Filed 7/14/14 In re M.N. CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re M.N. et al ., Persons Coming Under the Juvenile Cou rt Law. B251908 c/w B253144

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.

ARACELY A. , Defendant and Appellant

. (Los Angeles County Super. Ct. No. CK78253)

APPEAL from orders of the Superior Court of Los Angeles County. Jacqueline
Lewis
, Judge

. Affirmed

.

Patti L . Dikes, under appointment by the Court of Appeal, for Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Kimberly Roura
, Deputy Co unty Counsel
, for Respondent.

__________________________2

This is a consolidated appeal from two orders in dependency proceedings involving two

- year

- old M.N. and his i nfant brother, C.N. (the children). In case
N o. B251908, Aracely A. (mother) appeals fr om a July 11, 2013 order , which she contends improperly de l e gated visitation rights to the prospective adoptive mother . In

case N o. B253144, mother contends the October 10, 2013 order terminating her parental rights should be reversed because the limitati ons on her visitation rights denied her the ability to demonstrate the beneficial relationship exception to the preference for adoption
and termination of parental rights. We affirm both orders.

FACTUAL AND PROCEDURAL BACKGROUND
When mother gave birth to M.N. in 2011, M.N. ’ s four half

- siblings were already
in the custody of the Department of Children and Family Services (DCFS) and placed
with maternal aunt Elizabeth V

. 1 Like his two youngest half

- siblings
, M.N. tested positive for amphetamines and meth amphetamines at birth. M.N. was detained and eventually placed with his paternal grandparents. Following the detention hearing on September 26, 2011, mother and father were given thrice weekly monitored visits of two
hours each. Meanwhile, a s sustained on November 8, 2011
, a petition alleged that M.N. was a person described by Welfare and Institutions Code section 300, subdivision (b)
because mother used illicit drugs while pregnant with M.N. (paragraph b

- 1) and mother
ha d an unresolved history of illici t drug use which had resulted in the four older siblings

1 The four older children were P.A., E.S., M.S. and E. S. (referred to collectively as the older children). After M.S. t ested positive for methamphetamines at her birth in 2008,

m other entered into a Voluntary Family Maintenance plan. When E.S. was born a year later with a positive toxicology for amphetamines and methamphetamines the four older children were detained and eventually declared dependent children as a result of mother ’ s illicit drug use, among other things. In September 2011, m other ’ s reunification services were terminated as to the older siblings. Dependency proceedings for the older siblings were still ongoing when M.N. was born.3

receiving permanent placement services (paragraph b

- 2). 2 Father was given reunification
services. Because mother had fail ed to reunify with M.N. ’ s older siblings , mother was given no reunification services

. ( See § 361.5, subd. (b)(10) [failure to reunify with siblings]
, & (13) [history of chronic drug use]

. ) T he minute order included a visitation order for father ( the same monitored visits he received following the detention hearing ),
but not for mother. (The record does not include a copy of the Reporter’s Transcript
from the November 8, 2011 hearing.)
Mother was incarcerated f or about a week in early March 2012. By early May 2012, she had missed 10 scheduled drug tests. At the status review h earing on May 8, 2012, t he court set a section 366.26 permanent placement plan hearing (.26 hearing) for September 5, 2012. Although the jurisdiction order did not include a visitation order for mother, mother accompanied father to visits which were monit ored by paternal grandparents at their home. But after mother threatened Elizabeth V. and the father of one of the older siblings, and the paternal grandparents told the social worker they were

too intimidated by the parents to enforce the court

- ordered t ime limitations on the visits
, DCFS suspend ed those visits until a new location and monitor could be arranged

. By the continued .26 hearing on September 5, 2012
, no alternate visitation arrangements had been made

. The juvenile court ordered DCFS to creat e a visitation
schedule within 72 hours

. The minute order for the hearing states: “ Monitored visits for MOTHER/[FATHER] to be monitored by DCFS approved monitor in DCFS OFFICES. ” The .26 hearing was continued to January 4 , 2013. Later that same day (Se ptember 5, 2012), mother gave birth to C.N. , who was
detained after he tested positive for amphetamines

. As eventually sustained, the
section 300 petition as to C.N. alleged he tested positive for amphetamine at birth

2 The petition also alleged that M.N.’s father had a history of illicit drug use and currentl y used illicit drugs (paragraph b

- 3). M.N.’s f ather is not a party to this appeal.
All future undesignated statutory references are to the Welfare and Institutions Code.4

(paragraph b

- 1) and mother ’ s history and current use of illicit drug s had resulted in
C.N. ’ s four older siblings receiving permanent placement services (paragraphs b

- 2 and j

1). Following the detention hearing, m other was given monitored visits with C.N. , who
had been placed with a foster fa mily

