In re D.M. CA2/1 ( 2020 )

Filed 11/19/20 In re D.M. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re D.M. et al., Persons Coming B304508
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP04357)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
V.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Martha A. Matthews, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Sarah Vesecky, Deputy County Counsel, for
Plaintiff and Respondent.
____________________
V.M. (mother) appeals from the juvenile court’s denial
without hearing of her petitions under Welfare and Institutions
Code1 section 388. Mother argues the petitions provided an
opportunity for the juvenile court to correct problems with its
visitation orders regarding her daughter D.M. and son M.B., and
it was an abuse of discretion not to do so.
We conclude mother has forfeited her argument by not
raising it below. Mother’s section 388 petitions did not refer to
problems with the visitation orders, or to visitation at all, and
were instead based on mother’s continued progress in court-
ordered services and the fact that the juvenile court had recently
returned the children’s infant sibling to her care.
Accordingly, we affirm the orders, without foreclosing
mother from raising the visitation issues with the juvenile court
through an appropriate petition or proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our summary of the factual and procedural history
to the information relevant to the instant appeal.
1. Detention, adjudication, and disposition
On July 12, 2018, respondent Los Angeles County
Department of Children and Family Services (DCFS) filed a
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
petition under section 300 seeking to detain 12-year-old D.M. and
10-year-old M.B. from mother and father Ma.B. (father). The
petition alleged five counts based on mother’s and father’s
substance abuse and domestic violence between mother and
father.
On November 8, 2018, the juvenile court sustained all
counts in the petition with amendments not relevant to this
appeal.
At the dispositional hearing on November 26, 2018, the
juvenile court granted reunification services to mother, but not
father. At the request of children’s counsel, the juvenile court
issued a three-year restraining order against mother prohibiting
her from contacting or coming with 100 yards of the children or
their caregivers, although mother was permitted one 2-hour visit
per week with the children “in the DCFS office or therapeutic
setting only.” The juvenile court denied father visitation, but
declined to issue a restraining order against him because he was
incarcerated.
Father appealed the dispositional orders denying him
reunification services and visitation. We affirmed the orders in
an unpublished decision. Mother did not appeal.
2. First review period
In a last minute information filed March 18, 2019, DCFS
reported that maternal grandmother, with whom the children
had been placed, was experiencing mental health issues, and
DCFS was evaluating alternative placements with a maternal
aunt or maternal uncle. DCFS also reported that D.M. was
refusing to speak with mother, whereas M.B. stated he was “open
to starting off slowly with seeing his mother only for monitored
visitation once a week on Saturdays for 2-3 hours.”
3
A last minute information filed April 22, 2019 indicated the
children were now placed with maternal uncle D.P., and the
children stated they wished to stay with him.
At a hearing that same day, children’s counsel stated that
the children wanted to begin having some contact with mother,
and children’s counsel requested that it be in a therapeutic
setting. The juvenile court asked what the current visitation
order was, and children’s counsel stated, “There are no visits at
this point.” The court ordered DCFS to ensure the children were
in therapy and to commence monitored visits with mother in a
therapeutic setting as soon as possible.
In a status review report filed May 3, 2019, DCFS reported
that mother had partially complied with her case plan, but had
not completed drug treatment and had not begun visitation with
the children, “because the children did not want to have visits
with mother during this review period.” Mother “has expressed
on several occasions that she wants to have visits with the
children[,] however she is waiting for them to be . . . ready to
have visits with her.” In March the children told the social
worker they did not want to have contact with mother, but in
April they expressed a desire to meet once with mother to tell her
how she had made them feel and to ask her questions. Maternal
uncle similarly stated that the children both had expressed that
they wanted to meet with mother to tell her how she had hurt
them.
Both children told the social worker that they did not want
to reunify with mother. Mother wished to complete her court
ordered services so she could reunify with the children.
4
Mother did not appear for four drug tests in December 2018
and January 2019. She appeared for and tested negative in
five subsequent tests from February through mid-April 2019.
Mother reported that she was pregnant and due to give
birth in June 2019.
In a last minute information filed May 28, 2019, the day of
the status review hearing, DCFS reported that, according to the
children, they had been having monitored telephone calls with
mother. Maternal uncle reported that mother called the children
frequently, but the children, and especially D.M., did not want to
speak with her sometimes.
DCFS reported that the children were being assessed by a
therapist from the Specialized Foster Care Program, Brenda S.,
who had been seeing them on a weekly basis and would continue
to do so until they were linked with a mental health provider
closer to where the children were placed with maternal uncle.
