In re Kahlil W. CA2/7 ( 2024 )

Filed 10/1/24 In re Kahlil W. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
In re KAHLIL W., a Person B332494
Coming Under the Juvenile Court
Law. (Los Angeles County Super. Ct.
No. 19CCJP05928C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRUCE W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Marguerite D. Downing, Judge. Reversed
with directions.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Bruce W., father of four-year-old Kahlil W., appeals from
the juvenile court’s order terminating jurisdiction, awarding sole
legal and physical custody of Kahlil to Kahlil’s mother Rachel W.,
and requiring Bruce to have monitored visits with Kahlil (Welf.
& Inst. Code, § 362.4).1 Bruce does not challenge the court’s
order regarding custody, but argues the juvenile court abused its
discretion in requiring monitored visitation because substantial
evidence did not support the court’s sole factual finding that
Bruce had not completed court-ordered individual counseling.
Because substantial evidence did not support that finding, we
reverse the custody and visitation order and direct the juvenile
court to enter a new order based on the evidence.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Declares Kahlil a Dependent
Child of the Court
The Los Angeles County Department of Children and
Family Services became involved with the family after a caller
reported Kahlil’s parents had a physical altercation. Rachel was
1
Statutory references are to the Welfare and Institutions
Code.
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holding Kahlil, who was 18 months old at the time, during the
fight.
The juvenile court sustained allegations under section 300,
subdivision (b)(1), that Bruce and Rachel failed to adequately
supervise and protect Kahlil by engaging in physical altercations
in his presence. The court declared Kahlil a dependent child of
the juvenile court, removed Kahlil from both parents, and placed
him under the care and supervision of the Department for
suitable placement. The court ordered monitored visitation for
both parents.
B. Bruce Complies with Some but Not All of His Case
Plan
Bruce’s court-ordered case plan required him to take a
developmentally appropriate parenting course approved by the
Department, engage in mental health counseling, take all
prescribed psychotropic medications, and participate in
individual counseling to address domestic violence, co-parenting,
and child safety. The court did not specify a minimum number of
counseling sessions Bruce had to complete.
Bruce complied with the case plan’s education and
individual counseling requirements. Specifically, Bruce
completed a four-hour parenting skills course and an eight-hour
parent education and family stabilization course approved by the
Department. He also participated in weekly individual
counseling sessions, beginning before the court approved Bruce’s
case plan and continuing throughout the dependency
proceedings.
Bruce refused, however, to provide evidence he had
complied with the case plan’s mental health counseling
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requirement. He also admitted he was not taking his prescribed
psychotropic medication. In addition, Bruce did not visit Kahlil
regularly.
C. The Court Terminates Jurisdiction with a Custody
and Visitation Order
At the six-month review hearing under section 366.21,
subdivision (e), the court returned Kahlil to Rachel. At the next
review hearing, the court found the conditions justifying
dependency jurisdiction under section 300 no longer existed and
were not likely to exist if the court withdrew supervision. (§ 364,
subd. (c).) The court terminated jurisdiction, awarded Rachel
sole legal and physical custody of Kahlil, and ordered Bruce to
have monitored visitation with Kahlil. The court’s custody and
visitation order authorized Bruce to have monitored visits with
Kahlil for at least three hours, three times per week. The order
stated the court was ordering monitored visitation because Bruce
had not completed court-ordered individual counseling. Bruce
timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
“When terminating its jurisdiction over a child who has
been declared a dependent child of the court, section 362.4
authorizes the juvenile court to issue a custody and visitation
order (commonly referred to as an ‘exit order’) that will become
part of the relevant family law file and remain in effect in the
family law action ‘until modified or terminated by a subsequent
order.’” (In re T.S. (2020) 52 Cal.App.5th 503, 513; see § 362.4,
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subd. (a); In re Chantal S. (1996) 13 Cal.4th 196, 203; In re
Anna T. (2020) 55 Cal.App.5th 870, 871.) Such an exit order
“may not be modified by the family court ‘unless the court finds
that there has been a significant change of circumstances since
the juvenile court issued the order and modification of the order
is in the best interests of the child.’” (Anna T., at pp. 871-872; see
§ 302, subd. (d); Cal. Rules of Court, rule 5.700(a).) In making
such an order, the juvenile court must consider “the totality of
the circumstances and the children’s best interest in determining
whether jurisdiction should be terminated and in fashioning
appropriate exit orders.” (T.S., at p. 514; see In re J.M. (2023)
89 Cal.App.5th 95, 112 [in making custody and visitation orders
“‘the juvenile court must look at the best interests of the child’”].)
“‘[T]he juvenile court has broad discretion to make custody
[and visitation] orders when it terminates jurisdiction in a
dependency case.’” (In re J.M., supra, 89 Cal.App.5th at p. 112,
brackets in original; see In re N.M. (2023) 88 Cal.App.5th 1090,
1094.) We review the juvenile court’s custody and visitation
order for an abuse of that discretion. (See J.M., at p. 113;
In re C.W. (2019) 33 Cal.App.5th 835, 863.)
B. Bruce Did Not Forfeit His Challenge to the Visitation
Order
The Department argues Bruce forfeited his challenge to the
court’s order requiring monitored visitation because he did not
object to the requirement at the hearing under section 364. (See,
e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293 [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 P.L.
(2024) 100 Cal.App.5th 406, 409 [same].) Forfeiture, however,
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does not apply here. (See S.B., at p. 1293 [“application of the
forfeiture rule is not automatic”].)
