In re K.A. CA2/2 ( 2024 )

Filed 9/3/24 In re K.A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re K.A., a Person Coming B326025
Under the Juvenile Court Law. (c/w B329769)
(Los Angeles County
Super. Ct.
No. 21CCJP03374A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff,
v.
G.A.,
Respondent;
E.C.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
John P. McCurley, under appointment by the Court of
Appeal, for Respondent.
No appearance for Plaintiff.
______________________________
Defendant and appellant E.C. (mother) challenges the
juvenile custody order (exit order) issued by the juvenile court
upon termination of dependency jurisdiction over her daughter,
K.A. (minor, born Mar. 2014). (Welf. & Inst. Code, § 362.4.)1
Mother contends that the court abused its discretion by only
providing her a minimum of one in-person day visit with minor
per year. We affirm.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
BACKGROUND2
I. Referral and Investigation
Prior to the initiation of these dependency proceedings,
mother and respondent G.A. (father) shared joint legal custody of
minor pursuant to a family law order. (In re K.A., supra,
B316357.) Mother had physical custody of minor, with father
having overnight visits every other weekend. (Ibid.)
“In June 2021, DCFS received a referral alleging that
minor was visiting her maternal aunt (aunt) in Kentucky when
the child disclosed that, in May 2021, father had touched her
vaginal area under her clothing while they slept in the same
bed.” (In re K.A., supra, B316357.)
During the ensuing investigation, aunt told a DCFS social
worker that mother had recently moved to New Mexico with her
boyfriend, leaving minor under the care of the maternal
grandmother (maternal grandmother). (In re K.A., supra,
B316357.) Aunt brought minor to a doctor in Kentucky, who
diagnosed her with vulvovaginitis. (Ibid.) Minor alleged that
father had touched her vaginal area, which father denied. (Ibid.)
The Los Angeles Police Department had closed its investigation
into the allegations of sexual abuse because of insufficient
evidence to complete a criminal report. (Ibid.)
2 Portions of this section are drawn from our prior
unpublished opinion concerning this dependency matter. (In re
K.A. (May 16, 2023, B316357) [nonpub. opn.].) We grant mother’s
request to take judicial notice of the prior opinion. (Evid. Code,
§§ 452, subd. (d), 459.)
3
II. Exercise of Dependency Jurisdiction
On July 21, 2021, DCFS filed a dependency petition
seeking the juvenile court’s exercise of jurisdiction over minor.
(In re K.A., supra, B316357.) At the adjudication hearing on
October 27, 2021, the court sustained two counts pursuant to
section 300, subdivision (b)(1) (failure to protect), based on the
parents’ medical neglect and father’s inappropriate touching of
minor.3 (In re K.A., supra, B316357.)
“The juvenile court removed minor from the parents’
custody and ordered her suitably placed with [maternal]
grandmother. DCFS was ordered to provide reunification
services to the parents. Father was granted monitored visitation;
mother was granted unmonitored visitation with minor in
[maternal] grandmother’s home so long as [maternal]
grandmother was home.” (In re K.A., supra, B316357.)4
III. Family Reunification Period
“As of April 2022, mother continued to reside in
New Mexico. She had several video calls with minor each week.
3 The juvenile court dismissed a count in the petition brought
under section 300, subdivision (d) (sexual abuse). (In re K.A.,
supra, B316357.) The “court explained that it did not find
evidence that father touched minor for his own sexual
gratification—in other words, there was ‘no evidence of sexual
intent.’” (In re K.A., supra, B316357.)
4 Mother and father each filed a notice of appeal following
the adjudication hearing. (In re K.A., supra, B316357.) We
affirmed the juvenile court’s jurisdictional findings and
dispositional order removing minor from mother’s custody.
(Ibid.) We concluded that subsequent events had rendered moot
father’s challenge to the dispositional order removing minor from
his custody. (Ibid.)
4
Mother completed a 52-week parenting program and was
participating in individual counseling.” (In re K.A., supra,
B316357.)
