In re M.J. CA2/6 ( 2021 )

Filed 10/18/21 In re M.J. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re M.J., a Person Coming 2d Juv. No. B311428
Under the Juvenile Court Law. (Super. Ct. No. J072332)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
T.H.,
Defendant and Appellant.
T.H. (mother) appeals the juvenile court’s visitation orders,
commonly known as “exit orders,” entered upon the dismissal of
her daughter M.J.’s dependency proceeding. (See Welf. & Inst.
Code, § 362.4.)1 The court granted sole legal and physical custody
All statutory references are to the Welfare and
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Institutions Code.
of the 14-year-old to her father, S.J., but ordered that “mother
shall have unsupervised visitation with [M.J.] at a minimum of 2
times per week for 2-3 hours each visit. Days can vary and will
be contingent [upon M.J.’s] schedule. The father . . . has
discretion to allow for more days, hours, and overnight visits.”
Mother contends that the evidence supported an order for
more weekly unsupervised visits and that granting father
discretion to allow more visits was an unlawful delegation of the
juvenile court’s authority. We conclude mother forfeited these
arguments by failing to raise them in the juvenile court. In any
event, the minimum weekly visitation order is supported by the
evidence and the order allowing father to permit additional
visitation is not unlawful since he only has the authority to
increase the visitation ordered by the court, not to eliminate it
altogether. (See In re T.H. (2010) 190 Cal.App.4th 1119, 1123; In
re A.C. (2011) 197 Cal.App.4th 796, 800.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As we explained in our earlier opinion, “[t]his dependency
proceeding involves a mother who became convinced her
daughter, M.J. . . . was seriously ill even though she has only
minor health issues. After M.J.’s doctors expressed concern
about the number of unwarranted medical appointments and
resultant school absences, Ventura County Human Services
Agency (HSA) filed a petition under . . . section 300, subdivision
(b)(1) seeking to declare M.J. a dependent of the juvenile court
and to place her in her father's sole custody. Mother and father
previously had joint custody.” (In re M.J. (Dec. 23, 2020,
B305763) [nonpub. opn.].)
“Following a dispositional evidentiary hearing, the juvenile
court sustained the petition, finding that M.J. . . . was at a
substantial risk of serious physical harm or illness because of
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mother’s failure or inability to provide appropriate care and
support, and that mother has mental health issues that
periodically interfere with her ability to provide adequate care
and supervision. . . . [¶] The juvenile court extended father’s
exclusive custody of M.J. and ordered mother’s visitation to be
supervised. It did give HSA discretion to liberalize mother’s
visitation to monitored or unsupervised.” (In re M.J., supra,
B305763.)
Mother appealed the dispositional orders, arguing they
were not supported by substantial evidence. We affirmed, noting
that “mother does not believe she has done anything wrong” and
that there was “a risk, based on her history, that she ‘won’t be
able to stop herself from seeing something that’s not there.’” (In
re M.J., supra, B305763.)
Since that time, mother’s fixation on M.J.’s health and her
paranoid thinking have not significantly changed. Mother also
has been unwilling to participate in recommended services,
including counseling. Following a contested trial, the juvenile
court adopted HSA’s proposal to maintain mother’s twice weekly
unsupervised visitation with M.J. and to allow father discretion
to offer her additional visits.
DISCUSSION
Mother does not contest the juvenile court’s order granting
full legal and physical custody to father, which was the primary
focus of the trial. She appeals the visitation orders. The parties’
counsel did not specifically address those orders during their
closing arguments, and neither mother nor her attorney objected
to the language of the orders. Even if a general objection could be
inferred from the record, there was no assertion that the court
unlawfully delegated the its visitation authority to father.
