IN RE: L.B. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Miguel G. (father) appeals from the judgment of June 21, 2010, ordering a permanent plan of legal guardianship for L.B. under Welfare and Institutions Code section 366.26.¹  He contends the dependency court's failure to specify the frequency and duration of his visitation with L. was an abuse of discretion.   As father did not object to the order in the dependency court, he forfeited the contention;  and this is not the rare case involving the type of legal issue that compels overlooking the forfeiture.   In any event, the dependency court did not abuse its discretion.   Accordingly, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

L. was born in 2008 to father,² age 18, and K.B. (mother).  Father was a former court dependent and former ward of the juvenile court.   He frequently abused drugs and was actively involved in a criminal street gang.   On one occasion, L. and the parents were chased by rival gang members wielding guns.   The parents engaged in mutual combat with their hands, knives, and other objects during and after the pregnancy.   The domestic violence resulted in physical injuries to L. and mother.

In July 2008, the parents, homeless, left L. in the care of the maternal great grandparents without providing written authorization to obtain medical care for the child.   Father provided no support, rarely visited, and did not tell the caretakers how to reach him.

L. was detained by the Department of Children and Family Services (Department) on November 10, 2008, when the parents failed to work with the Department to devise a Volunteer Family Maintenance Plan. A section 300 petition was filed.   On November 13, 2008, the dependency court granted father monitored visits.   Father received counseling and drug testing referrals in December 2008.

On February 17, 2009, L. was declared a dependent of the court based on sustained allegations under section 300, subdivisions (a), (b), and (g).³  Custody was taken from the parents, father was ordered to participate in a reunification plan of counseling programs and drug testing, and monitored visits were granted.

Father failed to reunify with L. His visits were brief and irregular.   He hung out with his friends in Harbor City. On September 29, 2009, his reunification services were terminated.

Father did not remain involved in the proceedings, and the Department was unable to locate him.   After August 2009, he had no contact with L.

On February 22, 2010, mother's reunification services were terminated, and the matter was set for a section 366.26 hearing on June 21, 2010.   The maternal great grandparents preferred legal guardianship, not adoption, because they wanted to give mother more time to become a fit parent.   L. thrived in the maternal great grandparents' loving, nurturing care.

A section 366.26 permanent plan hearing was held on June 21, 2010.   Father was not present.   His counsel stated he had been arrested four days earlier.   The dependency court found termination of parental rights would be detrimental to the child.   Legal guardianship of L. was ordered with the maternal great grandparents.   The parents were granted “monitored visits[.]  ․ Legal Guardian has discretion to liberalize in accordance [with] the best interest of the child.”   Father's counsel did not object to the visitation order or request a different order.   Letters of guardianship were issued, with the dependency court retaining jurisdiction.

DISCUSSION

Forfeiture

Father's sole issue on appeal is that the dependency court abused its discretion in failing to specify frequency and duration when it granted father monitored visits.   We conclude the contention was forfeited, and in any event, is not meritorious.

When legal guardianship is ordered, the dependency court must make an order for parental visitation, unless visitation would be detrimental. (§ 366.26, subd. (c)(4)(C); ⁴  In re M.R. (2005) 132 Cal.App.4th 269, 274.)   The guardians must not be given absolute discretion to determine whether visitation will occur at all.  (In re M.R., supra, at p. 274.)   Where the court orders visitation to take place, the details of frequency and duration may be delegated to the guardian to determine.  (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376–1377;  In re Randalynne G. (2002) 97 Cal.App.4th 1156, 1165.)

The Department contends father waived the issue by failing to raise it below.   As father did not object below, or ask the dependency court to specify the frequency and duration, we conclude he forfeited the issue.  “A parent's failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court.”  (In re Elijah V. (2005) 127 Cal.App.4th 576, 582;  accord, In re Sheena K. (2007) 40 Cal.4th 875, 880–881 [even constitutional rights may be forfeited “ ‘ “by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’  [Citations.]”];  In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court”];  In re Dakota H. (2005) 132 Cal.App.4th 212, 221 [a “party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court”].)

Father asks us to exercise our discretion to consider the issue because it raises a pure question of law and because of the magnitude of the interest involved.   In dependency cases, discretion to consider forfeited claims “must be exercised with special care[.]”  (In re S.B., supra, 32 Cal.4th at p. 1293.)  “[T]he appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.”   (Ibid.)

This is not a case that warrants our excusing the forfeiture.   The forfeited challenge does not present an important legal issue, as the legal principles are well settled.   It presents an issue of the dependency court's discretionary exercise of its statutory authority.  (Compare In re S.B., supra, 32 Cal.4th at pp. 1293–1294 [the forfeited issue involved interpretation of a statute and had divided the courts of appeal];  In re M.R., supra, 132 Cal.App.4th at p. 272 [the forfeiture was excused in order to clarify a recent statutory amendment].)

Were we to address the issue, we would use the abuse of discretion standard (e.g., In re Grace C. (2010) 190 Cal.App.4th 1470, 1479) and conclude that the order was not an abuse of discretion.   Throughout the dependency, father rarely visited L. He stopped visiting 10 months before the hearing.   His custody status was uncertain.   He made no substantial attempt to rehabilitate himself.   When the dependency court granted him visits in the guardianship order, he did not ask the court to grant any specific frequency.   The foregoing indicates father's interest in L. was ambivalent, at best, and his ability to visit uncertain.   In these circumstances, specifying the rate and duration of visitation would serve no purpose, and it was reasonable for the court to leave those details to the legal guardians, if and when father comes forward and requests visitation.   Any visitation difficulties that may arise may be addressed in a petition to modify the guardianship order (Cal. Rules of Court, rule 5.740(c)) or at a periodic review hearing (§ 366.3, subd. (d)).

DISPOSITION

The order is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. Hereinafter, all statutory references will be to the Welfare and Institutions Code unless otherwise indicated..  FN1. Hereinafter, all statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

FN2. The dependency court found father to be L.'s presumed father..  FN2. The dependency court found father to be L.'s presumed father.

FN3. Subdivision (a) of section 300 describes a child who is at substantial risk of nonaccidental infliction of serious physical harm, subdivision (b) describes a child who is at substantial risk of negligent infliction of serious physical harm or illness, and subdivision (g) describes a child who was left with no provision for support..  FN3. Subdivision (a) of section 300 describes a child who is at substantial risk of nonaccidental infliction of serious physical harm, subdivision (b) describes a child who is at substantial risk of negligent infliction of serious physical harm or illness, and subdivision (g) describes a child who was left with no provision for support.

FN4. “The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).).  FN4. “The court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).)