Brenda S. stated that the children told her they wished to visit
with mother to talk about how she made them feel. Brenda S.
said the visits would have to be in a therapeutic setting because
the children “appear to have a lot of anger and frustration as to
their parents.” DCFS stated that children and mother would
begin monitored visits “once the children are linked to a mental
health provider and the therapist has made this
recommendation.”
3. First review hearing
At the status review hearing on May 28, 2019, the juvenile
court ordered continued services for mother. Children’s counsel
stated that M.B. wanted a visit with mother, and requested that
DCFS work with mother to arrange a monitored visit with M.B.
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at a DCFS office. D.M., however, was not ready for a visit with
mother.
The court expressed concern that, although DCFS initiated
the process to get the children into therapy a year earlier, the
children had yet to begin therapy. Children’s counsel agreed that
“it didn’t happen” and “the ball got dropped.” The juvenile court
ordered that DCFS get the children into therapy and, once that
relationship was established, work with the therapist and with
mother to have contact between mother and the children, either
in person or by telephone or videoconference. The court stated,
“I understand the children are reluctant to have contact with
their mother, which is kind of understandable, given everything
they’ve been through, but it can be really important to have
whatever reconciliation take place with the aid of a therapist.”
4. Second review period
In a status review report filed July 1, 2019, DCFS reported
that mother was in partial compliance with her case plan, and
had completed a parenting class and was drug testing. She had
not completed a drug treatment program, individual therapy, or
domestic violence class, and had not begun monitored visitation
with the children. Mother continued to test negative in four tests
from April through early June 2019.
Mother gave birth to a boy in June 2019. DCFS had
received a referral regarding the child after mother refused to
talk to the hospital social worker, and the referring party learned
that mother’s other children were in dependency proceedings.
DCFS was following up on the referral.
D.M. stated that she did not trust mother or wish to reunify
with her, and wanted to meet with her only once to tell her how
she felt. M.B. similarly stated he wished to meet with mother
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once to tell her how he felt, but did not want to reunify with her.
He shared with the DCFS social worker “a lot of recollections of
neglect . . . when he was with his mother such as mother leaving
him and his sister in a shed when it was really hot.” Both
children stated they wanted maternal uncle to adopt them.
Therapist Brenda S. continued to recommend that any
visits be in a therapeutic setting “in order to provide emotional
support and attempt to de-escalate[ ] dysregulated emotions
immediately.” Brenda S. said M.B. “has a lot to say about the
neglect that he en[d]ured with mother.”
Both children had been linked with mental health services
in Ontario. D.M. had her first therapy session on June 26, 2019,
and M.B.’s first session was scheduled for July 1, 2019.
Because mother was only in partial compliance with her
case plan, and had yet to begin individual therapy, drug
treatment, or a domestic violence program, DCFS recommended
the juvenile court terminate reunification services.
In a last minute information filed July 26, 2019, DCFS
reported D.M.’s therapist did not have the facilities for visits with
mother in a therapeutic setting, and recommended family
therapy instead, “due to the trauma that the child has disclosed.”
The therapist said those sessions could begin “once the therapists
developed a therapeutic plan with the child and the child is ready
to start family therapy.” DCFS reported that family therapy
would begin “once deemed appropriate by the children’s
therapists.” (Italics omitted.) M.B.’s therapist also recommended
that meetings with mother “occur in a family therapeutic
setting.”
Mother informed DCFS that she was on the waitlist for
mental health services and had enrolled in a domestic violence
7
program, the latter of which DCFS confirmed by telephone with
the facilitator of the program.
On July 26, 2019, the juvenile court continued the status
review hearing. The court stated that there was “a substantial
possibility” that it would terminate reunification services as
recommended by DCFS because “it honestly doesn’t seem like the
relationship between these children and their mother can be
repaired at this point.” The court acknowledged, however, that
mother’s having recently given birth impeded her ability to make
progress on her case plan, and that the previously ordered visits
in a therapeutic setting had yet to occur.
The juvenile court ordered DCFS to work with the
children’s therapists to arrange at least two sessions of family
therapy, and to provide a report on the sessions. The court stated
that the “critical issue is where everyone is after they’ve actually
had an opportunity to participate in therapy together.”
In early August 2019, DCFS initiated proceedings to detain
mother’s newborn son, M.M. The detention report described an
incident in early July 2019 in which mother got into a dispute
with the manager of her transitional housing complex. Mother
pushed the manager to the ground and pulled her hair while
mother’s boyfriend punched her.
In a last minute information filed August 28, 2019, DCFS
reported that it had consulted with the children’s therapists
regarding the juvenile court’s order of two sessions of family
therapy. Both therapists had recommended against family
therapy; D.M.’s therapist said she was still working with D.M. to
“process her trauma,” and M.B.’s therapist wanted more time to
“prepare him for family therapy.”