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A party generally forfeits the right to claim error as
grounds for reversal on appeal when he or she fails to object in
the trial court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-
222.) Principles of forfeiture apply in dependency litigation and
preclude a party from “standing by silently” until the conclusion
of the proceedings. (Id. at p. 222.) “[An] appellate court’s
discretion to excuse forfeiture should be exercised rarely and only
in cases presenting an important legal issue.” (In re S.B. (2004)
32 Cal.4th 1287, 1293, superseded by statute on another ground
as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) That
discretion must be exercised “with special care” in dependency
proceedings because they involve considerations of permanency
and stability of children, which are issues of “paramount
importance.” (In re S.B. at p. 1293.)
In Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676,
the Court of Appeal concluded the parent had forfeited a
challenge to the unlawful delegation of visitation authority to a
parole officer by failing to raise it at trial. (Id. at pp. 685-686; see
In re Valerie A. (2007) 152 Cal.App.4th 987, 1001 [parent
forfeited challenge to frequency of visitation by not objecting to
visitation schedule].) We reach the same conclusion here. As in
Kevin R., any issue regarding the juvenile court’s purported
unlawful delegation of visitation authority should have been
raised in that court in the first instance. (Kevin R., at pp. 685-
686.) Mother was advised of HSA’s visitation recommendation
and should have been prepared to oppose it if she did not agree.
Forfeiture aside, mother has not demonstrated that the
juvenile court’s visitation order constituted an abuse of
discretion. (See In re R.R. (2010) 187 Cal.App.4th 1264, 1284
[“We review an order setting visitation for abuse of discretion”].)
As a general rule, the juvenile court may not delegate to
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nonjudicial officials or private persons its power to determine the
right and extent of visitation. (In re T.H., supra, 190 Cal.App.4th
at p. 1123.) Contrary to mother’s assertions on appeal, this case
is not analogous to In re T.H. The juvenile court in that case
improperly delegated to mother the discretion to allow, or not
allow, visitation by issuing an exit order giving father supervised
visitation “‘to be determined by the parents’” upon agreement.
(Id. at pp. 1121, 1123.) The Court of Appeal noted the visitation
order was “more than simply a delegation of the authority to set
the ‘time, place and manner’ of the visitation — it effectively
delegate[d] to mother the power to determine whether visitation
will occur at all.” (Id. at p. 1123.) The court remanded the
matter for the juvenile court to “exercise its discretion in
formulating an order that establishes, at the very least, the
amount of visitation to which father is entitled.” (Id. at p. 1124,
italics added.)
In contrast, the juvenile court in this case clarified the
amount of visitation to which mother is entitled. It ordered
unsupervised visits of at least two times per week for 2 to 3
hours. It did not, as in In re T.H., delegate the allowance of
visitation to father as the custodial parent. Given the
specification of at least two unsupervised visits per week, the
provision allowing father to authorize more visits is not
tantamount to an improper delegation of the visitation orders.
(See In re T.H., supra, 190 Cal.App.4th at pp. 1121, 1123.)
Nor are we persuaded by mother’s argument that the
juvenile court abused its discretion by failing to order more than
the two weekly unsupervised visits. The court recognized that
M.J. is very close to her mother and wishes to spend more time
with her, but it took a “wait and see” approach given the
circumstances that led to the dependency and mother’s lack of
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progress in her case plan. The court explained: “So the issue is
really whether Mother should have any kind of ability to exercise
more authority and control over [M.J.] And I don’t believe that
she’s demonstrated enough progress in this case to support that
because I . . . strongly believe we would be close to where we
started when this case began if I were to give her that kind of
authority and control.”
The juvenile court also found that father “seems completely
capable of making the appropriate decisions. He’s not cutting
Mom off. He’s willing to listen, but ultimately the decision is his.
And . . . I think that’s in [M.J.’s] best interest right now.” Under
the circumstances, mother has not demonstrated an abuse of
judicial discretion.
DISPOSITION
The visitation orders are affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tiffany N. North, County Counsel, and Joseph J. Randazzo,
Assistant County Counsel, for Plaintiff and Respondent.
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