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Filed 6/22/23 In re S.W. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re S.W., a Person Coming Under 

the Juvenile Court Law.

SAN FRANCISCO COUNTY 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

D.W., 

Defendant and Appellant.

A166403

 

(City and County of San Francisco

Super. Ct. No. JD213240)

This juvenile dependency proceeding concerns S.W. (the child), whose 

parents are D.W. (Father) and K.W. (Mother). Father appeals from an 

August 24, 2022, custody order and final judgment (one document), in which 

the court dismissed the dependency proceeding, granted Mother sole legal 

and physical custody, and denied Father visitation with the child.1

1 We deem Father’s notice of appeal from an August 23, 2022, order,

ordering full legal and physical custody to Mother and no visits to Father, to 

be a notice of appeal from the August 24, 2022, Judicial Council form custody 

order and final judgment (one document). (Cal. Rules of Court, rule 

8.100(a)(2) [notice of appeal should be liberally construed; it is sufficient if it 

identifies the judgment or order being appealed].) 
2

Father does not challenge the termination of dependency jurisdiction or 

the custody order in favor of Mother. His only contention on appeal is that

the court erred in denying visitation. Because we find no abuse of discretion 

in the court’s denial of visitation, we affirm. 

FACTS2

Background

Father and Mother are married and the parents of S.W., who was born 

in October 2021.

Mother used methamphetamines at times during the last three months

of her pregnancy. She reported that her drug use followed a series of 

traumatic events and was also triggered by Father’s involvement with 

another woman and Father’s arrest and incarceration on murder charges just 

weeks before the birth of the child. Mother reported that in 2019 she had 

been diagnosed as suffering from depression but did not take prescribed 

medication; after the child’s birth, Mother began taking prescribed 

medication which she found ameliorated her moods. Father reported that 

during Mother’s pregnancy, he was not living consistently with her and did 

not have stable employment. Father knew Mother was abusing drugs 

intermittently during the pregnancy and he submitted to an allegation that 

he had “made it easier for her to use drugs.” 

In October 2021, the San Francisco County Human Services Agency 

(the Agency) intervened when the child tested positive for drugs at birth. 

Mother and the child entered a residential drug treatment program. The 

Agency filed a petition under Welfare and Institutions Code3 section 300, 

2 We set forth only those facts necessary to resolve this appeal.

3 All statutory references are to the Welfare and Institutions Code.
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amended twice, seeking to declare the child a dependent of the court for the 

purpose of initiating a family maintenance plan for Mother.

At hearings held in November 2021, the court appointed counsel for 

Father, who was still incarcerated. Father’s status was elevated to presumed 

father as he and Mother were married at the time of the child’s birth. 

Combined Jurisdiction and Disposition Hearing

On January 26, 2022, the juvenile court held a combined jurisdiction 

and disposition hearing. Before the hearing, the Agency filed a report and 

several addenda recommending that S.W. be declared a dependent, that 

Mother be offered family maintenance services, and that no services be 

offered to Father.

The Agency reports reflected that Mother promptly engaged in mental 

health and substance abuse services after Agency intervention in October 

2021. By January 14, 2022, she had completed a residential drug treatment 

program and both she and the child were doing very well. Father remained

incarcerated, his release date was unknown, and the reports reviewed his

extensive criminal history. The Agency did not recommend services for 

Father given his incarcerated status and given that the detention facility 

where Father was incarcerated offered only video visits due to the COVID-19 

pandemic. Mother did not want to participate in or supervise the child’s

visits with Father.

Based on the parents’ submissions, the court found true the second 

amended petition’s allegations regarding Mother’s substance abuse and 

mental health issues and Father’s failure to protect the child from Mother’s 

drug use while she was pregnant. The court found the child to be a person 

described in section 300, placed the child in Mother’s custody, and ordered 

the Agency to provide family maintenance services for Mother. The court did 
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not grant family maintenance or reunification services for Father but did 

grant supervised visits a minimum of once a month, “if possible.” 

