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In re V.F.

Dec 6, 2011
C067142 (Cal. Ct. App. Dec. 6, 2011)


C067142 Super. Ct. No. J8500


In re V.F. IV, a Person Coming Under the Juvenile Court Law. NEVADA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. V.F. III, Defendant and Appellant.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, the minor's father, appeals from the juvenile court's orders denying his petition for modification and terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) He claims the juvenile court erred by reducing his visitation with the minor when it terminated his reunification services and abused its discretion by denying his request to modify the order terminating services. We disagree and affirm.

Undesignated statutory references are to the Welfare and Institutions Code.


In October 2008, the Nevada County Human Services Agency (the Agency) filed a petition regarding V.F. IV, who was then a week old. The petition alleged that the minor's mother had a history of domestic violence, substance abuse and mental health problems, and father had a history of alcohol abuse.

According to the jurisdiction report, father had a lengthy history of arrests and police contacts for alcohol- and drug-related incidents. He had an outstanding warrant in Idaho on a probation violation for misdemeanor hit-and-run and driving under the influence (DUI) offenses and leaving the state to avoid apprehension. His Idaho probation officer described him as "a raving alcoholic" with "a history of . . . abusing alcohol and illicit drugs for years." (Italics omitted.) According to the probation officer, father had multiple DUI convictions in Idaho, had not completed any treatment, had not completed drug court, and was "facing approximately [one and one-half] years of time."

An addendum report stated that a police officer in Truckee had had multiple contacts with father. According to the officer, father was under the influence on most of these occasions. Police reports revealed several police contacts where father was very intoxicated.

The minor's mother left the state before the jurisdiction hearing and informed the social worker that she would not be able to reunify with the minor. Father, on the other hand, was initially cooperative with the Agency and began participating in services.

In December 2008, the Agency filed an amended petition alleging that "father has an alcohol abuse problem which impairs his ability to provide safe and consistent care of the newborn baby."

In January 2009, the juvenile court sustained the allegations in the amended petition and ordered reunification services.

At first, father's compliance with his case plan appeared promising. He attended AA meetings, group counseling and individual therapy. There were concerns about his use of Vicodin, which he took for back pain. On his own initiative he discussed with his doctor discontinuing this medication. Visits with the minor were described as positive and loving, and in February 2009, father began having overnight visits.

Father was prescribed Vicodin for pain stemming from a broken back he sustained in a vehicle accident four years prior.

By June 2009, however, father's attitude had changed. He told the social worker that he felt he did not have a problem anymore and he was "tired of doing all of the things that [the Agency] was asking." He believed he was "unfairly referred to CPS" and felt the Agency was the source of many of his problems. When asked about his plans for obtaining employment, he "responded in a very crude and inappropriate manner." He continued to test positive for opiates even though he stated he only used Vicodin when he worked, and he had not been working. He admitted that he sometimes took two or three pills at a time instead of a single pill as prescribed. He was upset about being subject to random drug testing, which he felt was interfering with his ability to obtain employment, and he told the social worker that he knew "how to beat" the tests.

In an effort to "clean up his legal issues," father had been incarcerated twice on outstanding warrants in California (Ventura and Nevada Counties), which resulted in interruptions in his counseling. In July 2009, he tested positive for Benzodiazepine and told the social worker "they must have put it in the food at jail." (Italics omitted.) Father's attendance at 12-step meetings had decreased and, according to his group counselor, he "attempt[ed] to beat the drug testing as well as manipulate other aspects of the program he is participating in." On the other hand, his therapist, who was working with him "on issues of denial and accepting responsibility as well as anger issues," felt he had begun to show more insight.

Father consistently visited the minor except when he was incarcerated, and visits continued to be very positive. He "display[ed] responsibility, follow through and enjoyment in almost all areas related to arranging and participating in the visits" and was responsive to suggestions.

In November 2009, the Agency received a report that father had told several friends "he had taken 'acid' and cocaine" while the minor was in his care and that "he was able to 'beat the drug test with CPS.'" When confronted about the statements, he claimed he "was just joking around."