8
At the therapists’ suggestion, the DCFS social worker held
a child and family teaming meeting attended by mother, the
children, their therapists, maternal uncle, and a maternal aunt
and maternal cousin. “[I]deas that were brainstorm[ed] in order
to meet the family needs” included that the children continue to
attend therapy “to process their feelings and . . . past trauma,”
that they have monitored phone calls with mother twice a week,
and that mother continue to attend her court ordered services
“and to apply what has been learned during phone calls in order
to be able to reunify with her children.”
Maternal uncle reported that mother had unmonitored
communication with the children through social media. Mother
also had texted maternal uncle and accused him of wanting to
take her children away from her. Maternal uncle was worried
that mother was going to retaliate against him in some way.
Mother did not appear for a drug test in August, and
informed DCFS it was because her drug testing referral had
expired. DCFS submitted a new referral. Mother tested negative
on her three subsequent tests, through early August.
Mother reported that a drug treatment facility had
informed her she did not qualify for services, but was assessing
whether it could provide aftercare to mother. Mother also
reported she was attending Narcotics Anonymous meetings and
her domestic violence course. Mother said she was still on the
waitlist for mental health services. DCFS continued to
recommend termination of reunification services.
9
5. Second review hearing
The juvenile court held a hearing on August 28, 2019.
First, it adjudicated baby M.M.’s section 300 petition, sustaining
allegations regarding mother’s and father’s substance abuse.2
The juvenile court then heard argument as to whether to
terminate mother’s reunification services in regard to D.M. and
M.B. Mother’s counsel noted mother’s case plan progress and the
obstacles she faced in making that progress, including recently
giving birth and having been incarcerated at the beginning of the
proceedings. Mother’s counsel also raised the issue that, “given
ample attempts to start visits in a therapeutic setting,” those
visits had not taken place, although mother had maintained
telephone contact and tried to have videoconferences with the
children. Mother’s counsel requested more time for mother to
complete services and have at least one visit in a therapeutic
setting.
The juvenile court stated that “mother has completed quite
a bit of her case plan and is testing negative, and this is one of
those cases [in] which the Courts of Appeal have warned the trial
courts that a child’s reluctance to visit or therapists not
recommending visits or conjoint counseling should not be allowed
to sabotage reunification . . . .” The court asked DCFS to address
this in its argument.
DCFS counsel responded that the lack of visitation was not
the sole basis for the recommendation to terminate services.
Counsel argued that mother’s case progress was very recent, and
2 The juvenile court found that father was M.M.’s alleged
father, pending a paternity test or voluntary declaration of
parentage.
10
she continued to display aggressive behavior as demonstrated by
the incident with the transitional housing manager the previous
month.3
Children’s counsel similarly argued that mother’s case
progress was recent, and that the therapists’ recommendation
that the children were not ready for family therapy was
“indicative of the amount of trauma that they went through.”
The juvenile court then ruled that it had no basis to
continue reunification services given mother’s long delay in
beginning her programs, and particularly a domestic violence
program. The court praised mother for her progress but
nonetheless terminated further services in regard to D.M. and
M.B. The court set a section 366.26 permanency planning
hearing for December 2019.
The juvenile court declined to order further visitation
“unless and until the children’s therapists indicate that visitation
would be helpful to them. I think they just need time at this
point and shouldn’t be pressured to visit.” Children’s counsel
noted M.B. wanted one visit with mother, perhaps at a DCFS
office, and the court stated, “That’s fine. Any visits that the
children’s therapists believe would be appropriate, [DCFS] is to
work with mother to set up. I just don’t want the children to be
pressured to do ongoing visitation given . . . that hasn’t been
working out that well.” The court noted mother’s objection to
termination of services and denial of further visitation.
The record does not indicate that mother sought appellate
review of the juvenile court’s August 28, 2019 orders.
3 The detention report detailing the attack on the
transitional housing manager was admitted into evidence at the
August 28, 2019 hearing.
11
6. Mother’s section 388 petitions
DCFS filed a section 366.26 report on November 25, 2019.
The children were continuing to see their therapists. They had
not visited with mother, and stated they did not wish to do so.
Mother reached out to them via social media, but they ignored
her, and they did not write back in response to birthday cards she
sent them.
DCFS recommended adoption by maternal uncle as the
permanent plan. Because of an unresolved criminal charge in
Texas against maternal uncle’s girlfriend, however, DCFS
had not obtained a resource family approval assessment of
maternal uncle’s home.4 DCFS recommended a 120-day
continuance for the home assessment matter to be resolved.
