau's letters, there is evidence he was given actual notice of the proceedings on March 7, 2018 when he spoke with the Bureau social worker. "The [Bureau] has a duty initially to make a good faith attempt to locate the parents of a dependent child [but] once a parent has been located, it becomes the obligation of the parent to communicate with the [Bureau] and participate in the reunification process." (In re Raymond R. (1994) 26 Cal.App.4th 436, 441.)
In March 2019—a year after J.M.'s initial discussion with the Bureau social worker—the Bureau social worker spoke with Grandmother and Grandfather on March 21, 2019 and March 25, 2019, respectively, and informed them of the 12-month review hearing scheduled on April 12, 2019. The Bureau reported that Grandmother stated J.M. knew about the dependency case but opted to stay uninvolved because of his conflicted relationship with Mother. J.M. did not attend the April 2019 hearing. And it was not until May 8, 2019, that J.M. contacted the Bureau and stated his desire for elevation to presumed father status. Substantial evidence supports the juvenile court's finding that J.M. had notice of the dependency proceedings.
Additionally, a biological father must prove that reunification services are in the best interests of the child. (In re Vincent M. (2008) 161 Cal.App.4th 943, 956.) Here, J.M. has never met J.B., and he did not become involved in the dependency proceeding until fifteen months after the petition was filed. On this record, we conclude the trial court did not abuse its discretion in denying reunification services to J.M. (In re Marcos G., supra, 182 Cal.App.4th at p. 391.)
C. Visitation
J.M. argues the order regarding visitation improperly gives J.B.'s therapist discretion to allow or withhold visitation, and he asks that we remand the case and direct the court to remove this condition from the visitation order. (See In re Hunter S. (2006) 142 Cal.App.4th 1497 [holding visitation determinations cannot be delegated to a therapist] (Hunter S.).)
Visitation between a parent and a child shall occur unless the juvenile court finds visitation would be detrimental to the child. (Welf. & Inst. Code, § 361.5, subd. (f).) A finding of detriment must be supported by a preponderance of the evidence (In re Manolito L. (2001) 90 Cal.App.4th 753, 761-762), and we review the juvenile court's order for abuse of discretion (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067).
Here, the juvenile court's oral statements explaining its visitation ruling indicate its focus on J.B.'s best interests. The court stated, "I definitely think visitation should not occur at all unless it was in some type of therapeutic situation if Ms. Yates, who is [J.B.'s] treating therapist thought that would be appropriate. [¶] This doesn't sound like it would be, but I am suggesting that if there were to be some type of a communication from Ms. Yates, and it could be written, that she felt that [J.B.] would benefit from this contact in a therapeutic setting, then it would be allowable and I would authorize that to occur at a minimum of once per month. But there is a condition precedent. [¶] I'm hoping I'm making myself clear, that if the therapist believes that this would be beneficial to [J.B.] to see [J.M.], then I would authorize it to occur in a therapeutic setting for a minimum once per month. [¶] So if there is no communication, no verification that Ms. Yates thinks this is beneficial to [J.B.], because as it states right now I believe there is honestly enough information for me to make a detriment finding because he does not know [J.M.], he has never met him, he has already been having difficulty already, so I do think some type of liberalized visitation order would not be appropriate and would be detrimental for [J.B.], but I do want to leave open the possibility that if Ms. Yates feels this would somehow in a certain way be beneficial for [J.B.] to have that contact, that it should occur in a therapeutic setting at a minimum of once per month." The minute order reflecting the court's ruling simply stated: "If the therapist, Ms. Yates, believes it would be beneficial to [J.B.] to see [J.M.], then visitation will be once a month."
We may properly look to the juvenile court's oral pronouncements on the visitation issue to ascertain the totality of its ruling. (See People v. Contreras (2015) 237 Cal.App.4th 868, 880.) Fairly read, the reporter's transcript reflects the court's finding, based on the evidence presented, that visitation would be detrimental to J.B. unless the court received new information from J.B.'s therapist that visitation would be beneficial or appropriate in a therapeutic setting. Although a juvenile court cannot delegate to a child's therapist unlimited discretion to determine whether visitation will occur (In re Hunter S., supra, 142 Cal.App.4th at p. 1504), the court "may appropriately rely upon an evaluation by [a] treating therapist[] of the child['s] emotional condition and evolving needs" (In re Julie M. (1999) 69 Cal.App.4th 41, 51; see In re Chantal S. (1996) 13 Cal.4th 196, 213-214 [rejecting "unlawful delegation" challenge to court order providing visitation could commence when the father's chosen therapist determined the father had progressed satisfactorily].) Here, it cannot be said that the court delegated authority to J.B.'s therapist to order visitation in her discretion; instead, the court made reasonably clear that it would exercise its authority to allow visitation, at a minimum of once per month in a therapeutic setting, upon a communication from the therapist satisfactorily demonstrating that contact with J.M. would benefit J.B.
Contrary to J.M.'s assertion, Hunter S., supra, 142 Cal.App.4th 1497, does not compel a different result. In that case, the juvenile court made no finding of detriment and had in fact ordered visitation. The child, however, steadfastly refused visits with his mother, and coupled with the inaction of his therapists, the child was given "virtually complete discretion to veto visitation, a discretion he exercised without any oversight or direction by the court." (Id. at p. 1505.) In concluding these circumstances warranted reversal of the juvenile court's denial of the mother's petition to reinstate reunification services (Welf. & Inst. Code, § 388), the Hunter S. court explained: "By virtue of the court's persistent failure or refusal to enforce its visitation order, . . . [the mother] was denied any chance to demonstrate the bond she once held with her son might be salvageable." Simply put, Hunter S. is factually inapposite and does not support the relief J.M. seeks.
DISPOSITION
The petition for extraordinary writ is denied on the merits. (§ 366.26, subd. (l)(1)(c); Cal. Rules of Court, rule 8.452.) The request for a stay is denied, and the court's August 16, 2019 order is affirmed in all respects. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.