1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 concern s S.W. ( the child ) , whose parents are D.W. ( F ather) and K.W. ( M other). Father appeals from a n August 24, 2022, custody order and final judgment (one document) , in which the court dismissed the dependency proceeding, granted M other sole legal and physical custody, and denied F ather visit ation with the child. 1

1 We deem F ather’s notice of appeal from an August 23, 2022, order , ordering full legal and physical custody to M other and no visits to F ather, 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 8.10 0(a)(2) [notice of appeal should be liberally construed ; it is sufficient if it identifies the judgme nt or order being appealed].)2

Fathe r does not challenge the termination of dependency jurisdiction or the custody order in favor of M other. 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.
F ACTS 2 Background
Father and M other 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 F ather’s involvement with
another woman and F ather’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 , M other began taking prescribed
medication which she found ameliorated her moods. Father reported that
d uring M other’ s pregnancy , he was not living consistently with her and did not have stable employment. F ather knew M other 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 Oct ober 202 1 , the San Francisco County Human Services Agency (the A gency) intervened when the child tested positive for drugs at birth.
Mother and the child entered a residential drug treatment program

. The
A gency filed a petition under Welfare and Institutions Code 3 s ection 300,

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

. 3 All statutory references are to the Welfare and Institutions Code.3

amended twice, seeking to declare the child a dependent of the court for the purpose of initiating a family maintenance plan for M other.
At hearings held in N ovember 2021 , the court appointed counsel for
F ather , who was still incarcerated

. F ather’s status was elevated to presumed
father as he and M other were married at the time of the child’s birth. Combined Jurisdiction and Disposition Hearing On January 26, 2022, the ju venile court held a combined jurisdiction and disposition hearing. Before the hearing, the A gency filed a report and
several addend a recommending that S.W. be declared a dependent , that
M other be offered family maintenance services , and that no services be
offered to F ather

. The A gency reports reflected that M other promptly engaged in mental
health and substance abuse services after Agency intervention in October
2021

. By January 1 4 , 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 A gency did not recommend services for
F ather given his incarcerated status and given that the detention facility
where F ather was incarcerated offered only video visits due to the COVID

- 19 pandemic. M other did not want to participate in or supervise the ch ild’s
visits with F ather.
Based on the parents’ submissions, the court found true the second amended petition’s all egations regarding M other’s substance abuse and
mental health issues and Father’s failure to protect the child from M other’s drug use while she was pregnant

. The court found the child to be a person described in section 300, placed the child in M other’s custody , and ordered
the A gency to provide family maintenance services for M other. The co urt did4

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 A gency 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 A gency r ecommend ed the court dismiss the dependency and grant M other sole legal and physical custody of the child with no visitation to
F ather

. As reflected in the reports, Mother h ad consistently engaged in outpatient substance abuse treatment services , participated in c ollaborative family treatment court , and was near completion of a parenting class. The child was physically and emotionally on target. M other planned to divorce
F ather.
Father remained incarcerated. The July 19 report stated that while
F ather 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 c riminal charges. The August 23 report note d that
virtual visitation between the child and F ather had not been possible

. The
social worker had asked M other if the child could attend virtual visits supervised by the Agency, but Mother was not willing, agai n 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 A gency report s , heard the testimony of M other and the A gency social worker , and allowed a
statement made by F ather

. The court also consider ed counsels’ arguments

.5

The A gency 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 A gency , assisting families to mainta in
safe ho mes , reunification, and permanent placement s, and working with newborns to teenagers

. The A gency 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 M other that the court

- ordered visits were mandatory , but M other had refused to allow the child to participate even if A gency staff supervised the visits. Mother did not want any visitation as F ather had no relationship with the child and was not present when she needed him during the pregnancy or birth

. M other was also concerned about the severity of the charges pending against F ather.
The Agency social worker opined that it would not be in the child’s b est interest to have virtual visit s with F ather as the child never had a relationship with F ather and had no familiarity with his face or voice

. She explained that a young child is typically un able to focus on a screen, ha s 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 wou ld increase the child’s awareness of who
F ather was, e specially g iven the child’s young age

. Mother testified that she last saw F ather 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 those6

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.
F ather told the co urt he wanted a relationship with his son. Father ’s
counsel informed the court that F ather did not contest dismiss al of the dependency, but requested the court continue the earlier order allowing for

once month ly supervised visi t s with the child

. The court determined that dismissal of the case was appropriate and
awarded M other sole legal and physical custody of the child. The court
denied F ather’s request for visit ation , 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 visit s

. The court commented that since M other had not facilitated the previously court

- ordered visits, F ather 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 F ather had been incarcerated since before the child had been born
and hence had never see n 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 judgmen t (one document) , the court include d 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 th e father, [D.W.] If there is a change in circumstances, [ the f ather] 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.”7

Father’s timely appeal ensued.
D ISCUSSION 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 th e 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, 11 3. ) “ 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 , 8 9 Cal.App.5th at p. 11 2. )8

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 foc used on the best
interest of the child in deciding whether to order video visits

– the only visits
available due to F ather’s incarceration

– and considered the totality of the
circumstance s

. Before the court was evidence the child was thriving, M other had maintained her sobriety and was committed to providing high quality care, and F ather 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 s creen for a virtual visit with an unknown

per son , 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 90 0, 918 [the juvenile court “was entitled to find the social worker’s opinion[s] credible and give great weight to her assessment”].) A s an appellate court, it is not our role to reweigh the evidence and substitute our judgment for that of the juvenile cou rt. ( In re Casey D ., supra , at p p

. 52

– 53 ).9

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 F ather’s argument s 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 d ifferent sections of the Welfare and Institutions Code, and which largely focus on visitation in the context of reunification services not at issue here.10

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, an d 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 F ather ’s ability to seek future visits by petitioning for that relief in the family court and, contrary to Father’s contention, in no way l imits him to seekin g future visits only if he is no longer incarcerated or can prove his innocence. Nothing in the exit order

5 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 F ather requests. “While remand to a court different from the one which issued the judgment appealed from is, to say the least, unusual, su ch 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 co urt 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 F ather 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).)11

would preclude F ather 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 futu re visitation. In sum, for the reasons stated, we uphold the exit order denying
visitation.

D ISPOSITION The juvenile court’s August 24, 2022, Judicial Council form custody order and final judgment (one document) is a ffirmed.12 _________________________ Petrou, J.

WE CONCUR:

_________________________ Tucher, P.J.

_________________________ Rodr í guez, J.

A166403/ In re S.W.

– San Francisco County Human Services Agency v. D.W.