On December 16, 2019, pursuant to section 388, mother
filed two JV-180 forms requesting the juvenile court change its
orders terminating mother’s reunification services as to D.M. and
M.B. On the forms, mother stated, “Mother has been consistently
testing negative for all substances since August 2019 . . . , and
Mother has finished eight (8) sessions of Domestic Violence
Classes . . . . In addition, the court returned the [children’s]
half sibling, [M.M.], to the custody of the Mother on
December 10th, 2019 . . . .” Mother requested that the juvenile
court reinstate reunification services and take the section 366.26
hearing off calendar.
4 The girlfriend was arrested in Texas in 2018 on a
marijuana charge, but Texas law enforcement had taken no
further action. The girlfriend had hired an attorney and was
attempting to clear her record in Texas with evidence that she
had multiple sclerosis and the marijuana was for medicinal
purposes.
12
As for why the change of order would be in the children’s
best interest, mother stated that she was “the [children’s]
biological mother, a parent is the most permanent plan for a
child[,] and [the children] should have an opportunity to foster a
relationship with the half sibling, [M.M.], since [M.M.] is
flourishing well in the custody of the Mother and sibling
relationships are intrinsically significant.”
Mother attached documentation showing negative drug
tests from August through November 2019, a notification of
participation in programming, and a December 10, 2019, minute
order indicating the juvenile court placed M.M. with mother on
condition that mother reside with maternal grandmother and
continue her progress with her case plan.
At a hearing on December 19, 2019, the juvenile court
granted DCFS’s requested continuance for the home assessment,
and asked for argument as to whether to set an evidentiary
hearing on mother’s section 388 petitions. Children’s counsel
argued that D.M. and M.B. were “differently situated” than
infant M.M. in that they did not want to reunify or visit with
mother, and were stable in their current placement. Children’s
counsel contended that it would not be in their best interest to
reinstate the reunification process. DCFS counsel agreed.
The juvenile court stated that it was inclined to deny the
section 388 petitions without a hearing, because “sometimes so
much has happened to a child that it would actually harm the
child for there to be any question about what is going to happen
in the future, and these children have finally found stability with
their uncle.” The court noted that “as recently as August of this
year, the children’s therapists were still staying the children
were too fragile” for therapy sessions with mother. The court
13
further noted the evidence that mother was sending hostile text
messages to maternal uncle.
Mother’s counsel argued mother had shown changed
circumstances, and establishing a bond with M.M. was in the
older children’s best interest. The juvenile court agreed mother
“would be able to make a showing of changed circumstances,” but
that nonetheless it would not be in the older children’s best
interest to reopen the case in the manner mother requested.
The juvenile court denied the section 388 petitions without
an evidentiary hearing. Mother timely appealed.
APPLICABLE LAW AND STANDARD OF REVIEW
Under section 388, subdivision (a)(1), a parent of “a
dependent child of the juvenile court” may, “upon grounds of
change of circumstance or new evidence,” petition
the juvenile court “for a hearing to change, modify, or set aside
any order of court previously made . . . .” The juvenile court must
hold the hearing “[i]f it appears that the best interests of the
child . . . may be promoted by the proposed change of order . . . .”
(Id., subd. (d).)
“A petition for modification must be liberally construed in
favor of its sufficiency.” (Cal. Rules of Court, rule 5.570(a).)
However, the juvenile court may deny a section 388 petition
without a hearing if the petition “fails to state a change of
circumstance or new evidence that may require a change of order
or termination of jurisdiction or fails to show that the requested
modification would promote the best interest of the child . . . .”
(Cal. Rules of Court, rule 5.570(d)(1).)
We review the juvenile court’s decision to deny
a section 388 petition without a hearing for abuse of discretion.
(In re G.B. (2014) 227 Cal. App. 4th 1147, 1158.)
14
DISCUSSION
Mother’s argument on appeal is based on what she
contends is the juvenile court’s failure to ensure she received
adequate visitation during the reunification period, and the
juvenile court’s “inappropriate delegation of authority” to the
children’s therapists to determine whether to grant visitation
following termination of services. Mother catalogues the
instances summarized above in which the juvenile court ordered
in-person visitation or family therapy throughout the
proceedings, none of which occurred. Mother asserts that her
section 388 petitions provided an opportunity for the juvenile
court to remedy the lack of visitation, and it was an abuse of
discretion not to do so.
Generally speaking, a juvenile court ordering reunification
services must provide for visitation between the parent and child
“as frequent[ly] as possible, consistent with the well-being of the
child.” (§ 362.1, subd. (a)(1)(A).) Even after termination of
services, the juvenile court “shall continue to permit the parent or
legal guardian to visit the child pending the hearing unless it
finds that visitation would be detrimental to the child.”
