In re K.M. CA3 ( 2014 )

Filed 1/15/14 In re K.M. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re K.M., a Person Coming Under the Juvenile C072564
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD231465)
HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
M.S.,
Defendant and Appellant.
Marilyn. S., mother of Kristen M. (born September 1996, hereinafter the minor),
appeas from the juvenile court’s November 8, 2012 order prohibiting any contact
between mother and the minor. On appeal, mother contends the “no-contact” order
constitutes impermissible punishment and is not supported by sufficient evidence. We
disagree and shall affirm the no-contact order.
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FACTUAL AND PROCEDURAL BACKGROUND
The minor was removed from mother’s home (along with her brother and sister) in
December 2010.1 (In re J.M. et al. (May 30, 2012, C068694) [nonpub. opn.].) In July
2011, the minor was adjudged a dependent child and placed in the custody of her father.
Mother was given visitation, the details of which were to be determined by the
Sacramento County Department of Health and Human Services (the Department).
By January 2012, the minor tried to run away from father’s home. Accordingly,
the Department filed a section 387 petition and placed the minor in a foster home. The
minor continued to exhibit self-destructive behavior while in the foster home (e.g.
disappearing for hours, taking a pipe and lighter to school, repeated unexplained absences
from school).
On March 22, 2012, the juvenile court found true the allegations in the section 387
petition and amended mother’s reunification services to include additional counseling for
mother, as well as random testing for drugs and alcohol. A week later, the minor was
moved to the Children’s Receiving Home (CRH) at her own request. That same day,
March 28, 2012, the minor ran away from CRH and the juvenile court issued a protective
warrant.2 Nearly a month later, the minor was located in Seattle, Washington and
returned to Sacramento.
The Department’s Section 388 Petitions
On May 24, 2012, the Department filed a section 388 petition, asking the juvenile
court to allow the minor to go from the CRH to the home of Carolyn C., a non-related
extended family member (NREFM), for an extended visit. The Department noted that
the minor was already staying with Carolyn C. and was agreeable to remaining there until
1 The minor’s siblings are not involved in this appeal.
2 The warrant was later recalled.
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an appropriate placement could be found.
In support of its petition, the Department represented that the minor had been
“AWOL” from the CRH for “an extended period of time.” While AWOL, the minor
“participated in dangerous behavior,” including drug use and prostitution. As a result of
these behaviors, the minor had been physically abused by a “pimp” and contracted a
sexually transmitted disease. The juvenile court denied the petition.
On June 5, 2012, the Department filed another section 388 petition asking the
same thing. The court set a hearing for later that month; pending that hearing the minor
was ordered “to spend no more than 2 nights in the home of a relative/NREFM in any 7
day period.”
Before the hearing, the minor’s self destructive behaviors returned; she was taking
“any medication she could find” trying to “get high,” and she was using the Internet to
meet men. Carolyn C. suspected the minor was, again, prostituting herself. The
Department attempted to place the minor in a level 14 group home but before she could
be moved, the minor ran away. Earlier that month, Carolyn C. had allowed the minor to
visit mother for a week without the Department’s permission, and when the minor ran,
she returned to mother’s home.
At a hearing held on August 16, 2012, the Department advised the juvenile court
that the minor was AWOL and it had information that mother was “harboring the child.”
Accordingly, the Department withdrew its section 388 petition. The juvenile court
terminated mother’s reunification services and ordered mother to appear in court with the
minor on September 6, 2012.
Mother appeared at the September 6, 2012 hearing and the court ordered her to
have only supervised visits with the minor, “as arranged and directed by [the Department]
as in the [minor’s] best interests.” The following day, the court issued a custody warrant
for the minor when she again went AWOL; the court also ordered mother to appear in
court to address the minor’s renewed AWOL status.
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September 13, 2012
On September 13, 2012, mother appeared in court to address the minor’s status.
According to the Department and mother, on September 11, 2012, law enforcement
found the minor in mother’s home. Law enforcement took custody of the minor and
drove her to a local shelter, from which the minor quickly ran away. Thus, at the time of
the hearing, the minor was, again, AWOL.
In response to the juvenile court’s questioning, mother acknowledged she had
taken the minor into her home on September 11, 2012, ignoring the court’s order that her
contact with the minor be supervised. She explained that the minor called her and said
she was at the Santa Cruz Boardwalk. According to mother, when her attempts to reach
the social worker and her attorney failed, mother contacted “a personal friend” who
worked for the San Jose Police Department. That friend advised mother to have a family
member pick up the minor because he was unable to do so due to a family situation.
Mother told the court she contacted her own stepmother to retrieve the minor from the
Boardwalk.3
The social worker indicated she was not working that day, but always leaves a
number for people to call in case of emergency; mother did not call that number.
According to the social worker, mother left several messages but mother never said she
had the minor in her custody, only that the minor had contacted her. Mother also told
father the minor was in Santa Cruz but did not want to contact law enforcement for fear
the minor would “take off again.”