Contested Six-Month Status Review Hearing

The Agency filed a report for the status review hearing originally 

scheduled for July 19, 2022 (“July 19 report”) and an addendum report for the 

continued hearing scheduled for August 23, 2022 (“August 23 report”). In 

each report, the Agency recommended the court dismiss the dependency and 

grant Mother sole legal and physical custody of the child with no visitation to

Father.

As reflected in the reports, Mother had consistently engaged in 

outpatient substance abuse treatment services, participated in collaborative 

family treatment court, and was near completion of a parenting class. The 

child was physically and emotionally on target. Mother planned to divorce

Father. 

Father remained incarcerated. The July 19 report stated that while 

Father had been granted supervised visits, Mother did not allow the child to 

participate because she felt it was not in the child’s best interest given 

Father’s complete absence from the child’s life (including her pregnancy), and 

due to the nature of his criminal charges. The August 23 report noted that 

virtual visitation between the child and Father had not been possible. The 

social worker had asked Mother if the child could attend virtual visits 

supervised by the Agency, but Mother was not willing, again due to Father’s 

lack of involvement with her pregnancy or the child and the severity of the 

criminal charges against Father. 

At the status review hearing, the court considered the Agency reports, 

heard the testimony of Mother and the Agency social worker, and allowed a 

statement made by Father. The court also considered counsels’ arguments.
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The Agency social worker testified she held bachelor’s and master’s 

degrees in social work and had interned with the Los Angeles Department of 

Children and Family Services and the San Mateo Children and Family 

Services in the emergency response department. She was currently a 

protective services worker with the Agency, assisting families to maintain 

safe homes, reunification, and permanent placements, and working with 

newborns to teenagers.

The Agency social worker had been assigned to this case for 

approximately six months and was aware the court had ordered virtual visits. 

She had explained to Mother that the court-ordered visits were mandatory,

but Mother had refused to allow the child to participate even if Agency staff 

supervised the visits. Mother did not want any visitation as Father had no

relationship with the child and was not present when she needed him during 

the pregnancy or birth. Mother was also concerned about the severity of the 

charges pending against Father. 

The Agency social worker opined that it would not be in the child’s best 

interest to have virtual visits with Father as the child never had a 

relationship with Father and had no familiarity with his face or voice. She

explained that a young child is typically unable to focus on a screen, has

difficulty engaging on a virtual call, and often just does their own thing 

during the virtual visit. She did not believe that a virtual visit either once a 

month or once every two weeks would increase the child’s awareness of who 

Father was, especially given the child’s young age. 

Mother testified that she last saw Father approximately one month 

before he was incarcerated on criminal charges in 2021, at which time she 

was pregnant with the child. Mother was aware of the court-ordered visits 

but did not think it was in the child’s best interest to participate in those 
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visits. She stated the child was very connected to her, only wanted to be with 

her, and cried even when being held by his older half-siblings.

Father told the court he wanted a relationship with his son. Father’s 

counsel informed the court that Father did not contest dismissal of the

dependency, but requested the court continue the earlier order allowing for

once monthly supervised visits with the child. 

The court determined that dismissal of the case was appropriate and

awarded Mother sole legal and physical custody of the child. The court 

denied Father’s request for visitation, finding that based on the totality of the 

circumstances it was not in the child’s best interest at that time for the child 

to engage in virtual visits. The court commented that since Mother had not 

facilitated the previously court-ordered visits, Father would not be penalized 

for failing to take advantage of those visits. Nonetheless the court was

tasked with making its decision based on the extant circumstances, which 

were that Father had been incarcerated since before the child had been born

and hence had never seen the child. When counsel asked if the court was 

making a detriment finding, the court commented that it was not denying 

visitation based on detriment but rather on the child’s best interest. 