. Mother was soon thereafter incarcerated

. On November 8, 201 2 , Elizabeth V. was appointed the older siblings ’ legal guardian and dependency jurisdiction was terminated as to th em ( parental rights were not terminated). M.N. ’ s .26 hearing and C.N. ’ s adjudication hearing w ere continued to
December 17, 2012. A week before that hearing, both M.N. and C.N. were placed with
maternal aunt , Maria J. , who assured DCFS that she could both protect the children from
the parents and still facilitate visitation. In addition, Maria J. and Elizabeth V. had a close relationship which would enhance sibling visits.
C.N. ’ s jurisdiction and M.N. ’ s .26 hearing s were continued to January 4, 2013. On that date, mother was still incarcerated. M.N. and C.N. were doing we ll in the ir placement with Maria J. The juvenile court sustained the petition as to C.N. , ordered no
reunification services and continued the matter to May 2, 2013 for a .26 hearing as to both M.N. and C.N. (See § 361.5 , subd. (f) [if reunification servi ces are not ordered pursuant to subdivision (b) , court shall determine whether .26 hearing shall be set].) Notwithstanding the denial of reunification services, m other was given monitored visits
with C.N. and there was no change to the prior order giving mother monitored visits with
M.N.
Mother was still incarcerated b y the time of the .26 hearing on May 2, 2013 and
she had not visit ed the children in many months. The children were doing well with
Maria J. , who wanted to adopt them both

. DCFS recommended adoption as the permanent plan. At the hearing, t he re was the following colloquy about mother ’ s visitation : “ [MOTHER ’ S COUNSEL]:

. . . So I would ask that, i f [Maria J.] is willing to bring the children to the facility for the [visits], mother is eligi ble and participating and can receive visits at her place of incarceration. [¶] [THE CHILDREN ’ S COUNSEL]: And I would just ask that that be contingent on maternal aunt ’ s

– on maternal aunt [Maria J .]. [¶] THE COURT: If the aunt wishes to take the chi ldren to see the mother5

[at the place of incarceration], that ’ s fine with the court

. ” Mother neither object ed that
the court had improperly delegated to Maria J. the power to decide whether any visitation

wo uld occur , nor did mother seek appellate review of the M ay 2, 2013 order on that or any other grounds. The .26 hearing was continued to July 11 , 2013. Over the next several months, mother filed two section 388 petitions seeking reunification services

. Both petitions were denied. 3

A. The July 11 Order
According to the report for the continued

. 26 hearing on July 11, 2013 , the
children continued to do well with Maria J. and a completed adoptive home study was anticipated. There were no witnesses at the hearing. The juvenile court identified adoption by Maria J. as the permanent placement plan for both boys , appointed Maria J.

as the children ’ s educational representative , and continued t he matter to October 10, 2013 for a contested .26 hearing

. T here was another colloquy regarding visitation :

“ [MOTHER ’ S COUNSEL]: Your Honor, [mother] is requesting visits through the A.B.C. program. I know we ’ ve discussed that at a previous date, and the court made an order that if [Maria J.] wanted to bring the children through the A.B.C. program, that she
was able to for visits at [mother ’ s] place of incarceration. [¶] [Mother] is informing me
that she ’ ll be discontinued from the program if the children are not brought in for any

3 The first petition , filed on May 29, 2013, sought placement of M.N. and C.N. wit h mother or , alternatively, that she be given reunification services. Among the changes mother listed in support of the petition w ere her completion of several programs where she was incarcerated, as well as acceptance into a program that would allow the children to visit her there. Following a hearing that same day, the juvenile court denied the petition.

Mother filed the second section 388 petition on September 16, 2013. It sought termination of the adoption process so that mother could regain custo dy of the children. According to the petition, mother expected to be released from jail on November 21, 2013. The petition was summarily denied for the reasons that the petition did not state new evidence or a change of circumstances and , further, mother was incarcerated and unable to have custody of the children.6

visits, and she ’ s requesting visits at this time. [¶] THE COURT: Did she discuss tha t with her sister
, [Maria J.]? [¶] [MOTHER ’ S COUNSEL]: [Mother] wrote to her but has not received a response. [¶] THE COURT: I am not

– If the aunt is not willing to do it,
I ’ m not ordering it at this point in this case. ” Mother did not object that the juvenile court had improperly delegated to Maria J. power over mother ’ s visitation. The minute order from the July 11, 2013 hearing does not specifically refer to visitation

. Mother filed a timely notice of appeal from the July 11 order. 4

B. The Octob er 10 Order
The adoptive home study for Maria J. was approved in late July. There were no
witnesses at the .26 hearing on October 20, 2013 . Mother objected to termination of parental rights, but offered no evidence or argument in support of her position

. In particular, mother did not argue th e application of any exception to the preference for adoption. Finding no such exception, t he juvenile court terminated parental rights as to
M.N. and C.N. and designated Maria J. the prospective adoptive parent. Mother filed a timely notice of appeal.