Mother told the court that violating the court’s order “wasn’t the first thought that
occurred [to her] because [her] daughter was out on the streets.” The court responded,
“Okay. Well, [mother], what you failed to understand is a large part of the reason that
3The Department later learned the stepmother was unable to retrieve the minor, so
mother actually retrieved her.
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your daughter is on the streets is because you’re letting her play you. The expectation of
this court is that you’re going to follow court orders, that you’re going to be an involved
part of this process. It’s been very clear to me from day one that you’ve been in
Sacramento County that you’re interested in doing your own dealing and your own
program and not interested in what the court has to say. That’s part and parcel of the
problem is that you send a message to your daughter that that’s okay. You heard me
spend an hour talking to [the minor] a week ago about making good choices and about
her responsibility for her choices. You have to act like a parent and say I’m not taking
you in. Tell me where you’re at and I’ll help get to law enforcement to help you get back
so you could get to the place where you need to be, because I’m not going to jail because
you want to make poor choices. That’s what a real parent would say to her 15-year-old
daughter that’s running the streets that wants me to believe that she is being beaten and
sexually abused and horrible things are happening to her. All you’re doing is enabling
you daughter to continue to be victimized.
“THE MOTHER: Your Honor, I had that very discussion with [the minor]. I
made it very clear to her. That this is --
“THE COURT: [Mother], apparently you don’t understand. You’re not to be
having any discussions with [the minor] that somebody from [the Department] does not
understand [sic], because I simply don’t trust you and believe you anymore.”
After considering the evidence, the court ruled as follows: “All right. And the
Department at the last hearing had requested that I order no contact between [mother] and
[the minor], and the court was reluctant to do that for the reasons I stated last week. I am
inclined to modify that order at this time.” Minor’s counsel agreed to the no-contact
order, but admitted to not knowing the minor’s position on the issue given that the minor
was still missing. The court then issued a no-contact order, precluding mother from
having any contact with the minor: “That includes no telephone contact, no cellular
phone contact, no e-mail contact, no personal contact, no contact through other
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individuals, which means that other individuals are not to be used as a conduit to
[mother].
“If [the minor] contacts [mother], [mother] is hereby directed to advise [the minor]
that there is a court order in place prohibiting their contact, and to encourage [the minor]
to call [a social worker], her court-appointed counsel for appropriate direction or to
contact [father], whom the court trusts at least will respond appropriately in terms of
complying with the orders of the court to secure [the minor’s] presence back into
protective custody.” The court further ordered mother to appear on September 18, 2012,
for arraignment on a contempt citation, and the Department to prepare a report on exactly
what happened on September 11, 2012, after contacting mother’s friend at the San Jose
Police Department. The court then set a review hearing for November 1, 2012.
November 8, 2012
Mother failed to appear in court on November 1, 2012, due to transportation
issues. The court agreed to continue the hearing for one week and issued a warrant for
mother’s arrest, staying the warrant until November 8, 2012.
On November 8, 2012, mother and the minor both appeared in court. Mother’s
brothers, Bob and Gary were also present. Bob, who brought the minor to court,
explained how he picked up the minor from an empty trailer in Hayward, California after
he had been contacted by mother. According to Bob, mother did not tell him there was a
warrant out for the minor or that he should contact the social worker. Bob kept the minor
with him for several days while he contacted several “agencies” to determine what he
should do with the minor. Gary, who had already contacted the social worker, gave Bob
the social worker’s phone number and Bob called her.
According to the social worker, the minor was living with her maternal step-
grandmother (Kathy) in Hayward while she was AWOL; the empty trailer was owned by
Kathy’s boyfriend. The social worker had sent law enforcement to Kathy’s home while
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the minor was missing three times to no avail. By the minor’s account, mother was “in
and out” of Kathy’s home during that same time period.
After hearing from the Department, the juvenile court noted mother’s repeated
failures to comply with the court’s order and suggested the Department pursue criminal
charges against mother and Kathy for their conduct. The Department indicated its intent
to place the minor in a facility in Arizona. Pending that placement, the minor asked if
she could stay with Gary. From the audience, Gary expressed a willingness to safeguard
the minor her until she could be moved to Arizona.
The Department was amenable to temporarily placing the minor with Gary, but it
sought another no-contact order between mother and the minor. The court ordered the
Department to assess the uncles for temporary placement and agreed a no-contact order
between mother and the minor was warranted: “ . . . I think I’ve been very patient in
attempting to work with [mother] and ensure that she is having ongoing contact with her
child. I just don’t think it’s beneficial for the child anymore. So I’m stopping it.” The
court also issued a no-contact order between Kathy and the minor. Mother objected to
the no-contact order.
The juvenile court also advised Bob and Gary that a failure to follow court orders
would not be tolerated: “I know the uncles aren’t aware of the entire history of this case.
