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Filed 6/29/15 In re A.W. CA1/1

Received for posting 7/2/15

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

In re A.W. et al., Persons Coming Under 

the Juvenile Court Law.

MENDOCINO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY, 

CHILDREN AND FAMILY SYSTEM OF 

CARE,

Plaintiff and Respondent,

v.

CLARENCE W.,

Defendant and Appellant.

 A143221

 (Mendocino County

 Super. Ct. Nos. SCUK-JVSQ-1415763, 

SCUK-JVSQ-1415764, SCUK-JVSQ1417027)

Appellant Clarence W. (father) and Nicole S. (mother) have long been involved in 

juvenile dependency proceedings under Welfare and Institutions Code section 300.1 

Most recently, the juvenile court denied father reunification services because of his

history of substance abuse and because reunification services for him had previously been 

terminated. In this appeal, father does not challenge that decision but instead challenges 

the court’s decision to deny him visitation with his children while he is in prison. We 

affirm.

 

1 All statutory references are to the Welfare and Institutions Code unless otherwise 

specified. Mother does not challenge the juvenile court’s disposition order and is not a 

party to this appeal.
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I.

FACTUAL AND PROCEDURAL

BACKGROUND

Respondent Mendocino County Health and Human Services Agency, Children and 

Family System of Care (Agency) has been involved with this family since at least August 

2009, when it filed a dependency petition relating to mother’s and father’s two older 

children and an older child of mother who is unrelated to father (and who is not the 

subject of this appeal). The juvenile court sustained allegations that the children were at 

substantial risk of harm due to domestic violence between father and mother, which 

included incidents in which father was arrested and charged with abuse; that father and 

mother both violated a stay-away restraining order imposed as a condition of placing the 

children with mother after the dependency petition was first filed; and that father had a 

history of substance abuse, evidenced by several alcohol-related arrests, hindering his 

ability to protect and parent his children. The children were placed with mother, and 

services were ordered for father.

Shortly thereafter, the minors were detained when the Agency filed a supplemental 

petition alleging that father was living with mother in violation of the court’s stay-away 

order. The court sustained the supplemental allegations, but it ordered the minors be 

returned to mother’s custody. It also ordered father to receive family-reunification 

services and be permitted to have weekly, supervised visits with his children lasting at 

least one hour.

Father made progress on his case plan, and in September 2010 the juvenile court 

ordered that he regain physical custody of his children, who remained dependents of the 

court. But, less than a month later, the Agency filed a supplemental petition alleging 

father had tested positive for alcohol, failed to show up for a scheduled drug test, and 

failed to attend a group meeting as part of his substance-abuse program. Father first 

voluntarily left the family home under an agreement with the Agency. At a jurisdiction 

hearing in November 2010, the juvenile court found the supplemental allegations true,

but it permitted father to return to the family home.
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By the time the disposition hearing took place the following month, however, 

mother and her children had moved out of the family home in order to keep the children 

safe, and the Agency reported that father had not complied with the requirements of a 

family dependency drug court. Father also was not participating in treatment for 

domestic violence and anger management. At the disposition hearing, the juvenile court 

found that father’s progress in his case plan had been minimal and that he had “a history 

of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior courtordered treatment for this problem during a three-year period immediately prior to the 

filing of the petition.” (§ 361.5, subd. (b)(13).) The court terminated services for father 

and terminated him from the drug court. It also ordered, however, that father be 

permitted supervised visits with his two children a minimum of every other week, 

because father was “important to his children and I don’t want to break that tie.” The 

children remained placed with mother, who was to continue receiving familymaintenance services.

The juvenile court dismissed dependency jurisdiction in April 2011, finding that 

continued court supervision was unnecessary because mother was doing well with the 

children. Mother was granted legal and physical custody, and father was granted 

visitation with his two children a minimum of once a month. Father was ordered to be 

clean and sober at the time of the visits.

Mother and father had a third child in November 2011. In the ensuing three years, 

father was arrested at least six times, mostly on charges related to domestic violence 

against mother: three times in 2012, once in 2013, and twice in 2014. He received two 

separate 90-day jail sentences related to spousal abuse.

In June 2014, all three of mother’s and father’s children, as well as mother’s older 

child with a different father, were the subject of a new dependency petition. It is a

visitation order entered in proceedings related to this petition that gives rise to the current 

appeal. The petition alleged that mother had a current drug problem and had driven her 

children to an Agency office while under the influence of a controlled substance. Mother 

was alleged to be homeless, and the children were reported to be dirty, disheveled, and 
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hungry. At this time, father was in a secure residential drug-treatment program that was 

ordered as a term of probation. The children were detained and placed in a protective 

foster-care home that was connected to the Indian tribes of which the children were either 

registered or potential members.