Father's testing schedule was increased to three times per week. He was reportedly "demanding, belligerent and rude" when he came in for testing. He failed to test on numerous occasions in November and December and submitted at least five diluted samples, whereas he had had no diluted samples prior to November 2009. In the week preceding the 12-month review hearing, he refused to submit to an unscheduled test and failed to show up for another test.

Father was described as "disruptive and difficult" in group counseling sessions. His counselor stated that he would have been expelled from the program if it were not for the Agency's requirement that he attend. Although he had completed the minimum number of individual counseling sessions required and was making progress, he did not follow a recommendation that he attend additional sessions. And although his in-home parenting trainer found him responsive to her suggestions, he was inconsistent about keeping appointments and was "not making progress as quickly as she would like." She felt that father's "maturity level [came] into play with his parenting" and that he had not made sufficient progress for her to recommend placing the minor in his care.

Visitation, on the other hand, continued to be "one of the most positive aspects of th[e] case," and there appeared to be a strong bond between father and the minor. Father was open to suggestions made during visits and was very attentive to the minor's physical needs.

At the 12-month review hearing in March 2010, father waived further reunification services and argued that the minor should be returned to him.

The juvenile court acknowledged father's close bond with the minor, but found his progress in counseling and substance abuse treatment had been "poor," that he lacked maturity and stability, and that he had a "bad attitude" in treatment and with other service providers. Consequently, the court terminated father's reunification services and noted that, in fact, they had been waived by father, and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.

At the same hearing, the minor's attorney noted there was a possibility the minor would be placed in the home of a relative who lived "quite a distance" away, and she requested that visitation be reduced from weekly to twice a month if that occurred. Father's attorney objected to the reduction in visitation because father had a strong bond with the minor and "it would be detrimental to pull [him] out of [the minor's] life at this point." The court ordered visitation at least once a week unless the minor was placed with an approved relative, in which case visitation was to be a minimum of twice a month, with the minor being transported for one of the visits and additional visits to occur if father was able to "arrange to make the trip."

Father filed a petition for extraordinary writ, claiming, in part, that the juvenile court erred by reducing visitation when it terminated services. This court summarily denied his petition on the merits pursuant to Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1513-1514 (Joyce G.). (V.F. v. Superior Court (May 20, 2010, C064448).)

In April 2010, the minor was placed with the paternal aunt and her family in Southern California. By this time, minor was approximately one and a half years old. Although the minor initially exhibited behavioral problems, these dissipated and he bonded with the family. Other than the first visit, which the social worker terminated because father "became inappropriate and hostile," the minor enjoyed visits with father. However, when the paternal aunt brought the minor to father for visits, the trip could take as much as 12 hours and the minor was "wiped out afterwards." In addition, father began working seven days a week, which affected his availability to make trips to Southern California.

In June 2010, father filed a request to modify the court's previous order, in which he sought further reunification services. He alleged he had continued to attend counseling and to meet with a parenting counselor, had attended a parenting class, was attending AA meetings and participating in a drug rehabilitation group, and had tested three times a week since the previous hearing. He also alleged he had been "sober for over a year and a half" and had "matured greatly." He asserted that further services would be in the minor's best interest because he and the minor shared a "deep bond" and the minor would be his sole focus, whereas there were five other children in the paternal aunt's home.

Father's request also sought to withdraw his waiver of reunification services. He does not challenge the juvenile court's denial of that motion.

Attached to father's request was documentation supporting his regular attendance at AA meetings and his drug testing records. In addition, letters were submitted from the program director of his substance abuse program, his therapist, his parenting counselor and one of his employers, attesting to his recent maturity and the significant progress he exhibited in his attitude and in addressing his substance abuse issues. Father's therapist and parenting counselor also expressed that they did not feel he posed any physical danger to the minor.

The juvenile court granted father a hearing on his request.

