In re K.C. CA3

Filed 8/14/20 In re K.C. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re K.C. et al., Persons Coming Under the Juvenile C089726
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD238788,
CHILD, FAMILY AND ADULT SERVICES, JD238789)
Plaintiff and Respondent,
v.
M.G.,
Defendant and Appellant.
Appellant M.G., father of the minors, appeals from the juvenile court’s orders
partially granting his petition for modification and exit orders granting mother custody of
the minors and terminating dependency jurisdiction. (Welf. & Inst. Code, §§ 388, 390,
395.)1 He contends he was denied due process because he was not notified that mother,
1 Undesignated statutory references are to the Welfare and Institutions Code.
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who did not initially object to father’s section 388 petition, had changed her position
before opposing his petition at the continued hearing for modification. He also assigns
various errors to the custody and visitation orders. We shall strike a provision in the
visitation order and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the facts is unnecessary to the resolution of this appeal.
The minors in this case had been the subject of a November 2015 safety plan that
placed the minors with father and prohibited mother being around them due to her regular
substance abuse. The minors came to the attention of the Sacramento County
Department of Child, Family and Adult Services (Department) again in December 2017
when they were found in mother’s care. The minors were then two and three years old.
Father had been arrested on felony charges in September 2017 and had no projected
release date. Father claimed to have left the minors in the care and custody of the
paternal grandmother but she had had a stroke in November, and subsequently passed
away, and he had not made adequate arrangements for continued care.
The Department filed section 300 petitions on behalf of the minors based on
mother’s continued substance abuse and failure to obtain necessary medical care for the
minors, and father’s failure to provide adequate care and failure to protect the minors
from mother’s substance abuse. In May 2018 the juvenile court sustained allegations in
the petition and adjudged the minors dependents of the court. The minors were removed
from parental custody and mother was provided reunification services. Father, who has a
lengthy criminal history, was bypassed for services pursuant to section 361.5, subdivision
(b)(12) and (16). Regular visitation consistent with the minors’ well-being was ordered
for both parents.
Father had supervised telephone calls with the minors, which lasted about five to
10 minutes, until he was transferred to state prison in Tracy (which the record reflects
occurred sometime prior to September 2018). The juvenile court ordered father’s visits
limited to phone and letter contact while he remained in custody. Mother visited
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regularly and progressed in her reunification services and, in December 2018, the minors
were placed in her care. A review hearing was scheduled for April 18, 2019.
Father was transferred to Solano State Prison in November 2018 and transferred to
Sierra Conservation Center in Jamestown sometime prior to January 31, 2019. On
April 5, 2019, father filed a section 388 petition seeking modification of the juvenile
court’s December 2018 visitation order and requesting contact visitation two weekends a
month, preferably the second and fourth weekend of each month.2 The petition requested
mother, or another family member, bring the minors. As changed circumstances
supporting his petition, father explained that he had not had any contact visits with the
minors but had been participating in services while incarcerated. On February 20, 2019,
father’s institution classification committee approved him for contact visits with minors.
He alleged that “[g]iven the bond that the children and the father have, and the history of
the father being the primary caretaker for the children, it is in the children’s best interests
to be able to have contact visitation with their father, especially with his engagement and
efforts in services in the past 6 months.”
Also on April 5, 2019, the Department filed an in-home review report. The report
summarized mother’s progress and recommended mother be awarded sole legal and
physical custody, and father be provided supervised visitation.
At the commencement of the April 18, 2019 combined hearing on father’s section
388 petition and the section 364 in-home review, minor’s counsel requested a
continuance. Counsel had been unable to observe the minors in mother’s home prior to
the hearing. At this hearing, father told the court that, at his current correctional facility,
weekend visits are permitted from 8:00 a.m. to 3:00 p.m. He explained, that “[t]hey are
2 The petition described the December 2018 visitation order as providing for regular
visitation with the minors, consistent with their well-being, at the discretion of the
Department. Although such language was on the proposed order provided to the court in
December 2018, the box to include the language as part of the order is not checked. The
court did, however, appear to make interlineations on the paragraph to indicate it would
apply only to father, which could indicate its intent to include the paragraph in its order.
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supervised in a visitor room where they have several officers that are there and closed-
circuit cameras. It would be a contact visit for up to eight hours or whatever just in case -
- well, depending on if more visitors come, then they will shorten other visitors’ visiting
days, but it will be on the weekend.” Father summarized the services in which he had
been participating, took responsibility for the harm he had inflicted on his family, and
expressed his love for the minors. His earliest release date is 2022. The juvenile court
told father it was impressed with the progress father had made and encouraged him to
continue in his efforts. No objection having been made to the continuance, the court
continued the matters to May 2, 2019. Father’s counsel requested father be permitted to
waive his appearance at the continued hearing so he would not incur a lengthy absence
from his correctional facility, since such an absence would result in father being dropped
from the classes he was attending. The court granted his request and indicated it would
enter a transport order for father to be transported directly to Sierra Conservation Center
in Jamestown to prevent any delay in father’s return. The attorney specially appearing
for mother’s counsel then indicated to the court that she had spoken with mother and
mother did not object to father’s section 388 request. Neither minors’ counsel nor the
juvenile court gave any indication of their opinion of father’s request. The hearing was
continued to May 2, 2019.
