In re B.W. CA4/1 ( 2023 )

Filed 5/18/23 In re B.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 B.W. et al., Persons Coming
Under the Juvenile Court Law.
D081308
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J521119A-B)
Plaintiff and Respondent,
v.
BRANDEE B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Browder A. Willis III, Judge. Affirmed.
Mansi Thakkar, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel and Eliza Molk, Deputy County Counsel, for Plaintiff and
Respondent.
Brandee B. (Mother) appeals the juvenile court’s order modifying her
visits to her three-year-old and one-year-old daughters (the children)
claiming she received no prior notice the court was considering modifying her
visitation or any meaningful opportunity to challenge the modification. She
also asserts the San Diego County Health and Human Services Agency
(Agency) was required to file a Welfare and Institutions Code section 388
petition to request the modification.1 The Agency asserts Mother forfeited
both contentions by failing to raise an objection in the juvenile court. Finding
Mother forfeited her claims on appeal, we affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND2
In early August 2022,3 the Los Angeles County Department of
Children and Family Services (Department) filed petitions on behalf of the
children alleging their health and safety were at risk due to concerns
regarding Mother’s mental health. (§ 300, subd. (b)(1).) Mother lived in
Palmdale, at the northern end of the county. The juvenile court in Los
Angeles County authorized their removal and the Department placed them
with their father, T.W. (Father), who lived in San Diego. At the detention
hearing, the court appointed counsel for the parents and the children, made
prima facie findings on the petitions, and detained the children with Father.
It ordered services for the parents and supervised visits for Mother a
1 All statutory references are to the Welfare and Institutions Code.
2 Because Mother’s sole contention on appeal relates to modification of
visitation, we limit our discussion of the facts and procedural history to
information necessary to determine that issue.
3 All undesignated date references are to 2022.
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minimum of three days per week for three hours per visit “as long as the
Department can ensure the health and safety of all parties . . . [otherwise]
visitation [would] be by any electronic means available.”
In mid-August, the Department filed amended petitions to include
allegations about Father. The parents denied the allegations in the amended
petitions and the juvenile court set the matter for trial. In its jurisdiction-
disposition report, the Department recommended that Father and the
maternal grandmother not supervise Mother's visits. Because Father lived in
the paternal grandmother’s home in San Diego and did not plan to relocate,
the Department moved to transfer the case to San Diego County.
At the contested jurisdiction-disposition hearing in September, the
juvenile court struck one allegation related to Father and then sustained the
petitions. It continued Mother’s supervised visits for a minimum of nine
hours per week with discretion to liberalize, disallowed Father from
supervising or being present during visits, allowed telephone visits, and
ordered a written visitation schedule. In October, the court transferred the
case to San Diego County, authorized the maternal grandmother to supervise
Mother’s visits, and ordered the parents to report to the San Diego
Courthouse for the next hearing.
At the initial hearing in San Diego County in late October, the juvenile
court preliminarily accepted the transfer, appointed counsel for the parents
and children, noted that Mother’s prior visitation order remained in effect,
and continued the matter to allow minor’s counsel to meet with the children.
The court informed Mother that she and her attorney could discuss the
details of her visitation with the new social worker. At the next hearing in
mid-November, Mother’s counsel claimed that Mother had not seen the
children since the case transferred from Los Angeles to San Diego.
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Father stated that visits were “fine” and suggested overnight visits on
the weekends. The court declined to order overnight visits based on
insufficient knowledge of the case but gave the Agency discretion to expand
visitation. It ordered Mother’s visits occur “at least halfway” to Mother’s
location or at a place mutually agreed upon by the parents. The court noted
that if in-person visits were problematic, video visits should occur, and
directed Mother to keep a log of any missed visits. The court again continued
the matter because a social worker had not yet been assigned to the case.
The Agency filed no formal request to modify visitation. But its
acceptance of transfer report filed on November 23 recommended that
visitation be modified to include: (1) two supervised in-person visits a month
for Mother in San Diego; (2) daily video visits; (3) that Father not supervise
the visits; and (4) funding for Mother’s travel to San Diego. Father reported
that Mother had daily visits with the children and it was “a struggle” for him
to drive halfway to meet Mother because the youngest child gets carsick
during the drive. The Agency stated that given the distance between
children and Mother, nine hours of weekly visitation was “not realistic or
feasible,” particularly given the need for third-party supervision.
Perhaps because visitation had been discussed at the October hearing,
at the continued hearing in late November everyone seems to have assumed
the juvenile court would consider modifying the visitation schedule. The
court began the hearing by noting the Agency’s recommendation regarding
Mother’s visits. The Agency requested that the court make the Agency’s
recommendations the court’s order, stating:
“Specifically, one requesting that the court authorize
funding for the mother to travel to San Diego to visit the
children. I believe previously they were meeting at a
halfway point to execute visitation between the children
and their mom. Allowing those funds to allow mom travel
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to San Diego, gives the Agency a little bit more flexibility in
terms of being able to provide more frequent visits to the
Mother, as ordered by the court.”
The children’s counsel submitted upon the Agency’s recommendations,
stating it made more sense for Mother to travel to San Diego for visits rather
than “two children to be in a car for a long time.”
Mother’s counsel made no objection to the court considering the
visitation schedule. Instead, he acknowledged the Agency’s request for bi-
weekly visitation, but argued for weekly in-person visits and daily video
visits. Counsel added that despite the young age of the children, “[t]here has
to be times you give the mother a break and bring the children to the mother
and have a visit in the mother’s realm.” He closed his argument by
requesting, at a minimum, weekly visitation in San Diego or where Mother
lived.