In September 2010, a "relationship study" was conducted by Dr. Eugene P. Roeder, a psychologist. The study found the minor to be "much more closely attached to his aunt than his father." Dr. Roeder described father's relationship with the minor as "more like that of an extended family member, a beloved uncle, rather than a parent/child relationship." He felt that removal of the minor from the paternal aunt's home would be "damaging to him and his overall development" and would not be in his best interest, although he felt the minor "most likely would . . . recover from this trauma" within six to 12 months. He concluded: "In this examiner's opinion, the relationship study results indicate continuing the relationship between [the minor] and his father is in his best interest. Whatever his shortcomings, [father] clearly loves and adores [the minor], and the [minor] does for the most part enjoy and appreciate this attention and affection and benefits from it. However, the evaluation results also indicate this relationship is not so beneficial to [the minor] that continuing the relationship would outweigh the benefits of a permanent plan such as adoption. While [the minor] and his father do enjoy a positive relationship, it is not so substantial that he would be greatly harmed if this relationship were terminated."

The hearing on father's modification request took place in December 2010, in conjunction with the section 366.26 hearing. By this time, minor was approximately two years old.

Father's parenting counselor testified consistently with her letter, reiterating that she had seen a lot of growth in father and that he had progressed sufficiently to be able to safely parent the minor. The social worker testified that she, too, had seen a change in father, in that he was more mature and more "appropriate" when working with her. She felt he was committed to sobriety and did not pose a risk to the minor at that time. Other service providers presented similar testimony.

Father testified that he had been sober for two years and had stopped taking pain pills. He was living with his girlfriend (who was pregnant) in her mother's home. He attended college and worked 40 hours per week. He was working with a lawyer in connection with his outstanding warrant in Idaho.

Father explained that his commitment to sobriety became more serious after his unsupervised visits with the minor were discontinued. He testified he regretted not taking advantage of the resources offered to him by the Agency from the beginning. He felt it was in the minor's best interest to reunify with him because he loved the minor and "would do anything [he] could for him." He also felt that his experience with overcoming substance abuse gave him an "edge on parenting" in terms of helping the minor to succeed and to "never go down a bad road."

Dr. Roeder testified that the minor's development was at a "critical stage" with regard to forming attachments and in terms of how a lack of stability could affect him in the future. He felt that "removing [the minor] from his aunt would clearly not be in his best interest and would be harmful to [him]," although he believed the minor eventually would recover from this trauma. He had observed a positive relationship between father and the minor but the relationship was not strong enough to be categorized as an attachment. Dr. Roeder continued to feel that the permanency of adoption outweighed the benefit to the minor of continuing a relationship with father. However, if reunification with father was done gradually and in such a way that the minor could maintain his attachment to his aunt, Dr. Roeder did not feel it would be detrimental to him.

The juvenile court denied father's request for modification. It concluded that a sufficient change of circumstances had not been shown because, although father had gained some maturity and continued in his sobriety, he was in a new relationship, was expecting another child and had "outstanding criminal matters." The court stated it could not rely on father "remaining sober given his lengthy history of substance abuse" and found it "completely unknown" if the relationship with his girlfriend would last "or if the father's sobriety will last given the current situation."

Father contends that since he testified that he had only one outstanding criminal warrant, the juvenile court inaccurately found that he had criminal "matters" pending in Idaho. We view the juvenile court's use of the plural to be appropriate since in connection with his violation of probation for leaving the state without permission, defendant had conditions of probation that had not been completed, including an outstanding fine and his failure to complete substance abuse programming. All these "matters" were yet to be resolved.

"Most important" to the court, however, was the lack of evidence that a modification would be in the minor's best interest. The court pointed to Dr. Roeder's testimony that removal of the minor from his current placement would be harmful for a period of time and not in his best interest. The court noted that the minor looked to his aunt as a parent and was positively attached to her, whereas his relationship with father did not rise to an attachment. The court found it "highly disturbing" that it was "being asked to gamble that a child of this age would probably get over" being removed from his current placement and that father would remain sober given his lengthy history of substance abuse. The court concluded that to disrupt the minor's attachment to his aunt would be detrimental to him and "clearly not in his best interests."

Following the court's ruling, additional testimony was received from the social worker as to the section 366.26 hearing. She initially testified that her recommendation for adoption would "probably" change if there was not going to be any postadoption contact between father and the minor, but then stated it would be in the minor's best interest to be adopted regardless of the contact he would have with father.