(§ 366.21, subd. (h).) “The power to determine the right and
extent of visitation by a noncustodial parent in a dependency case
resides with the court and may not be delegated to nonjudicial
officials or private parties.” (In re T.H. (2010) 190 Cal. App. 4th
1119, 1123.)
We need not decide whether the juvenile court’s visitation
orders or the manner in which it enforced them was proper,
because mother has forfeited those arguments by failing to raise
them below. Her section 388 petitions said nothing about
problems with visitation or the need for the juvenile court to
15
remedy any such problems. Instead, her petitions were based on
her negative drug tests, continued progress in her case plan, and
the fact that the juvenile court had placed M.M. in her care six
days earlier. When arguing in favor of an evidentiary hearing on
the petitions, mother’s counsel similarly emphasized mother’s
changed circumstances, without referencing visitation. Nothing
in the petitions or in the argument of counsel concerning the
petitions mentioned visitation at all, much less particular
problems with the substance or enforcement of visitation orders.
Because the petitions did not raise the issue of visitation,
the juvenile court was denied the opportunity to address the
arguments mother makes in this appeal. Those arguments
therefore are forfeited. (In re A.B. (2014) 225 Cal. App. 4th 1358,
1366 [“ ‘As a general rule, a party is precluded from urging on
appeal any point not raised in the trial court.’ ”].) A court does
not abuse its discretion by failing to address a problem that has
not been brought to its attention. (Ibid. [“ ‘A party on appeal
cannot successfully complain because the trial court failed to do
something which it was not asked to do . . . .’ ”].)
Mother argues that the juvenile court was well-aware of
the problems with visitation, as indicated by its discussions
with counsel on the subject throughout the proceedings. The
juvenile court’s general awareness of issues with visitation
does not impose upon it a duty to infer that its visitation orders
are the subject of a section 388 petition that does not mention
those orders.
Mother relies on In re Hunter S. (2006) 142 Cal. App. 4th
1497 (Hunter S.), but it is inapposite. In Hunter S., the mother
filed a section 388 petition asking the juvenile court to vacate the
permanency planning hearing and reinstate reunification
16
services “to allow her to actually partake of visitation she had
been granted but never received.” (Id. at p. 1506, fn. 5.) The
juvenile court denied the petition as not being in the best interest
of the child, given a lack of contact or current bond between
mother and child. (Id. at pp. 1503–1504, 1507.)
Our colleagues in Division Eight reversed. (Hunter S.,
supra, 142 Cal.App.4th at p. 1500.) The appellate court
concluded that the juvenile court had failed to enforce its
visitation order by leaving it to the child and the child’s therapist
to decide whether visitation would occur, which as a practical
matter resulted in no visitation at all. (Id. at p. 1505.) Having
failed to ensure visitation occurred, the juvenile court abused its
discretion by denying the section 388 petition on the basis that
the mother had not had sufficient contact with the child. (Id. at
p. 1507.)
Hunter S. involved a section 388 petition that “brought to
the court’s attention” the “failure to enforce the [visitation]
order.” (Hunter S., supra, 142 Cal.App.4th at p. 1506.) In other
words, the petition squarely placed the issue of visitation before
the juvenile court. Forfeiture, therefore, was not an issue, as it is
in this case. Accordingly, Hunter S. is not instructive. We
express no opinion as to the applicability of Hunter S. absent
mother’s forfeiture.
Mother suggests that visitation issues are intrinsic in the
“best interest” analysis of a section 388 petition, because “the
best interests of the children involve visitation with their parent
unless it is detrimental to their wellbeing.” Mother contends
statements by the juvenile court establish it also believed in-
person contact between mother and the children was in the
children’s best interest. Regardless, it was incumbent on mother
17
expressly to bring the issue of visitation to the juvenile court’s
attention in her section 388 petitions. Because she did not do so,
the juvenile court did not abuse its discretion in failing sua
sponte to raise that issue as part of its “best interest” analysis.
Mother raises no other arguments to challenge the juvenile
court’s denial of her section 388 petitions. We therefore have no
basis to reverse. (In re J.F. (2019) 39 Cal. App. 5th 70, 79 [“The
juvenile court’s orders are ‘presumed to be correct, and it is
appellant’s burden to affirmatively show error.’ ”].) In so holding,
we do not foreclose mother from raising the issue of visitation
with the juvenile court through an appropriate petition or
proceeding. We express no opinion as to how the juvenile court
should rule if mother does so.
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DISPOSITION
The orders denying mother’s section 388 petitions are
affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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