In re J.K. CA4/1 ( 2023 )

Filed 5/31/23 In re J.K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.K., a Person Coming Under
the Juvenile Court Law.
D081509
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J520626)
Plaintiff and Respondent,
v.
S.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for
Defendant and Appellant, S.M.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Natasha C. Edwards, Deputy County Counsel, for
Plaintiff and Respondent.
In this dependency proceeding, S.M. (Mother) appeals a juvenile court
visitation order, arguing the court abused its discretion in not ordering
unsupervised visitation. The San Diego County Health and Human Services
Agency (Agency) contends Mother forfeited this argument by not specifically
requesting unsupervised visitation at trial or in her notice of appeal.
We reject the Agency’s forfeiture argument but conclude the juvenile
court did not abuse its discretion. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
J.K. came to the Agency’s attention in January 2021 because Mother
tested positive for amphetamines and methamphetamine a week prior to the
baby’s delivery. A nurse also reported concerns about the baby’s father, M.K.
(Father)1, because when he visited, he was sweaty, immediately went to
sleep on the couch, and appeared to be “coming off something.” Mother
subsequently admitted to having used methamphetamine once a month
leading up to J.K.’s birth. Even though Father suspected Mother was using
drugs during her pregnancy, he did not intervene. Both parents reported
long histories of drug use and participation in court-ordered substance abuse
treatment programs.
The Agency filed a petition under Welfare and Institutions Code2
section 300, subdivision (b)(1) based on Mother’s substance abuse and
detained J.K. in a confidential foster home. At the detention hearing, the
juvenile court placed J.K. with Father, required Mother to move out of the
home, and authorized voluntary reunification services and liberal supervised
1 The Father is not a party to this case.
2 All statutory references are to the Welfare and Institutions Code.
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visitation for Mother. The court afforded the Agency discretion to allow
unsupervised visitation and overnight visits.
Father had a positive hair follicle drug test in February 2021,
indicating recent methamphetamine use. And, after Mother told a social
worker she was residing with the maternal grandmother, the Agency
discovered that Mother had remained in the home with Father and J.K.
At the February 2021 contested adjudication and disposition hearing,
the court ordered Mother to comply with her case plan, which required
participation in a drug treatment program and Narcotics Anonymous (NA);
random drug testing; and parenting education classes. Mother initially
attended drug treatment groups and individual counseling, but by May was
not enrolled in a drug treatment program, participating in services, or
submitting to drug tests. She claimed to be attending a recovery program in
May and June, but a social worker contacted the program and learned that
Mother was not registered.
In July 2021, counsel for J.K. filed a section 388 petition requesting
removal of J.K. from Father’s custody after Father missed five drug tests and
then was caught by testing personnel trying to falsify a drug test result using
a device called a “Whizzinator.” Father subsequently tested positive for
methamphetamine. Consequently, the juvenile court removed J.K. from
Father’s custody, placed him with a nonrelative extended family member,
and authorized supervised visitation for both parents.
Mother enrolled in a new drug treatment program but tested positive
for methamphetamine in July and August 2021. Thereafter, Mother stated
that she had difficulty attending her services and drug treatment program
due to her work schedule. In March 2022, Mother said she would email
pictures of her NA meeting logs, certificates, and drug testing receipts to a
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social worker, but as of May, the social worker had not received any of the
documentation.
During a six-month review hearing in March 2022, Mother requested a
contested hearing and listed expanded visitation as a trial issue, along with
reasonable services and return of the child to the parents. At the contested
six-month review hearing in May 2022, Mother requested unsupervised
visits. The court denied the request based on the lack of information that she
had mitigated the protective issue in the case. However, the court
emphasized that it had granted the Agency discretion to lift supervision and
even expand to a 60-day trial visit upon proof that Mother had made progress
with her services.
After one negative test in early March 2022, it appears Mother did not
complete any drug tests for the remainder of the year. Meanwhile, the
Agency placed J.K. with his maternal grandmother in June 2022, because his
previous caregivers could no longer provide care for him.
Father was arrested on federal charges and then released in late July
2022 to an inpatient substance abuse treatment program.