DISCUSSION

A. The July 11 Order Did Not Improperly Delegate Visitation Decision s t o Maria J.

Mother contends that den ial of her request that the July 11 order include a provision requiring Maria J. to bring the chil dren to mother ’ s place of incarceration for
visits constitutes an improper delegat ion to Maria J. of the court ’ s power to decide whether any visitation would occur

. 5 We disagree.

4 The notice was filed as a Notice of Intent to File a Writ, but processed as a Notice of Appeal.

5 We find no merit in DCFS ’s conten tion that mother forfeited this issue by couching her r equest for a visitation order in language that seemed to accept that the prospective adoptive mother had discretion to bring or not bring the children to the detention center . If, as mother argues, visitation was mandatory under sections 362.1,7

During the reunification period, visitation is mandatory absent exceptional circumstances and the court may not delegate its power to decide whether any visitation shall occur. (§ 362.1, subd

. (a)(1)(A) ; In re S.H. (2003) 111 Cal.App.4th 310, 317

. )
Even an incarcerated parent may not be denied visitation during the reunification period except upon proof of clear and convincing evidence that it would be detrimental to the child. ( In re Dylan T. (1998) 65 Cal.App.4th 765, 773.) A fter re un ification services have been terminated, visitation is still mandatory absent a finding of de triment. (§ 366.22,
subd. (a) [ “ The court shall continue to permit the parent or legal guardian to visit the
child unless it finds that visitation would be detrimental to the child. ” ]; In re D.B. (2013)
217 Cal.App.4th 1080, 109 4

- 1095.) Although it may n ot delegate whether any visitation will occur, the court may delegate “ discretion to determine the time, place and manner of
visits. ” ( In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009 [order for “ reasonable
visitation ” while father was incarcerated w as not an improper delegation of the power to grant or deny visitation ].) “ A visitation order which fails to protect a parent ’ s right to visit is illusory. If .

. . the court grants visitation, ‘ it must also ensure that at least some
visitation at a mini mum level determined by the court itself, will in fact occur. ’ [Citation.] ” ( In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 ( Hunter S. ) .) By contrast, where no reunification services have been ordered at all , visitation is discretionary , not mandatory

. Where reunification services are denied, visitation is governed b y subdivision (f) of section 361.5 , which provides: “ The court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to
the child. ” (I talics added.) In In re J.N. (2006) 138 Cal.App.4th 450, 458, the court explained that the permissive language in section 361.5 , subdivision (f) reflects the reality
that “ visitation is not integral to the overall plan when the parent is not participating in
reunification services. ” The child i n J.N. was 20 months old when the mother was incarcerated for voluntary manslaughter after the child ’ s sibling died while in the care of the mother and her boyfriend. T he mother received no reunification services a nd the

subdivisio n (a)(1)(A) or section 366.22, subdivision (a), trial counsel ’ s inartful request would not absolve the juvenile court of its duty to order visitation.8

child was placed with the father. When the child was 10 years old, he was declared a dependent child as a result of the father ’ s failure to protect the child from abuse by the maternal grandparents with whom the child was living. Although mother d id not receive any reunification services, she requested telephone visitation. The dispositional order did not include a provision for telephone contact with the mother. The appellate court rejected the mother ’ s challenge to the order, explaining : “ [T] h e court may deny visitation to an incarcerated parent who has been denied reunification services, even in the absence of any showing that continued visitation would be detrimental to the child. ” ( Id . at
p. 460.)
We review visitation orders under section 3 61.5 , subdivision (f) for abuse of discretion. ( In re J.N., supra , 138 Cal.App.4th at p. 459.) Under that standard, we apply a very high degree of deference to the trial court ’ s decision. ( Ibid .) Further, the parent must demonstrate prejudice. ( In re Chantal S. (1996) 13 Cal.4th 196, 214.) In
Chantal S. , dependency jurisdiction was based on the mother ’ s inability to protect the child from the violent father. After the father was incarcerated, the juvenile court terminated dependency jurisdiction with a family law order that required father ’ s visitation to begin only after the father ’ s therapist determined that the father had made

“ satisfactory progress for a time ” and that father ’ s visitation be “ facilitated ” by the
child ’ s therapist

. ( Id . at p. 213. ) Our Supreme Court rejected the father ’ s contention that the order constituted an improper delegation of the judicial authority over visitation to the therapists. E ven assuming for the sake of argument that the order delegated too much authority to fath er ’ s therapists, the court found the father was not prejudiced because the fact that the juvenile court could have, but did not deny father visitation altogether