In its August 24, 2022, Judicial Council form custody order and final 

judgment (one document), the court included an attachment that reads: “The 

Court finds and orders: [¶] Based upon the totality of the circumstances at 

this point in time, the Court is not ordering visits for the father, [D.W.] If 

there is a change in circumstances, [the father] can bring the matter to the 

Court and ask for a change in the current order. The father is currently 

incarcerated pending charges including violation of Penal Code section 187, 

murder. [¶] The Court finds it is not in the minor’s best interest to order that 

he be put in front of a screen for monthly virtual visits with his father.” 
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Father’s timely appeal ensued. 

DISCUSSION

The applicable law is well settled. When terminating its jurisdiction in 

a dependency at a hearing held pursuant to section 364, the juvenile court

has broad discretion to issue exit orders concerning custody and visitation

(§ 362.4, subd. (a)). Once issued, the exit orders are transferred to the family 

court and remain in effect until they are modified or terminated by the family 

court. (Id., subds. (b), (c).) Indeed, the custody order and final judgment in 

this case has been filed with a family law case number in the San Francisco 

Superior Court. 

On appeal, we review an exit order for an abuse of discretion. (In re 

J.M. (2023) 89 Cal.App.5th 95, 113.) “We will not disturb the juvenile court's 

decision ‘ “ ‘unless the . . . court has exceeded the limits of legal discretion by 

making an arbitrary, capricious, or patently absurd determination.’ ” ’ ” 

(Ibid.) Here, we cannot conclude the court abused its discretion in denying 

Father visitation. 

As a preliminary matter, we find unavailing Father’s reliance on 

statutory and case law applicable to custody and visitation orders made in 

the context of proceedings between parents under the Family Code. “Because 

juvenile dependency proceedings arise when children are subject to or at risk 

of abuse or neglect, ‘[t]he presumption of parental fitness that underlies 

custody law in the family court just does not apply. . . . Rather the juvenile 

court, which has been intimately involved in the protection of the child, is 

best situated to make custody determinations based on the best interests of 

the child without any preferences or presumptions.’ ” (In re J.M., supra, 89 

Cal.App.5th at p. 112.)
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In making exit orders, the juvenile court’s primary focus must be on the 

child’s best interests. (In re J.M., supra, 89 Cal.App.5th at p. 113, and the 

cases cited therein, including In re T.S. (2020) 52 Cal.App.5th 503, 513 [when 

the juvenile court makes custody and visitation orders under § 362.4, “ ‘the 

court’s focus and primary consideration must always be the best interests of 

the child’ ”].) The record before us demonstrates the court focused on the best 

interest of the child in deciding whether to order video visits – the only visits 

available due to Father’s incarceration – and considered the totality of the 

circumstances. Before the court was evidence the child was thriving, Mother 

had maintained her sobriety and was committed to providing high quality 

care, and Father had no prior connection with the child. And the Agency 

social worker explained the extremely limited, if any, utility of virtual visits 

given the child’s very young age coupled with no prior contact. In 

determining that the 10-month-old child’s best interest would not be served 

by placing him in front of a video screen for a virtual visit with an unknown 

person, the juvenile court “was entitled to find the social worker credible and 

to give [great] weight to her assessments and testimony.” (In re Casey D. 

(1999) 70 Cal.App.4th 38, 53, disapproved on another point in In re Caden C.

(2021) 11 Cal.5th 614, 636, fn. 5; see In re Liam L. (2015) 240 Cal.App.4th 

1068, 1089 [“[t]he juvenile court could reasonably agree” with the social 

worker’s recommended placement after reviewing all the evidence]; In re Cole 

C. (2009) 174 Cal.App.4th 900, 918 [the juvenile court “was entitled to find 

the social worker’s opinion[s] credible and give great weight to her 

assessment”].) As an appellate court, it is not our role to reweigh the 

evidence and substitute our judgment for that of the juvenile court. (In re 

Casey D., supra, at pp. 52–53). 
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We see no merit to Father’s assertion that the court had to find

visitation detrimental to the child as a prerequisite to issuing its exit order 

under section 362.4. Father points to no authority requiring such a finding of 

detriment, and indeed, the law imposes no such requirement. (In re J.M., 

supra, 89 App.Cal.5th at p. 113 [in making exit orders under § 362.4 the 

juvenile court is not required to make a finding of detriment “under any

circumstances”].)4 And, while the court stated it was not making a finding of 

detriment, it clearly considered potential benefits and detriments to the child 

by virtue of its ruling regarding the best interest of the child and acted well 

within its discretionary authority in denying visitation. It also considered 

Mother’s failure to allow visitation, and her rationale for doing so.