Mother resumed drug treatment in August 2022, but left the program
by October 2022 due to her work schedule. Mother again failed to email the
Agency proof of her NA meeting attendance. She also explained that she did
not have a sobriety date because she continued to drink alcohol, which she
did not believe was a problem for her.
At the November 10, 2022 pretrial status conference, the court noted
the Agency’s recommendation that visitation remain supervised. In
response, Mother’s counsel indicated that expanded visitation and
continuation of services would be issues for trial.
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In December 2022 and January 2023, Mother did not show up for a
scheduled drug test and declined the Agency’s offer to have a mobile test unit
come to her home. The Agency was unable to reach Mother to confirm
whether she was participating in any drug treatment services, but it did
receive a letter confirming Mother had attended 12 parenting classes. Father
had continued to do well in the inpatient drug treatment program and was
set to graduate at the end of January. He reported having finished the 12th
step with his NA sponsor.
Throughout the life of the case, the Agency frequently had difficulty
contacting Mother. However, Mother regularly visited J.K. and the various
individuals supervising the visits described them as positive. She
consistently interacted lovingly and appropriately with J.K. And, in advance
of the pretrial conference, the maternal grandmother filed a request seeking
unsupervised visitation for Mother.
At the January 23, 2023 contested 12-month hearing, the Agency
recommended the juvenile court terminate both parents’ services and set a
permanency planning hearing. Mother’s counsel asked the court to extend
Mother’s services, highlighting her consistent and positive visitation with
J.K. and efforts to comply with her case plan.
The court concluded that Father had made substantial progress with
his substance abuse treatment and extended his reunification services.
However, it concluded that Mother had not made progress with regard to
substance abuse and, therefore, terminated her reunification services. In so
doing, the court did note that Mother regularly and consistently visited J.K.
and that the visits were positive. The court then authorized continued
“reasonable supervised visitation” and granted the Agency discretion to
expand the visitation.
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DISCUSSION
I.
Mother Did Not Forfeit Her Right to Challenge the Juvenile Court’s Order
Mother argues the juvenile court abused its discretion by ordering
supervised, instead of unsupervised, visitation at the contested 12-month
review hearing. The Agency contends Mother forfeited this basis for appeal
because she did not request unsupervised visitation at the contested 12-
month review hearing or expressly appeal the supervised visitation order.
We disagree.
An appellate court generally will not consider a challenge to a trial
court’s ruling if the aggrieved party could have, but did not, timely object in
the trial court when its purported error could easily have been corrected. (In
re S.B. (2004) 32 Cal.4th 1287, 1293.) This forfeiture principle applies
equally to dependency matters and precludes a party from “standing by
silently until the conclusion of the proceedings.” (In re Dakota H. (2005) 132
Cal.App.4th 212, 222.)
In this case, we conclude Mother sufficiently brought her request for
expanded visitation to the juvenile court’s attention and preserved the issue
for appeal. The Agency’s September 2022 status review report recommended
termination of Mother’s reunification services and reasonable supervised
visitation. As the Agency acknowledges, Mother responded to this
recommendation during the November 2022 pretrial settlement conference by
requesting that expanded visitation be included as an issue for trial.
Although Mother’s counsel did not then expressly raise the issue during the
contested 12-month review hearing, she did ask the court to extend Mother’s
reunification services. In so doing, counsel highlighted at length Mother’s
consistent and positive visitation record. It is well established that
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“[v]isitation is an essential component of a reunification plan” (Tracy J. v.
Superior Court (2012) 202 Cal.App.4th 1415, 1426 (Tracy J.)) and that during
the reunification period, visitation should be “as frequent as possible,
consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A); Tracy J.,
at p. 1426.) Thus, a request for continued reunification services impliedly
includes a request for continued, frequent visitation. Coupled with counsel’s
prior emphasis on expanding visitation, we conclude this request adequately
raised her objection to the Agency’s recommendation of supervised visitation,
which the juvenile court impliedly overruled in ordering continued supervised
visitation.