The juvenile court found the minor adoptable and declined to apply the beneficial relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) The court noted that the minor was detained just after his birth, had been in four previous placements, and had been in the aunt's home for almost a year as compared to the relatively small amount of time he had spent with father. The court expressed concern that to "break the only real parental attachments [the minor] has ever known . . . could have devastating consequences to [the minor] for the rest of his life and being unable to attach to any other person in this world again." As the father did not have a parental relationship with the minor, and as Dr. Roeder had found that the benefit to the minor of maintaining his relationship with father was outweighed by the benefit of adoption, the court terminated parental rights and ordered adoption as the permanent plan.

Father does not challenge this ruling.


I. Visitation

Father contends that the juvenile court erred by reducing his visits to a minimum of twice per month at the hearing at which his reunification services were terminated. We disagree.

Father filed a petition for extraordinary writ following the termination of reunification services, which set forth this issue. As his petition was summarily denied, he is entitled to raise the issue on appeal. (§ 366.26, subd. Joyce G., supra, 38 Cal.App.4th at p. 1514.)

When reunification services are terminated, "[t]he court shall continue to permit the parent or legal guardian to visit the child pending the [section 366.26] hearing unless it finds that visitation would be detrimental to the child." (§ 366.21, subd. (h).)

The juvenile court is accorded broad discretion in matters of visitation. On appeal, absent a showing of a clear abuse of discretion, the reviewing court will not interfere with the exercise of that discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.)

Turning to the matter before us, we discern no abuse of discretion. The juvenile court ordered visitation at least once a week unless the minor was moved to the home of his relatives in Southern California, at which time visitation was to be a minimum of twice a month with additional visits if father was able to travel to the minor. The court's order properly balanced the minor's need for a stable, permanent home with father's interest in continuing to have contact with him.

Father suggests the court was precluded from reducing visits to the extent the minor's bond with him would be eroded in any fashion. He relies on In re David D. (1994) 28 Cal.App.4th 941, a case decided by this court, in which the mother was limited to one "final visit" with her children after her services were terminated, despite overwhelming evidence that the children were bonded to her and would benefit from continuing to have contact with her. (Id. at pp. 954-955.) This court noted the injustice of curtailing the mother's visitation because it prevented her from establishing regular visitation, which is a requirement to establish a statutory exception to adoption based on a beneficial parent-child relationship. (Id. at p. 955.) In a footnote, this court contrasted the single visit allowed the mother with a visitation order of "once weekly or once monthly," which would allow a parent to establish regular visitation. (David D., at p. 955, fn. 10.) This court concluded that the juvenile court ignored the children's best interests, in part, "by unreasonably limiting visitation after the termination of reunification services." (David D., supra, at p. 955, italics added.)

Here, the juvenile court's visitation order allowed father regular contact with the minor and was a reasonable limitation on visitation, accommodating father's interest in maintaining the relationship while minimizing the disruption to the minor of having to travel to visits. Father does not cite any authority requiring the juvenile court to maintain visits at the same frequency after reunification services have been terminated as during the reunification period. Such a requirement would hinder the goal of the proceedings once reunification efforts have ended, when the focus shifts from fostering the parent-child relationship to providing the child with stability and permanence.

Father also contends that the "severe reduction" in his visitation constituted a violation of his right to substantive due process. Initially, we note that father did not make this argument in the juvenile court. Most claims, including constitutional claims, may be deemed forfeited on appeal if not raised in the juvenile court. (In re A.E. (2008) 168 Cal.App.4th 1, 5 [father forfeited due process challenge by failing to object in juvenile court to order directing him to participate in counseling sessions]; In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [mother forfeited due process claim that delay rendered unfitness finding stale].)

Even if we consider father's claim on the merits, he cannot prevail. The California Supreme Court has addressed substantive due process as it applies in dependency proceedings: "In substantive due process law, deprivation of a right is supportable only if the conduct from which the deprivation flows is prescribed by reasonable legislation that is reasonably applied; that is, the law must have a reasonable and substantial relation to the object sought to be attained." (In re Marilyn H. (1993) 5 Cal.4th 295, 306-307 (Marilyn H.).) "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect." (Id. at p. 307.)