We are not persuaded by Father’s arguments that the court should 

have issued an exit order continuing the existing seven-month-old January 

2022 visitation order to correct Mother’s “conception” that she could ignore a 

court order or avoid a “de facto absolute delegation” to Mother to determine 

the terms of future visitation. The court had the authority to consider 

evidence regarding whether to continue or modify the existing visitation

order. (See In re T.S., supra, 52 Cal.App.5th at p. 514 [during § 364 hearing 

the juvenile court is “empowered to change prior orders” of custody and 

visitation]; In re Roger S. (1992) 4 Cal.App.4th 25, 30 [during § 364 hearing

the juvenile court erred in finding that it was compelled to adopt an existing 

seven-month-old visitation order without change and in refusing to consider a 

parent’s proffered evidence for a change in the order].) Having considered the 

4 Accordingly, we find unavailing Father’s reliance on cases decided 

under completely different sections of the Welfare and Institutions Code, and 

which largely focus on visitation in the context of reunification services not at 

issue here. 
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evidence presented, and “[b]ased upon the totality of the circumstances,” the 

court exercised its discretion and determined the visitation order should not 

be continued after termination of the dependency. 

In addition, and as made clear by the court at the hearing, the exit 

order “contemplates that all persons subject thereto would remain under the 

control of the family court and that any party who wished to contest the . . . 

continued propriety of the order based on changed circumstances . . . would 

be able to raise that issue in the family court.” (In re Chantal S. (1996) 13 

Cal.4th 196, 214 [exit orders concerning father’s visitation, which left open 

issues that remained within the purview of the family court, did not 

constitute an unlawful delegation of the juvenile court’s authority].)5 The

exit order places no limitation on Father’s ability to seek future visits by 

petitioning for that relief in the family court and, contrary to Father’s 

contention, in no way limits him to seeking future visits only if he is no 

longer incarcerated or can prove his innocence. Nothing in the exit order 

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If we were to find the juvenile court erred in its exit order, we would be 

required to reverse and remand the matter to the family court, and not the 

juvenile court as Father requests. “While remand to a court different from 

the one which issued the judgment appealed from is, to say the least, 

unusual, such a result is necessarily inherent in section 362.4, which 

expressly contemplates future proceedings in the family court. By providing 

that the exit order be filed [in the family court] . . ., the Legislature has 

demonstrated an intent that any future court proceedings . . . be in the family 

court. When the merits of a section 362.4 exit order are at issue (as distinct 

from the validity of termination itself), the time lag inherent in the appellate 

process itself means that any remand must necessarily be directed to the 

family court. Who else is there when juvenile court jurisdiction has been 

correctly terminated?” (In re John W. (1996) 41 Cal.App.4th 961, 976-977.) 

Like any other parent and as standard when seeking a visitation 

modification, on remand Father would be required to show (1) a substantial 

change of circumstances since the exit order was made, and (2) that the 

proposed modification would be in the child’s best interest. (§ 302, subd. (d).) 
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would preclude Father from requesting future visits, for example, based on 

the child being of a sufficient age to meaningfully participate in virtual visits 

or the availability of in-person visits. Of course, our decision should not be 

read as expressing any opinion as to the types of changed circumstances that 

would support a request for future visitation. 

In sum, for the reasons stated, we uphold the exit order denying 

visitation.

DISPOSITION

The juvenile court’s August 24, 2022, Judicial Council form custody 

order and final judgment (one document) is affirmed.
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_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Rodríguez, J.

A166403/In re S.W. – San Francisco County Human Services Agency v. D.W.