Although counsel for Bruce did not directly address the
issue of visitation at the hearing, he did object generally to the
juvenile court terminating jurisdiction. Moreover, the juvenile
court did not state at the section 364 hearing that the court was
basing its order requiring monitored visitation on the finding
Bruce had not completed individual counseling. Thus, counsel
did not have an opportunity to object and point out that Bruce in
fact had completed individual counseling. The first time anyone
knew the court was basing its order requiring monitored
visitation on the (unsupported) finding Bruce had not completed
individual counseling was when the court signed the written
custody and visitation order, which had been prepared and
submitted by counsel for Rachel. Because Bruce had no
meaningful opportunity to object to the court’s erroneous factual
finding, he did not forfeit his challenge to that finding or the final
custody and visitation order.
C. The Court Abused Its Discretion in Ordering
Monitored Visitation by Relying on a Factual Finding
Not Supported by the Evidence
Bruce argues the juvenile court abused its discretion in
ordering monitored visitation because substantial evidence did
not support the sole reason the court gave for requiring
monitored visitation, a finding not mentioned at the hearing or
not disclosed until the written order. Bruce is correct.
The juvenile court entered its custody and visitation order
using the Judicial Council’s form titled “Custody Order–
Juvenile–Final Judgment” (form JV-200). (See § 362.4, subd. (e);
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In re Anna T., supra, 55 Cal.App.5th at p. 878; Cal. Rules of
Court, rule 5.700(b).) On the attached form JV-206 (titled
“Reasons for No or Supervised Visitation–Juvenile”) the court
stated, by checking boxes on the form, it was ordering “only
supervised visitation” because Bruce “has not completed” court-
ordered “[i]ndividual counseling.”
Substantial evidence did not support the court’s finding
Bruce had not completed court-ordered individual counseling. In
fact, the Department consistently advised the court that Bruce
had complied with the individual counseling portion of his case
plan. As the Department reported, Bruce attended weekly
therapy sessions. Bruce’s therapist provided three letters (dated
March 1, 2022, June 13, 2022, and June 22, 2023), each of which
confirmed Bruce began therapy on June 22, 2021 and
subsequently engaged “in therapy on average once per week and
continue[d] consistent compliance with treatment.” The therapist
provided additional details in each letter, including, for example,
that Bruce received “treatment in a combination of CBT
[cognitive behavioral therapy], Psychotherapy, and Family
Dynamics” to treat post-traumatic stress disorder, depression,
and anxiety and that Bruce was “making progress in therapy as
evidence[d] by reduce[d] conflict and increased exposure with
socialization, managing his anxiety by engaging in and
demonstrating coping strategies including grounding exercises,
utilizing anger control chain, and pursuing educational and
vocational skills towards employment.” Nothing in the record
contradicted the therapist’s letters or the other evidence of
Bruce’s participation in individual counseling.
The Department doesn’t really argue substantial evidence
supported the juvenile court’s finding Bruce did not complete
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individual counseling. Instead, the Department cites other
evidence in the record that, according to the Department,
supported requiring monitored visitation. For example, the
Department argues there was evidence Bruce did not participate
in mental health counseling, take all prescribed psychotropic
medications, or sign a release allowing the Department to obtain
information about his mental health treatment. The Department
also observes that Bruce did not always tell the Department
where he was and that, during the latter months of the
dependency proceedings, he refused to disclose any information to
the Department. The Department also relies on evidence that
Bruce rarely visited or contacted Kahlil during the dependency
proceeding and that his relationship with his son deteriorated.
Perhaps some or all of this evidence may have supported an
order requiring monitored visitation. But that is not what the
juvenile court found. The evidence cited by the Department may
or may not (sans incomplete individual counseling) have justified
requiring Bruce’s visits with Khalil to be monitored. And it is not
for us to say in the first instance. (See In re Chantal S., supra,13 Cal.4th at p. 206 [“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”]; In re J.M., supra, 89 Cal.App.5th at p. 112 [same].)
Moreover, the juvenile court’s error caused Bruce prejudice.
As he points out, to convince the family court to modify the
juvenile court’s custody and visitation order to allow unmonitored
visitation, he will have to demonstrate a significant change in
circumstances. (See § 302, subd. (d).) For this reason, the
“‘information included in the juvenile court order must address
the circumstances that led to the juvenile court’s child custody
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and parenting time orders to enable a family court to determine
whether circumstances have changed to a degree that justifies
considering whether the requested modification is in the best
interests of the child.’” (In re Anna T., supra, 55 Cal.App.5th at
pp. 878-879.) Given that Bruce complied with the juvenile court’s
individual counseling order (despite the court’s finding he didn’t),
it will be difficult if not impossible to show a significant change in
circumstances on that point.
Bruce asks for a variety of remedies for the juvenile court’s
error. He asks that we reverse the custody and visitation order
in its entirety, that we affirm the order but strike the monitored
visitation requirement, that we reverse the order and direct the
juvenile court to enter a new custody visitation order removing
the monitored-visitation requirement, or that we reverse the
order and direct the family court (which we have no jurisdiction
to do) to consider a new custody and visitation order based on
current circumstances. The juvenile court, however, is in the best
position to enter an appropriate custody and visitation order
based on the (actual) evidence. If the juvenile court concludes,
without finding Bruce failed to complete individual counseling,
that monitored visitation is still in Kahlil’s best interest, the
court should enter a new custody and visitation order with a
properly completed Judicial Council form JV-206 stating the
court’s findings in support of monitored visitation. If not, the
court should enter a new custody and visitation order allowing
unmonitored visitation.
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DISPOSITION
The juvenile court’s visitation order is reversed. The court
is directed to vacate its custody and visitation order, including its
finding Bruce failed to complete individual counseling, and to
enter a new custody and visitation order based on the evidence.
SEGAL, J.
We concur:
MARTINEZ, P. J.
STONE, J.
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