During the Agency’s investigation, the social worker received reports that the 

children had witnessed domestic violence between mother and father, that father had 

yelled at the children when he was drinking, and that father slapped the backs of his three 

children’s heads. The Agency also learned that father had been expelled from his 

substance-abuse treatment program a month before he was scheduled to complete it. As 

of the date the July 2014 jurisdiction report was prepared, father had not met with the 

social worker. The Agency planned to assess him for visitation “as soon as he steps 

forward and meets with the social worker.” The Agency was unable, however, to obtain 

father’s current mailing address.

Father was not present at the jurisdiction hearing held in July 2014, and his 

whereabouts were unknown. The juvenile court sustained allegations in the new petition

under section 300, subdivision (b) (failure to protect), including allegations that father 

had a chronic history of substance abuse and violent behaviors, that he also had an 

extensive history of criminal arrests and convictions for drug-related offenses and crimes 

of violence, and that the children had witnessed domestic violence between mother and 

father. The Agency scheduled meetings with father in advance of the disposition hearing, 

but he failed to show up.

At the beginning of the scheduled disposition hearing in August 2014, the social 

worker reported that father had been arrested that morning. The hearing was continued 

so that the Agency could prepare a disposition report. Father was present at the 

continued hearing. He was apparently incarcerated in the local jail at the time, and he 

reportedly was scheduled to be sentenced later that month to state prison and receive a 

two-year sentence for violating the terms of his probation, with an expected release date 

in summer 2015. Mother also was incarcerated in August 2014 after she was arrested 
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that month on charges of forging her name on a stolen check and trying to cash it at a 

Ukiah bank.

Following another continuance, the juvenile court held a contested disposition 

hearing. The director and case manager for Indian Child and Family Preservation 

Program (a consortium of four tribes) testified as an expert in dependency issues under 

the Indian Child Welfare Act of 1979 (25 U.S.C.A. § 1901 et seq.) (ICWA). She 

reported that the minors had been placed in a “very, very wonderful home” that was 

tribal-approved, and she expressed her opinion that it was in the children’s best interest to 

remain placed in that home.

The ICWA expert further testified that she had discussed the case at length with an 

ICWA advocate for the Sherwood Valley Band of Pomo Indians, where father is a 

registered member. It was their opinion that reunification services for father would not 

be beneficial to the children, based on the history of the case and the fact that father was 

“going off to prison.” As to whether father should have visitation with his children, the 

expert testified that “it would be hard for me to say that it was a good thing for the kids to 

have to go to prison,” and that “I just don’t think it’s a good idea myself.” When asked 

whether the children would be harmed if they were to visit with father, the expert 

testified: “Well, I’m not sure, you know, how they—they set up visitations in the prison

system. But I—I believe there is just a lot of, I believe, domestic violence between him 

and the mom while they had the children. So I don’t know, you know, if that would be a 

good idea for the kids to have to go through that and go down and visit and do all of those 

things. I don’t know how to supervise the visits there.”

After the expert testified, the social worker addressed the juvenile court about 

recent visitation arrangements for mother and father, stating that “the parents have both 

asked to have visitation while they were in jail, especially since [father] is leaving 

tomorrow, I believe, for prison. We did attempt to set that up. [The ICWA advocate] 

had volunteered to transport the children, but the children did not want to go and we 

didn’t see a point in forcing them to have to go to a jail. So that was the status at this 
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point. I just wanted them [mother and father] to know because I haven’t been able to talk 

to them about that since this occurred.”

Father’s counsel then made a formal request that father receive visitation while in 

prison, and she argued there was an insufficient showing that such visits would be 

detrimental to the children. The juvenile court and the parties’ attorneys then discussed 

the issue, without further sworn testimony. The minors’ counsel represented that taking 

the minors to the local jail had been a “challenge” and had “not worked well” because the 

visits had taken place through glass, a situation that is “very confusing for children to try 

to understand.” County counsel said he was informed by the social worker that father 

was “going to be possibly placed about three and a half hours from Ukiah. And due to 

the distance—three hours. And due to the distance and the age of the children [then six, 

five, and two], we believe visitation would be detrimental because he would be in 

prison.” Father’s counsel disagreed, arguing that “the children having to sit in a car for 

three hours and visit their father through glass, I’m not sure what the detriment would be 

other than them being uncomfortable. Because it’s a prison setting, but certainly they 

wouldn’t be at risk of physical harm or emotional harm by doing something that’s just 

new and uncomfortable for them.” According to father, the children had previously 

visited him when he was incarcerated in Manteca, and they had been transported fourand-a-half hours for that visit. The social worker stated that it would not be reasonable to 

require the children to travel six hours in a single day to visit with father.

