Filed 6/28/13 In re E.E. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re E.E. et al, Persons Coming Under the
Juvenile Court Law.
                                                                 D063080
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J517898A-B)
         Plaintiff and Respondent,

         v.

RUBEN E. et al.,

         Defendants and Appellants.




         APPEALS from orders of the Superior Court of San Diego County, David B.

Oberholtzer, Judge. Affirmed.

         Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant

and Appellant Ruben E.

         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant Edwin V.
       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.



       Ruben E. appeals a juvenile court order that requires his visits with his daughter,

E.E., occur only during conjoint therapy sessions at his expense. Edwin V. appeals an

order made at the same hearing requiring his visitation with his daughter, E.E.'s half-

sister, A.P., remain supervised.1 We hold the court did not abuse its discretion in making

these visitation orders and affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On August 12, 2010, the San Diego County Health and Human Services Agency

(the Agency) petitioned under Welfare and Institutions Code section 300, subdivision

(b)2 on behalf of seven-year-old E.E., five-year-old A.P., and their younger half-sister,

M.B., alleging (1) the girls' mother, Lorena P., had left them unattended and inadequately

supervised on a busy street and when Lorena was located two hours later, she was

intoxicated; (2) the children were exposed to violent confrontations in the family home



1       Edwin also objects that dependency court minute orders designate him as A.P.'s
biological father, rather than her presumed father. He asserts these incorrect designations
of his paternal status threaten his statutory rights and he asks this court to correct the
record. Edwin is correct that at the hearing on October 7, 2010, the court found him to be
A.P.'s presumed father and entered a judgment of paternity to that effect. However, the
error in the minute orders appears to be merely clerical. Edwin has not shown that he
suffered any prejudice from the error and his concern that he may suffer prejudice in the
future is only speculation.

2      Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
                                             2
between M.B.'s father, Dale B., and Lorena, and Dale and Lorena were in violation of an

active restraining order; and (3) Lorena drank alcoholic beverages to excess, rendering

her unable to provide adequate care for her children.

       The social worker reported the children were taken into custody after Lorena left

them on a street when she was walking to a liquor store. She was intoxicated and told

them she wanted them to die.

       Ruben and Edwin both disclosed criminal histories. Ruben said he had frequently

spent time with E.E. during the first year of her life and he had seen her two times in the

past year. He wanted to take care of her, but was not financially able to do so at that

time. Edwin said he had spent time with A.P. during times when he was not incarcerated,

and she had lived with him and the paternal grandmother for several months in 2007

while Lorena was using methamphetamine. He said he was willing to participate in

services. Both Ruben's and Edwin's case plans required them to participate in parenting

education, a 12-step program, and drug testing.

       In October 2010, the court found the allegations of the petitions to be true. The

court found E.E. and A.P. to be dependent children of the juvenile court and ordered

them placed in relative care.

       Ruben was released from jail in January 2011 after being incarcerated because of a

domestic dispute with his girlfriend. The social worker issued him a bus pass for March,

but he did not visit E.E. He telephoned her twice that month. He tested negative for

drugs in January and February. Edwin was paroled into an in-patient drug program, but

he violated his parole conditions when he used methamphetamine.

                                             3
      At the six-month review hearing in April 2011, the court found neither Ruben nor

Edwin had made substantive progress with the provisions of his case plan. However, the

court continued each man's services for an additional six months.

      The social worker said the Agency had lost contact with Ruben in February 2011

and it was reported that he had left California. Edwin was released from custody and

began substance abuse out-patient treatment. He said he had been trying to visit A.P.

every weekend.

      At the 12-month review hearing in November 2011, the court continued the

children's placements, ordered six more months of services for Edwin, but found Ruben

had not made substantive progress and terminated his services.

      Subsequently, Edwin stopped attending substance abuse treatment. The social

worker reported he had been having clean drug tests, but he did not test in January 2012.

      At the 18-month review hearing in March 2012, the court found Lorena had made

substantive progress with the provisions of her case plan and ordered E.E. and A.P.

placed with her. It found Edwin had not made progress and terminated his services.

      In August 2012, the social worker reported that Edwin, his girlfriend and their

newborn child were living with Edwin's parents. Edwin had visits with A.P. twice each

week supervised by his parents. He had been denied his request for unsupervised visits

because he had not drug tested when requested and A.P. had reported he was sometimes

not at the grandparents' home when she was visiting. In November, however, the family

court mediator recommended Edwin have regular unsupervised visitation with A.P. at the

grandparents' home.

                                            4
       Ruben had no contact with the Agency from February 2011 until he returned to

San Diego in May 2012. In May and June, the social worker supervised three visits. The

visits went well, but Ruben said he had accepted a job in northern California and would

soon be leaving San Diego. Then, in August, he reported he was back in San Diego and

wanted to visit E.E. Lorena said E.E. was hurt that Ruben had been in and out of her life

and had not been a reliable source of support. However, he telephoned E.E. regularly and

by mid-October she was ready to visit him.