"The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one. [Citation.] The state's interest requires the court to concentrate its efforts, once reunification services have been terminated, on the child's placement and well-being, rather than on a parent's challenge to a custody order." (Marilyn H., supra, 5 Cal.4th at p. 307.)

Father's due process argument emphasizes the interest of parents in the companionship, care, custody, and management of their children while ignoring the competing and compelling interest of the state in providing permanent homes for dependent children who cannot be returned to their parents. The juvenile court's visitation order here gave appropriate primacy to the minor's need for stability and permanence while still assuring father regular, albeit reduced, contact with the minor. Father's due process rights were not violated.

II. Modification

Father also contends the juvenile court abused its discretion by denying his request for modification. Again, we disagree.

Section 388, subdivision (a), provides in part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."

Section 388 permits modification of a dependency order if it is established that there has been a change of circumstance and that the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The petitioning party has the burden of proving both of these requirements by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068.)

The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) "[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child." (In re Jasmon O. (1994) 8 Cal.4th 398, 419 (Jasmon O.).)

A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (Jasmon O., supra, 8 Cal.4th at p. 415.) A court abuses its discretion when its decision exceeds the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Ibid.)

Father argues he demonstrated a change of circumstances by presenting evidence from numerous witnesses that he had matured, he had fully engaged in various services subsequent to the juvenile court's previous order, and he was maintaining his sobriety. He also maintains he established that the requested modification was in the minor's best interest because there was testimony that the minor would benefit from continuing his relationship with father. It was the insufficiency of the evidence on this second requirement that the juvenile court considered "[m]ost important" when it denied father's request. Even if we presume father met his burden as to changed circumstances, we are not persuaded that the court abused its discretion in finding the proposed modification was not in the minor's best interest.

The evidence before the juvenile court established that the minor had formed a positive attachment to the paternal aunt and it would be harmful to him to be removed from her home. On the other hand, the minor's relationship with father, while positive, did not amount to an attachment. Developmentally, the minor was at a "critical stage" in terms of his ability to form attachments and his need for stability. It was the opinion of Dr. Roeder, as well as the social worker, that father's relationship with the minor was not so beneficial that its preservation outweighed the benefits to the minor of adoption.

Father argues to the contrary, relying in part on a statement in Dr. Roeder's written report that "continu[ing] the relationship between father and [the minor] will be in [the minor's] best interest." However, Dr. Roeder also stated "the evaluation results also indicate this relationship is not so beneficial to [the minor] that continuing the relationship would outweigh the benefits of a permanent plan such as adoption. While [the minor] and his father do enjoy a positive relationship, it is not so substantial that he would be greatly harmed if this relationship were terminated." Thus, whatever Dr. Roeder intended by the statement relied on by father, it was not that the minor's relationship with father should take precedence over being adopted by his aunt. Moreover, we note that Dr. Roeder conditioned his assessment on father's behavior and functioning, a gamble the juvenile court, acting within its discretion, was not willing to make.

Dr. Roeder wrote, "The relationship study results indicate, if [minor] does remain placed with his aunt, her decision to continue the relationship between father and son would be in [minor's] best interest as long as [father's] behavior and functioning remains positive and appropriate." (Italics added.)

Father also criticizes the juvenile court for finding that removing the minor from his current placement would be detrimental despite Dr. Roeder's testimony to the contrary. We note, preliminarily, that the focus of the inquiry is on whether granting the requested modification would be in the child's best interest, not whether it would be detrimental to the child. Here, there was ample evidence that removal from the paternal aunt's home would not be in the minor's best interest.

In any event, Dr. Roeder testified that removing the minor from his placement "would be harmful to [him]." He described the minor as being at a critical stage in terms of forming attachments and that a myriad of problems can arise when this is not allowed to occur. Although Dr. Roeder testified he did not believe it would be "detrimental" to the minor if he were removed from the aunt's home, he clarified that he meant it would not "cause a lasting harm to the [minor]," as he thought the minor "would eventually recover from the trauma." He admitted he could not be certain of this. Based on all of this evidence, the court could conclude that removal from the paternal aunt's home would not be in the minor's best interests, notwithstanding Dr. Roeder's definition of the word "detrimental" or his assessment based on that definition.