The juvenile court ordered that mother receive reunification services but that no 

services be offered to father because of the previous termination of reunification services 

and his chronic substance abuse. (§ 361.5, subd. (b)(10), (13).) Mother did not appeal, 

and father does not challenge the order denying him reunification services. As for the 

children’s visitation with father, the juvenile court concluded that it would be 

unreasonable to require the children to travel with a social worker or foster parent three 

hours each way to have a short visit with father, and it concluded that face-to-face visits 

with father while he was in state prison would be detrimental. The court did not, 

however, rule out all visitation. It ordered that father could write to the children (through 
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the social worker) as often as he wanted, and he would have monthly telephone calls with 

the children.

II.

DISCUSSION

As a general rule, a parent whose child has been adjudged a dependent minor shall 

receive court-ordered reunification services. (§ 361.5, subd. (a).) Such services need not 

be provided, however, when the juvenile court finds by clear and convincing evidence 

that certain statutory exceptions (or “bypass provisions”) apply. (Id., subd. (b).) Here, 

the juvenile court denied father reunification services based on two bypass provisions 

allowing reunification services to be denied when such services have been previously 

terminated (id., subd. (b)(10)) and when the parent has engaged in chronic substance 

abuse (id., subd. (b)(13)). When reunification services are bypassed, the court “may

continue to permit the parent to visit the child unless it finds that visitation would be 

detrimental to the child.” (Id., subd. (f), italics added.) Thus, when a juvenile court 

finds, as the court did here, that visits would be detrimental to the child, it must deny 

visitation. (Ibid.)

Father contends insufficient evidence supported the finding that it would be 

detrimental for the children to be forced to be driven three hours each way to visit father 

while he was incarcerated. He argues that this finding was mostly supported by 

statements made by the parties’ attorneys rather than by sworn testimony. We are not 

persuaded. Not only did father fail to object below on the grounds of lack of sworn 

testimony, but also sworn testimony about detriment was presented by the ICWA expert 

who testified that visitation was not a “good idea,” an understatement given the children’s 

young ages and the undisputed history of domestic violence they witnessed while in 

father’s care.

In any event, we would still sustain the juvenile court’s order even if we were to 

conclude that there was insufficient evidence of detriment. Father argues that “absent a 

showing of detriment” he had a “right” to visitation. He is mistaken. In light of the 

bypass of reunification services, the juvenile court retained discretion to deny visitation 
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regardless whether there was sufficient evidence of detriment. The word “may” in the 

last sentence of section 361.5, subdivision (f) is permissive, meaning the juvenile court 

has discretion to permit or deny visitation when reunification services are not ordered. 

(In re J.N. (2006) 138 Cal.App.4th 450, 458.) In other words, a right to visitation arises 

only when a juvenile court orders reunification services to incarcerated parents under 

section 361.5, subdivision (e), because visitation is an essential element of a reunification 

plan. (E.g., In re Dylan T. (1998) 65 Cal.App.4th 765, 768, 770-771, 774 [absent certain 

circumstances, visitation must be provided to incarcerated parent where reunification 

services are ordered unless visits would be detrimental to minor].) But where, as here, 

reunification services have been bypassed under section 361.5, subdivision (b)(10) 

and (13), the juvenile court retains discretion to deny visitation under section 361.5, 

subdivision (f), even in the absence of a finding of detriment, because “visitation is not 

integral to the overall plan when the parent is not participating in the reunification 

efforts.” (In re J.N., supra, 138 Cal.App.4th at pp. 458-459.)

We cannot conclude that the juvenile court abused its discretion in denying faceto-face visitation while father was incarcerated. Ordering the children to travel three 

hours each way to visit their father in state prison can rationally be considered to be 

detrimental. And the court did not deny all contact between father and the children. It 

permitted monthly phone calls and unlimited contact by mail during father’s 

incarceration. The court’s order warrants a “very high degree of deference,” and in our 

view it does not exceed the bounds of reason. (In re J.N., supra, 138 Cal.App.4th at 

p. 459.) “Because [father] failed to show the court erred in denying [him] visitation 

under the circumstances of this case, [his] attack fails.” (Id. at p. 460.)

III.

DISPOSITION

The juvenile court’s order is affirmed.
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_________________________

Humes, P.J.

We concur:

_________________________

Margulies, J.

_________________________

Dondero, J.