“At the six-month status review hearing on April 27, 2022,
the juvenile court found that continued jurisdiction was
necessary and that returning minor to parental custody would
create a substantial risk of detriment to her. The court found by
clear and convincing evidence that the parents were not in
substantial compliance with their case plans despite DCFS
offering reasonable services and making reasonable efforts to
enable minor’s return home. The court ordered that the parents
receive further family reunification services.” (In re K.A., supra,
B316357.)5
In advance of the 12-month status review hearing, DCFS
reported that mother had moved to Kentucky at the end of
April 2022. She “maintained minimal contact with” DCFS and
“made minimal efforts in fully participating in her [c]ourt[-
]ordered case plan.” She had monitored in-person visits with
minor over the course of four days in June 2022 and almost daily
phone calls. Father’s visitation was liberalized in August 2022 to
outside of the DCFS office with the paternal grandmother
(paternal grandmother) acting as a monitor. The visits went
“very well” with no concerns. Minor expressed wanting to spend
more time with father. The next month, DCFS further
5 Father filed a notice of appeal from the juvenile court’s
findings and orders at the six-month status review hearing. (In
re K.A., supra, B316357.) That appeal was consolidated with the
parents’ appeals from the jurisdictional findings and dispositional
orders. (Ibid.) We concluded that subsequent events had
rendered moot father’s challenge to the court’s suitable
placement finding at the six-month status review hearing. (Ibid.)
5
liberalized father’s visitation, allowing him unmonitored
weekend/overnight visits with minor. DCFS identified “no
current safety threats” regarding father.
As of October 2022, DCFS had become increasingly
concerned about minor’s mental health, as she “often present[ed]
as nervous, anxiety-ridden and worried.” Throughout the
dependency case, maternal relatives maintained that minor was
terrified of father and paternal grandmother, and that being
forced to visit father had detrimentally affected her mental
health. However, numerous visitation monitors observed minor
appearing “relaxed and genuinely happy in [father’s] care.”
(Bolding omitted.) Minor reported looking forward to her visits
with father and expressed no fear. DCFS attributed minor’s
“deteriorating mental health . . . to the conflicting message she
[wa]s receiving from the maternal family and . . . [maternal
grandmother]’s manipulation of her feelings and responses.”
DCFS recommended that the juvenile court return minor to
father’s home under the condition that father and minor
participate in family preservation services.
IV. 12-Month Status Review Hearings
On October 26, 2022, at the 12-month status review
hearing (§ 366.21, subd. (f)), the juvenile court released minor to
father and set a contested hearing for the next month.
In a last minute information for the juvenile court filed on
November 8, 2022, DCFS reported that a social worker had
completed a virtual assessment of mother’s home in Kentucky
but was unable to determine whether the home was safe for
6
minor. Mother’s son—minor’s younger half-sibling (half-
sibling)—was residing with a maternal relative.6
At the contested hearing on November 15, 2022, the
juvenile court found that father’s progress had been substantial,
terminated the suitable placement order, and ordered minor to be
returned to father’s home. The court ordered DCFS to arrange
for minor to visit with mother in Kentucky over Christmas for no
more than one week.
V. Family Maintenance Period
In May 2023, DCFS reported that minor continued to do
well in father’s care. Father was consistent with family
preservation services and received positive reports from his
provider.
Mother continued to reside in Kentucky with the maternal
grandfather (maternal grandfather), mother’s boyfriend, and
mother’s infant child with her boyfriend. Mother had weekly
phone calls with minor. Minor had refused to go to Kentucky in
December 2022 for her planned trip to visit mother. The trip was
rescheduled for minor’s spring break. Prior to the rescheduled
Kentucky visit, the DCFS social worker informed mother that
maternal grandfather was not allowed to be around minor.
Mother stated that she would rent a hotel room where she would
stay with minor and that maternal grandfather would not be
there. In violation of express directives, mother allowed
maternal grandfather and her boyfriend unauthorized access to
minor during the trip.
6 Half-sibling is not a subject of these dependency
proceedings.