Father’s counsel stated that transportation for Father was an issue and
echoed the need for funds to facilitate Mother’s visits. Minor’s counsel had no
opposition to weekly visits in San Diego but did not “want to overwhelm the
girls too much and take away from any services or anything else . . . .” The
social worker then addressed the court, expressing concern that no record
existed of the services Mother had participated in, a psychological evaluation
was not on file, and she had not yet spoken to Mother’s therapist to
determine whether Mother was taking her medication. Despite these
concerns, the social worker was willing to consider weekly visits in San
Diego.
The court accepted the transfer from Los Angeles for all purposes,
confirmed two in-person visits a month, daily video visits, and gave the
Agency discretion to expand those visits “as the situation is assessed.” It
authorized funding to assist with Mother’s transportation and directed
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Mother to speak to her counsel about signing a release of information
regarding Mother’s progress and programing because the Agency could not
expand Mother’s visits without this information. After Mother inquired
about returning the children to her care, the court responded that it had
“confirmed and affirmed” the findings and orders from the Los Angeles
juvenile court and “[a]ll prior orders not in conflict remain in full force and
effect. . . .”
DISCUSSION
Mother contends the juvenile court violated her due process rights by
modifying the visitation order based on the Agency’s request, without any
prior notice to her that it was considering making such modification or
providing her any meaningful opportunity to challenge the modification. She
also claims the Agency was required to file a section 388 petition to request
the modification. The Agency contends Mother forfeited her due process
claims and argument that the Agency was required to file a section 388
petition by not raising these issues in the juvenile court. Mother argues in
her reply brief that forfeiture does not exist on this record. Even assuming
forfeiture, she contends we retain discretion to consider her claims.
“[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
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.) The purpose of the
forfeiture rule is to encourage parties to bring errors to the trial court’s
attention so they can be corrected. (In re S.B., at p. 1293.) A second purpose
is to create a record that permits review of the trial court’s ruling to
determine if it was erroneous. (In re A.E. (2008) 168 Cal.App.4th 1, 5.)
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The forfeiture rule has been applied to claims of defective notice in
dependency proceedings. (In re B.G. (1974) 11 Cal.3d 679, 689 [absence of
notice of jurisdictional hearing in violation of mother’s due process rights was
forfeited on appeal where mother appeared with counsel at subsequent
hearings and failed to raise the issue]; Marlene M. v. Superior Court (2000)
80 Cal.App.4th 1139, 1149 [mother’s failure to object to proceeding with
dispositional hearing waived defective notice claim on appeal].) “ ‘[E]ven
constitutional rights, including those of a minor in the area of juvenile court
procedure, will ordinarily be waived by silence, i.e., by their nonassertion.’ ”
(In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344; Kevin R. v. Superior
Court (2010) 191 Cal.App.4th 676, 685–686 [due process challenge forfeited
because visitation issue not raised before juvenile court].)
Here, Mother appeared telephonically at the hearing with counsel and
spoke with counsel regarding visitation before the hearing. At the start of
the hearing, the court noted the Agency’s recommended change to the
existing visitation order before hearing from counsel. Mother never claimed
the Agency was required to file a section 388 petition before the juvenile
court could modify the Los Angeles court’s visitation order or complained
about a violation of her due process rights.4 Rather, counsel noted the
requested narrowing of Mother’s visitation from what the Los Angeles
juvenile court had ordered, acknowledged the Agency’s recommendation for
bi-weekly visits, and instead requested weekly in-person visits and daily
video visits.
4 As Mother acknowledged in her opening brief, a juvenile court’s order
can be modified sua sponte by the court under section 385 upon providing the
parties with notice and an opportunity to be heard. (Nickolas F. v. Superior
Court (2006) 144 Cal.App.4th 92, 98, 116.)
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At no point did Mother object based on surprise, lack of notice or
opportunity to be heard. Although the social worker appeared at the hearing
and spoke regarding the Agency’s recommended change to the existing
visitation schedule, Mother’s counsel did not request to cross-examine the
social worker, express a need to call any witnesses, or claim he was
unprepared to argue visitation. Instead, Mother fully participated in the
hearing with her counsel, addressing the Agency’s recommended change to
her visitation schedule on its merits. A timely objection would have allowed
the juvenile court to remedy any perceived error by taking a break in the
hearing or granting a short continuance if Mother required more time to
prepare a response or produce evidence. On this record, Mother forfeited her
procedural challenges to modification of the visitation order.
Of course we understand we have the ability to consider Mother’s claim
despite her forfeiture, but there is no basis to do so here. Our Supreme Court
described the limited exception in dependency appeals to the forfeiture rule:
“[T]he appellate court’s discretion to excuse forfeiture should be exercised
rarely and only in cases presenting an important legal issue. [Citations.]
Although an appellate court’s discretion to consider forfeited claims extends
to dependency cases [citations], the discretion must be exercised with special
care in such matters.” (In re S.B., supra, 32 Cal.4th at p. 1293.)
The visitation issue was not a complicated one. The parties all acted as
though it was properly before the court in November, perhaps because it had
been previewed at the October hearing. Mother’s argument presents no
important legal issue that would justify our disregarding her failure to alert
the court to any concerns she had with the procedures being employed.
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DISPOSITION
The juvenile court’s visitation order is affirmed.
DATO, J.
WE CONCUR:
O'ROURKE, Acting P. J.
BUCHANAN, J.
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