I could just tell the two of you that to be very frank, I’m kind of done with [mother]. If
this were a criminal court, I’d lock her up. It’s very, very clear to me that she has
violated orders of this court, that she has little, if any, regard for the directions of the
Court. . . . And it’s important that the two of you understand that I’m telling the
Department to go to law enforcement about criminal charges for people that don’t
comply with my orders.”
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Mother appeals.
DISCUSSION
Mother contends the no-contact order constitutes impermissible punishment and is
not supported by the evidence. We disagree.
“The purpose of a dependency proceeding is to protect the child, rather than
prosecute or punish the parent. [Citations.]” (In re Savannah M. (2005) 131 Cal. App. 4th
1387, 1395.) Here, the juvenile court expressed its frustration with mother and her
ongoing refusal to follow the court’s orders, which had resulted in a failure to protect the
minor. The court thus issued the no-contact order to protect the minor from mother’s
conduct. That the court believed mother’s conduct warranted criminal punishment was
evident, but clearly irrelevant to its no contact order.
Accordingly, we conclude the juvenile court’s November 2012 no-contact order
did not constitute impermissible punishment.
Mother next suggests the juvenile court erred by not making an “express finding
of detriment, as required by statute. . . .” To the extent mother intends this as a claim of
error on appeal, she forfeited review of this issue by failing to specifically object to the
lack of such finding in the juvenile court.
“General objections are insufficient to preserve issues for review. [Citation.] The
objection must state the ground or grounds upon which the objection is based.
[Citation.]” (In re E.A. (2012) 209 Cal. App. 4th 787, 790.)
Here, mother’s counsel objected to the initial no contact order in September 2012,
stating, “I would object to the no-visitation order.” Counsel renewed the objection at the
November 8, 2012 hearing: “I believe we objected at the hearing as to the no-contact
order or visitation order. We continue that objection today.” Had counsel specifically
objected on the grounds that the court had not found detriment, the court could have
addressed the deficiency. Accordingly, mother has forfeited her claim.
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In any event, as we discuss immediately post, here there was sufficient evidence to
support an implied finding of detriment. (See In re Z.K. (2011) 201 Cal. App. 4th 51, 66
[finding insufficient evidence to support an implied finding of detriment from termination
of services, supervision of visits, and failure to pass home study].)
Finally, mother contends there “is no evidence that the visits between her and [the
minor] caused detriment to [the minor].”
Following the termination of reunification services, “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.” (§ 366.22, subd. (a).) In reviewing the sufficiency of the
evidence to support a trial court's rulings, an appellate court applies the substantial
evidence standard of review. (In re Jasmine C. (1999) 70 Cal. App. 4th 71, 75.) Under
this deferential standard of review, mother bears the burden to show insufficient
evidence, and we must review the evidence in the light most favorable to the trial court's
order, drawing all reasonable inferences and resolving doubts in favor of the court's
order. (See In re Autumn H. (1994) 27 Cal. App. 4th 567, 576.) We will infer any implied
findings if substantial evidence supports them. (See In re S.G. (2003) 112 Cal. App. 4th
1254, 1260 [the "pertinent rule of appellate review" is that appellate court “will infer a
necessary finding provided the implicit finding is supported by substantial evidence”].)
Here, when the minor first ran away, she was found with a friend in Seattle. After
that, she was placed in the CRH but was staying with Carolyn C. The minor was doing
well enough to prompt the Department to seek to have her placement changed from the
CRH to Carolyn C.’s home. Then Carolyn C. allowed the minor to spend an
unsupervised week with mother. Soon after, the minor returned to her self-destructive
behaviors, including drugs and prostitution.
When the minor ran away a second time, she ran to mother, who “harbored” the
minor until she was ordered to bring the minor to court. The day she was brought to
court, the minor ran away again and again was found in mother’s custody. Mother,
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again, expressed in court an unwillingness to work with the Department or the juvenile
court to ensure the minor’s safety. And, when the minor ran a third time, she was found
in a trailer owned by mother’s stepmother, and was living there with mother’s
knowledge.
Mother argues the minor should not be “deprived of all contact with mother
simply because mother violated a court order. . . .” But mother’s contact has consistently
allowed, and arguably encouraged, the minor to continue to run from her court-ordered
placement and corresponding services. Mother’s repeated, unauthorized contact with the
minor also continued to place the minor in dangerous situations (e.g. living in an empty
trailer).
Indeed, mother’s violation of multiple court orders under these circumstances was
evidence that she was not acting in the best interests of the minor. It was evident from
the pattern of the minor’s behavior (as noted by the juvenile court) that mother was
“enabling [her] daughter to continue to be victimized. . . .” The evidence supports a
finding that continued contact between the minor and mother would cause further
detriment to the minor. Thus the juvenile court’s no-contact order was supported by
sufficient evidence.
DISPOSITION
The order of the juvenile court is affirmed.
DUARTE , J.
We concur:
MAURO , Acting P. J.
MURRAY , J.
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