7
VI. Termination of Jurisdiction
During the section 364 judicial review hearing on May 16,
2023, mother asked the juvenile court to retain its jurisdiction. If
the court was inclined to terminate jurisdiction, mother
requested joint custody, with primary custody to father until
other arrangements could be made in the family court. As a
second alternative, mother requested joint legal custody, sole
physical custody to father, “and mother to confirm in advance
however much time the court thinks is reasonable for an
extended visit while she’s in California between only her and
[minor].”
The juvenile court found that the conditions that would
justify the initial assumption of jurisdiction under section 300 no
longer existed and were not likely to exist if supervision was
withdrawn. Accordingly, the court terminated its jurisdiction but
stayed the order pending receipt of an exit order.
The juvenile court explained that it wanted to “fashion
something that would give [mother] as much flexibility as
possible for visits . . . virtual, telephonic, and in person . . . in
California.” The court granted mother and father joint legal
custody of minor, with tie-breaking authority to father, and
awarded sole physical custody to father. The court ordered
monitored telephonic and virtual visits for mother with minor at
least two times per week for at least one hour. Mother was
entitled to one monitored in-person visit per year in California.
Mother’s counsel requested that “mother’s visitation orders be a
minimum.”
On May 26, 2023, the juvenile court received, signed, and
filed the exit order. The order specified that, in addition to her
twice weekly monitored virtual visits, mother was to “receive a
8
minimum of one all day monitored visit per year as arranged by
the parties.” The court lifted the stay on the termination of
jurisdiction.
VII. Appeals
Mother filed a timely notice of appeal from the orders made
at the October 26 and November 15, 2022, 12-month status
review hearings. Mother filed another timely notice of appeal
from the order terminating jurisdiction and the associated exit
order. At mother’s request, we consolidated the appeals.7
DISCUSSION
The sole issue raised by mother is whether the juvenile
court abused its discretion by issuing an exit order that provided
her a minimum of only one in-person day visit with minor per
year.8
I. Relevant Law
Section 362.4 “empowers the juvenile court, if it terminates
its jurisdiction over a dependent minor, to issue ‘an order
determining the custody of, or visitation with, the child.’ (§ 362.4,
7 DCFS filed a letter stating that, because it had not
requested the frequency of in-person visitation challenged by
mother on appeal, it was “not the proper respondent” and would
take no position on the issue. Thus, only father filed a
respondent’s brief.
8 Mother raises no arguments on appeal pertaining to the
orders made at the 12-month status review hearings or the order
terminating dependency jurisdiction. Accordingly, she has
forfeited any claim of error regarding those orders. (See Jones v.
Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have
a life of their own: if they are not raised or supported by
argument or citation to authority, we consider the issues
waived”].)
9
subd. (a).)” (In re C.W. (2019) 33 Cal.App.5th 835, 862–863.)
Such orders—“commonly referred to as ‘exit orders’” (In re
Anna T. (2020) 55 Cal.App.5th 870, 871)—“become part of any
family court proceeding concerning the same child and will
remain in effect until they are terminated or modified by the
family court. [Citation.]” (In re T.H. (2010) 190 Cal.App.4th
1119, 1123.)
In crafting exit orders, “it is the best interests of the child,
in the context of the peculiar facts of the case before the court,
which are paramount.” (In re John W. (1996) 41 Cal.App.4th 961,
965.) “Because juvenile dependency proceedings arise when
children are subject to or at risk of abuse or neglect, ‘[t]he
presumption of parental fitness that underlies custody law in the
family court just does not apply. . . . Rather the juvenile court,
which has been intimately involved in the protection of the child,
is best situated to make custody determinations based on the best
interests of the child without any preferences or presumptions.’
[Citations.]” (In re J.M. (2023) 89 Cal.App.5th 95, 112.)
II. Standard of Review
“‘[T]he juvenile court has broad discretion to make custody
[and visitation] orders when it terminates jurisdiction in a
dependency case [citation].’ [Citation.]” (In re J.M., supra,
89 Cal.App.5th at pp. 112–113.) We review an exit order for an
abuse of that discretion and may not disturb the order “‘unless
the . . . court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd
determination.’ [Citation.]” (Id. at p. 113.)