Mother also challenged the appropriate order on appeal. A “notice [of
appeal] is sufficient if it identifies the particular judgment or order being
appealed.” (Cal. Rules of Court, rule 8.100(a)(2).) Here, Mother’s notice of
appeal challenged the juvenile court’s January 23, 2023 order, which granted
her supervised visitation in addition to terminating her court-mandated
reunification services.
While she also specifically indicated that she was appealing the court’s
termination of her parental rights and services3, this does not alter our
conclusion. A notice of appeal must be liberally construed. (Cal. Rules of
Court, rule 8.100(a)(2); Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.)
California Rules of Court, “[r]ule 8.100(a)(2)’s liberal construction
requirement reflects the long-standing ‘ “law of this state that notices of
appeal are to be liberally construed so as to protect the right of appeal if it is
reasonably clear what [the] appellant was trying to appeal from, and where
the respondent could not possibly have been misled or prejudiced.” ’
[Citations] The rule is intended to ‘implement the strong public policy
3 The order did not actually terminate her parental rights.
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favoring the hearing of appeals on the merits.’ ” (K.J. v. Los Angeles Unified
School Dist. (2020) 8 Cal.5th 875, 882.) Mother’s notice of appeal correctly
identifies the challenged order, which is all that is required. The Agency does
not claim it was in any way misled or prejudiced and, because it had notice of
all the rulings made in the challenged order, the Agency was in no way
hindered in its ability to prepare for the appeal. (K.J., at p. 890.) Mother
filed her notice of appeal in propria persona and, to the extent it was in any
way unclear, we liberally construe it as challenging the supervised visitation
ruling.
Accordingly, we conclude Mother did not forfeit her claim on appeal.
II.
The Court Did Not Abuse Its Discretion by Ordering Supervised Visitation
Mother’s contention nonetheless fails on the merits. “ ‘In matters
relating to child custody and visitation rights, the trial court is vested with a
wide discretion and its determination will not be disturbed in the absence of a
manifest showing of abuse.’ ” (In re Sofia M. (2018) 24 Cal.App.5th 1038,
1044; accord In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356 [“We review
an order setting visitation terms for abuse of discretion”].) A trial court
abuses its discretion only when its decision exceeds the bounds of reason. (In
re Stephanie M. (1994) 7 Cal.4th 295, 318–319 (Stephanie M.).)
Here, the juvenile court’s decision at the contested 12-month review
hearing was reasonable in view of the evidence presented. The court had
already made clear to Mother after she requested unsupervised visitation
during the six-month review hearing that it denied her request because she
had not demonstrated mitigation of the protective issue in this case—
methamphetamine abuse. Although the court granted the Agency discretion
to lift supervision upon proof that Mother had made progress with her
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services, the record shows Mother minimally complied with her case plan and
repeatedly failed to provide proof of participation in services to the Agency.
In its report just prior to the contested 12-month review hearing, the
Agency explained that Mother continued to decline to drug test and that it
had been unable to reach her to confirm whether she was obtaining any form
of substance abuse treatment. As Mother’s inability to care for J.K. while
using methamphetamine was the issue that brought J.K. under the court’s
jurisdiction, it was not unreasonable for the juvenile court to once again
conclude that allowing her to care for the child unsupervised was not in his
best interest—particularly given that J.K. was only two years old at the time
of the hearing. (See In re T.M. (2016) 4 Cal.App.5th 1214, 1220 [explaining
that “ ‘[w]hile visitation is a key element of reunification, the court must
focus on the best interests of the child[] “and on the elimination of conditions
which led to the juvenile court’s finding that the child has suffered, or is at
risk of suffering, harm specified in section 300” ’ ”]; Stephanie M., supra, 7
Cal.4th at p. 317 [after termination of reunification services, the court
continues to focus on determining what is in the best interest of the child].)
On more than one occasion, Mother was also dishonest with the Agency about
her compliance with court orders and her case plan. This offered further
grounds for the court to be concerned about Mother providing unsupervised
care for J.K., no matter how positive those visits might be. On this record, we
conclude the court did not abuse its discretion in continuing to require
supervised visitation.
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DISPOSITION
The January 23, 2023 order is affirmed.
CASTILLO, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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