Father also takes issue with a statement by the juvenile court that removing the minor from the aunt's home could "set[] him up for an attachment disorder," claiming the court was not qualified "to make its own psychological diagnosis." We note that the court did not ground its decision on his belief the minor would suffer from an attachment disorder. Read in context, the court's comment was part of a statement it made to father after the court had already set forth the facts upon which it was basing its decision and the reasoning underlying its ruling.

The court stated the facts, its ruling and the reasons for its ruling. The court then said, "Based on the above I feel I must deny the motion. [1] And I want to state to the Father that I do find his efforts in the last year laudable. You know[] that you're doing this for yourself and you're doing this for your future and for your soon to be fourth child's future. But life for [the minor] has gone on, and he has formed these bonds. And if he were to be removed from this home where he has developed these attachments it sets him up for an attachment disorder that we deal with in other cases every day. And it would spell disaster for him for the rest of his life. And I can't risk that based on the evidence that I have before me." (Italics added.)

Furthermore, we note that Dr. Roeder testified it was "essential for a child's positive emotional development" to be able to "form relationships in a stable environment," and that "[a]ll kinds of behavioral, substance abuse, mental health and relationship problems" result when this does not occur. Such testimony directly supports an inference that the minor could have attachment problems if this process was disrupted. There is no reason to believe that the court meant anything more than this when it used the term "attachment disorder."

Father maintains it was unfair for the juvenile court to focus on the absence of a "current bond" between the minor and him because he was "denied the chance to maintain his regular level of contact with the minor." He relies heavily on In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.). Hunter S. involved a unique situation in which the court had ordered visitation, but visitation was essentially vetoed by the child's therapists and the child, who said he did not want to see his mother. (Hunter S., supra, 142 Cal.App.4th at pp. 1501-1502.) By way of a modification petition, mother sought to have the court enforce its visitation order, contending she was effectively denied any visitation. Without making a finding of detriment, the juvenile court denied the petition, saying it was not in the child's best interest due to the mother's absence from the child's life. The appellate court held that the juvenile court abused its discretion by effectively not enforcing the visitation order and delegating unlimited discretion over whether visitation should occur. The court observed that the juvenile court's "reasoning stood section 388 on its head" because the denial of modification was the direct result of that court's failure to enforce its own visitation order. (Hunter S., supra, 142 Cal.App.4th at p. 1507.) The court held that "absent a finding of detriment it is incumbent on the juvenile court to discharge its duty to ensure the parent's right of visitation is preserved, under conditions consistent with the child's well-being." (Id. at p. 1508, italics added.)

Here, on the other hand, father was not denied visitation. He was granted regular visits, with the minor being transported a substantial distance once a month to accommodate the visitation schedule and with a provision for additional visits if he was able to travel to the minor. As mentioned previously, once reunification is no longer being pursued, the court's focus is on the needs of the child for stability and permanence, not on the parent's interest in maintaining a relationship with the child. (Marilyn H., supra, 5 Cal.4th at p. 309.) The juvenile court was under no obligation to maintain the status quo as to visitation once reunification efforts had ended if this would undermine these needs. Instead the court was required to ensure father's right to visitation, but to do so "under conditions consistent with the child's well-being." (Hunter S., supra, 142 Cal.App.4th at p. 1508.) The balance struck by the court here was not an abuse of discretion.

Finally, father suggests that modification was in the minor's best interest because there was no guarantee the aunt would permit the minor to have continued contact with him. Dr. Roeder opined that the minor would not be greatly harmed if his relationship with father were terminated and that the relationship should not be maintained at the expense of the minor being adopted. Consequently, we reject this argument as well.


The juvenile court's orders denying father's request for modification and terminating father's parental rights and ordering a permanent plan of adoption are affirmed.

MURRAY, J. We concur:

BLEASE, Acting P. J.


Summaries of

In re V.F.

Dec 6, 2011
C067142 (Cal. Ct. App. Dec. 6, 2011)
Case details for

In re V.F.

Case Details

Full title:In re V.F. IV, a Person Coming Under the Juvenile Court Law. NEVADA COUNTY…


Date published: Dec 6, 2011


C067142 (Cal. Ct. App. Dec. 6, 2011)