“ amounts to a windfall to father, not a violation of his rights. ” ( Id . at p. 214.) Here, the July 11 order did not improper ly delegat e to Maria J. the power to decide
whether any visitation would occur . Rather, the juvenile court ’ s statement, “ I ’ m not ordering it, ” in response to mother ’ s request that the children be brought to the detention

cent er for visits, is a clear exercise of the juvenile court ’ s discretion under section 361.5, subdivision (f) to not order visitation for mother , who had been denied reunification9

services

. 6 Informing Maria J. that she could bring the children to visit mothe r at the detention center if she felt it was appropriate did not transform the exercise of discretion

to deny visitation into an improper delegation of power over visitation. T he juvenile
court did not preclude Maria J. from fostering a continuing relatio nship between mother
and the children ; it simply declined to order visitation.
That mother had previously been given visitation even though she was denied
reunification services does not compel a contrary result. The section 361.5 , subdivision (f) discr etion to not order visitation is triggered by the denial of reunification services for any of the reasons set forth in subdivision (b) of that section. There is nothing in the

statute or case law to suggest that w here, as here, the juvenile court exercise s its
discretion under section 361.5 , subdivision (f) to order visitation for a parent who has
been denied reunification services
, the court does not retain the discretion to change that order. That is what happened in this case at the hearing on July 11, 2013. Although mother had been given monitored visitation after she was denied reunification under
section 361.5, subdivision (b), by the time of the hearing on July 11 , mother was incarcerated, had not seen the children for many months, and adoption by Maria J. was the recommended placement plan. At this stage of the proceedings, the juvenile court
acted well within its statutory discretion to deny continued visitation for mother.
Under Chantal S. , supra  ̧ even assuming for the sake of argument that the July 11 order delegated too much authority to Maria J., mother was not prejudiced since the court could have denied visitation altogether and giving Maria J. discretion to bring the
children to the detention center was a windfall for mother.

B. The Beneficia l Relationship Exception t o t he Adoption Preference

Mother contends the October 3 order terminating parental rights should be
reversed. She does not challenge the sufficiency of the evidence to support the order

. Rather, mother argues that her ability to establish the beneficial relationship except ion to

6 Although raised by DCFS in its Respondent ’ s Brief in case N o. B251908, mother does not address appli cation of section 361.5, subdivision (f) in her Reply Brief.10

the preference for adoption (§ 366.26, subd

. (c)(1)(B)(i )) was “ unduly prejudiced ” by the juvenile court ’ s failure to order visitation on July 11. We find no error. In order of preference, the juvenile court ’ s four choices a t the .26 hearing are:

“ (1) terminate parental rights and order that the child be placed for adoption (the choice the court made here); (2) identify adoption as the permanent placement goal and require efforts to locate an appropria te adoptive family; (3) appoint a legal guardian; or (4) order long

- term foster care. (§ 366.26, subd. (b).)

. . . ‘ Adoption is the Legislature ’ s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker. ’ [Citation.] ” ( In re Celine R. (2003) 31 Cal.4th 45, 53, citations omitted.) T he Legislature has recognized that adoption is not the appropriate plan in

every case. Relevant here is the exception to the preference for adoption when the chil d has a strong bond with the parent and severing that bond would be detrimental to the
child. (§ 366.26, subd. (c)(1)(B)(i).) This exception applies when t he court finds
termination of parental rights would be detrimental to the child because t he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i) ; see In re K.P. (2012)
203 Cal.App.4th 614, 621.) “ The ‘ benefit ’ prong of the exception requires th e parent to prove his or her relationship with the child ‘ promotes the well

- being of the child to such a degree as to outweigh the well

- being the child would gain in a permanent home with new, adoptive parents. ’ [Citations.] ” ( Id . at p. 621.) In Hunter S. , supra , the court recognized that a parent deprived of visitation will likely not be able to establish the beneficial relationship exception o r have any meaningful chance to avoid the termination of parental rights. ( Hunter , supra , 142 Cal.App.4th at p

. 1505.) Even though denying visitation pursuant to section 361.5 , subdivision (f) may hinder the parent from establishing a relationship with the child , by statute the court retains jurisdiction to deny
visitation. ( J.N., supra , 138 Cal.App.4th at p. 46 0.) Here, as we have already discussed, the July 11 order was a proper denial of
visitation under section 361.5, subdivision (f). As such, it did not itself “ unfairly11

prejudice ” mother ’ s ability to build a relationship with the children to satisfy the

exc eption.

DISPOSITION
The July 11 , 2013 order deny ing continued visitation to mother and the October 3 , 2013 order terminating parental rights and placing the children for adoption are affirmed.

RUBIN, ACTING P. J. WE CONCUR:

FLIER, J.

GRIMES, J.