       At the family maintenance review hearing in December 2012, the social worker

testified that Edwin had participated in a substance abuse program for a time, but then

stopped attending, saying it was a waste of time. She said he claimed he had been

attending 12-step meetings and had been sober for ten months. The social worker did not

agree with the family court services mediator's recommendation that Edwin have

unsupervised visits with A.P. She said he had not completed any part of his case plan, his

sobriety was short lived and he had been in drug abuse treatment for only a short time.

       Edwin testified he visited A.P. three times each week. He claimed he had not used

heroin since February 2012 and denied using methamphetamine or alcohol. He said he

had not drug tested in June when asked to do so because he did not have proof of his

identity with him that day. He said he was in a drug abuse treatment program and a 12-

step program.

       After considering the evidence and argument by counsel, the court ordered E.E.

and A.P. placed with Lorena and terminated jurisdiction. It ordered Ruben's visitation

with E.E. be only during conjoint therapy sessions at Ruben's expense. It ordered

                                             5
Edwin's visits with A.P. continue to be supervised and ordered him to drug test every

week for six months, and noted six months of clean tests would be sufficient to allow him

to bring a motion in family court seeking unsupervised visitation.

                                        DISCUSSION

                                      I. Ruben's Appeal

       Ruben contends the court abused its discretion by requiring his visitation with E.E.

be only during conjoint therapy at his expense. He argues since he cannot afford to pay

for therapy, he will in effect be denied visits. He argues it is in E.E.'s best interests for

them to have contact.

       When the juvenile court terminates its jurisdiction over a child, the court may

issue an order determining the custody of, and visitation with, the child. (§ 362.4.)

When fashioning orders under section 362.4, the court is guided by the child's best

interests. (In re John W. (1996) 41 Cal.App.4th 961, 973; In re Jennifer R. (1993)

14 Cal.App.4th 704, 712.) The court considers "the totality of the child's circumstances

when making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196,

201.) Orders regarding visitation may be reversed only upon a clear showing of an abuse

of discretion. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) " 'The appropriate

test for abuse of discretion is whether the trial court exceeded the bounds of reason.' "

(In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

       Ruben has not shown the court abused its discretion by requiring his visits with

E.E. be only during conjoint therapy. He had visited her only two times in 2010 and

three times in 2011, and had not been in contact with her during most of the dependency

                                               6
period. At first, he was incarcerated because of a domestic dispute with his girlfriend.

He was released in February 2011, but then the Agency could not locate him and it was

reported that he had moved out of San Diego County. He spoke to E.E. in April 2011

and promised to visit, but he did not keep his promise. He did not appear again until May

2012. He and E.E. had three supervised visits in May and June, but then he said he had

accepted a job in northern California and would be leaving San Diego. E.E. did not want

him to go, and Lorena said E.E. was so hurt by his lack of support she refused to see him

for a time. The court reasonably concluded that because E.E. had been emotionally upset

by Ruben's pattern of absenting himself from her life and not being a source of support

for her, it was in her best interests to require their visitation be in a therapeutic setting.

Ruben has not shown an abuse of the court's discretion.

                                      II. Edwin's Appeal

       Edwin contends the court abused its discretion by ordering his visitation with A.P.

remain supervised. He argues the family court mediator recommended lifting the

supervision requirement since he was compliant with an ongoing substance abuse

treatment program, had nine months of sobriety and had completed parole.

       Edwin has not shown the court abused its discretion by requiring his visits

continue to be supervised. In August 2010, at the time the children became dependents

of the court, Edwin was in prison for a parole violation. His contact with A.P. had been

sporadic because he had been periodically incarcerated for criminal activity, and he

acknowledged a history of abusing heroin. He was released from custody in early 2011

and started out-patient treatment, but by February 2012, he had stopped attending, saying

                                                7
it was a waste of time. He did not drug test in September and admitted he would have

tested positive for marijuana if he had tested at that time.

       Although Edwin was in an out-patient program drug treatment program at the time

of the hearing in December, his history of remaining in a program for a time and then

relapsing supports the juvenile court's decision to require supervision during visits to

continue until Edwin can demonstrate a longer period of sobriety. The fact that the

family court mediator recommended supervision no longer be required is not controlling.

There are significant differences between the family court and the juvenile court. Both

the family court and the juvenile court focus on the best interests of the child, but " '[t]he

presumption of parental fitness that underlies the custody law in the family court just

does not apply to dependency cases.' " (In re Chantal S., supra, 13 Cal.4th at p. 206.)

The juvenile court has been closely involved with protecting the child and has discretion

to make orders concerning custody without preferences or presumptions that are

considered in family court proceedings. (Ibid.) The court reasonably left the supervision

requirement in place, required Edwin to drug test once each week and ruled that six

months of clean tests would constitute changed circumstances sufficient to allow him to

file a motion seeking to lift the supervision requirement. The court's order was

appropriate. Edwin has not shown an abuse of discretion.




                                              8
                                 DISPOSITION

      The orders are affirmed.


                                               O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


McINTYRE, J.




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