III. The Juvenile Court Did Not Abuse Its Discretion
We find no abuse of the juvenile court’s “‘broad discretion’”
(In re J.M., supra, 89 Cal.App.5th at p. 112) in issuing an exit
10
order that limited mother’s in-person visitation with minor to a
minimum of one day per year.9
Throughout the course of this dependency matter mother
elected to live out-of-state, which limited her in-person visitation
with minor. She “maintained minimal contact with” DCFS and
failed to fully participate in her case plan. When the juvenile
court authorized minor to visit mother in Kentucky, minor
refused to go on the first scheduled trip. During the rescheduled
trip a few months later, mother violated express directives from
DCFS by permitting maternal grandfather and mother’s
boyfriend to have unauthorized access to minor. This incident,
which occurred only a few weeks before the court made the exit
order, demonstrates mother’s lack of judgment and protective
capacity. The record also discloses DCFS’s concerns about
minor’s mental health.
Given the totality of these circumstances, the juvenile court
could very reasonably conclude that setting mother’s in-person
visitation to a minimum of one day visit per year was in minor’s
best interests. This, of course, was in addition to mother’s
9 In his respondent’s brief, father contends that mother
forfeited her argument regarding the frequency of in-person
visitation by failing to specifically ask the juvenile court for
additional visits. (See In re Dakota H. (2005) 132 Cal.App.4th
212, 221 [“A party forfeits the right to claim error as grounds for
reversal on appeal when he or she fails to raise the objection in
the [juvenile] court”].) Mother disagrees, pointing to her
counsel’s request below for an “‘extended visit’” to take place in
California. (Italics omitted.) We need not delve into the level of
specificity required to preserve an argument for appellate review.
We have discretion to excuse forfeiture (In re H.D. (2024)
99 Cal.App.5th 814, 817–818) and, in any event, conclude that
the court did not abuse its discretion.
11
entitlement to twice weekly virtual visitation with minor. As
mother lived across the country from minor and had shown that
she could maintain consistent telephonic contact, it was
reasonable for the court to grant more frequent virtual rather
than in-person visits. There is nothing “‘arbitrary, capricious, or
patently absurd’” about such a determination. (In re J.M., supra,
89 Cal.App.5th at p. 113.)
Mother resists this conclusion with several arguments.
First, mother asserts that previous in-person visits had
gone well, with minor being excited to see mother and happy in
her presence. While this evidence supports the juvenile court’s
implied finding that some visitation with mother (in the form of
twice weekly virtual visits and a minimum of once-yearly in-
person visits) was in minor’s best interests, it does not
demonstrate that the court abused its discretion by putting
reasonable limits on that visitation.
Second, mother contends that more in-person visitation
with mother would foster contact with half-sibling, who lived
with mother in Kentucky. While that is possible, it is also
speculative that mother would actually bring half-sibling to
California to visit minor. (See Friends of Lagoon Valley v. City of
Vacaville (2007) 154 Cal.App.4th 807, 834, fn. 13 (Friends of
Lagoon Valley) [“speculation does not establish an abuse of
discretion”].) Further, the juvenile court could reasonably
conclude that any detrimental effect that the exit order had on
minor’s relationship with half-sibling was outweighed by the
potential risks to minor if mother were entitled to more frequent
in-person visitation.
Third, mother argues that “any concern that [m]other
might again bring an unauthorized individual around [minor]
12
had been mitigated” by ordering in-person visits to take place in
California and be monitored. We disagree. Mother had not
demonstrated that she could consistently follow directives set to
protect minor; thus, the juvenile court could continue to be
concerned about mother’s protective capacity during in-person
visits and limit the frequency accordingly.
Finally, mother surmises that, based on her acrimonious
relationship with father, “it is very unlikely that [f]ather would
agree to allow [m]other visits beyond the minimum.” Again,
“speculation does not establish an abuse of discretion.” (Friends
of Lagoon Valley, supra, 154 Cal.App.4th at p. 834, fn. 13.) And,
if mother believes that father is unreasonably impeding her
visitation with minor and that there has been a significant
change of circumstances since the termination of juvenile court
jurisdiction, she can petition the family court to modify the exit
order. (§ 302, subd. (d).)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
13