Father’s counsel was present at the May 2, 2019 hearing but father was not, as he
had waived his appearance. Mother appeared with her appointed counsel. No objections
being made, the court addressed father’s petition for modification and the review hearing
together. Minor’s counsel began by agreeing with the Department’s recommendation to
terminate dependency. Regarding father’s petition, minors’ counsel indicated that
father’s visitation request had been “discussed . . . at calendar call” and that mother was
intending to express concern about the request. Minor’s counsel objected to father’s
request, noting previous discussions about less frequent visits, and argued for quarterly or
semiannual visits. Minor’s counsel argued twice monthly visits, as requested by father,
was too frequent, “given the distance and the burden it places on both the mother and the
children.”
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Mother’s counsel also agreed with the Department’s recommendation to terminate
dependency. Regarding father’s section 388 petition, mother’s counsel objected to
father’s request on the basis of the unknown safety of the visitation environment for the
young minors (ages three and four), the emotional impact on the minors visiting in a
correctional facility, and the impact on the minors as a result of the lengthy travel time
involved, which was estimated to be three to four hours per visit.
Father’s counsel stated that, at the prior court hearing, father had indicated the
Jamestown facility permitted visits between 8:00 a.m. and 3:00 p.m. on Saturdays and
Sundays and that father believed other family members would help transport the minors
to visits. Counsel added: “Unfortunately, he’s not here to give us all the details that
[mother’s counsel] raised about what kind of environment it would be, if it would just be
[one] room with the father, and a supervisor and the children or if it would be a general
large room where visitations with other inmates and their family members are happening
at the same time.” Counsel did not, however, ask for a continuance.
The juvenile court found the argument that the minors were young and it was
unknown “how those visits will be,” persuasive. It remarked that it was also clear father
loved the minors. The court also expressed concern about the possibility father could get
transferred to a facility much further away. With respect to father’s request for increased
visitation, the court granted father one visit per year for as long as he remains
incarcerated in Jamestown. The juvenile court further ordered: “If [father] gets moved to
a different prison, then the mother has discretion whether she wants to do that even once
a year. Once the father is released he’ll get once-a-month supervised visitation
determined by a third party of the mother. If he doesn’t approve of that third party it will
be agency supervised.” The court clarified with mother’s counsel, “I’m assuming you
want supervised because of his conviction history, or is there something else?,” to which
mother’s counsel stated, “Well, that. In addition, he has not seen the children in about a
year and a half, so we don’t know the children’s reaction to the father. I think probably
the most significant is the criminal history.” The court then reiterated and entered its
visitation orders.
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Father’s counsel then requested father share legal custody and mother be given
“primary” rather than “sole” physical custody because father is hoping that when he is
released from prison, he can share physical custody. Without further comment, the
juvenile court awarded mother sole physical and legal custody.
DISCUSSION
I
Due Process
Father contends he was denied due process when the hearing on his section 388
petition for modification proceeded without notice that mother had changed her position
and was opposing his request. Implying that he waived his appearance because mother
had indicated her assent to his request, he argues he was “ambushed” by her change in
position. We reject his contention.
Father had the sole burden of proof on his petition for modification, regardless of
whether another party agreed with, or opposed, the proposed modification. (In re Casey
D. (1999) 70 Cal.App.4th 38, 47; In re G.B. (2014) 227 Cal.App.4th 1147, 1157) Father
provides no authority for the proposition that he is entitled to advance notice of the
position the other parent intends to take, or any change in that position, regarding his
petition for modification. Indeed, the JV-180 form, itself, has a place to indicate that the
position of other parties is unknown, as that is often the case with such petitions. We
reject his unsupported argument that a parent’s change in position, without advance
notice, violates notions of fundamental fairness and due process.
In any event, even if father had been entitled to notice of mother’s changed
position, no due process objection was made in the juvenile court. “In dependency
litigation, nonjurisdictional issues must be the subject of objection or appropriate motions
in the juvenile court; otherwise those arguments have been waived and may not be raised
for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)
Despite the constitutional status of due process claims, they also may be forfeited by
failure to object. (In re A.E. (2008) 168 Cal.App.4th 1, 4-5; People v. Saunders (1993)
5 Cal.4th 580, 589-590.)
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Father’s counsel was present at the May 2, 2019 hearing and was aware of
mother’s changed position. “The general rule is that personal appearance by a party at a
civil proceeding is not essential; appearance by an attorney is sufficient and equally
effective. [Citations.]” (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.) Counsel did
not object to proceeding with the hearing, nor did she request a continuance in order to
secure father’s attendance or provide additional notice to father. Thus, father’s claim of
lack of notice regarding mother’s changed position is forfeited by counsel’s failure to
object to the proceeding on notice and due process grounds. (In re Christopher S. (1992)
10 Cal.App.4th 1337, 1344; People v. Smith (2001) 24 Cal.4th 849, 852; In re Riva M.
(1991) 235 Cal.App.3d 403, 411-412.)
II
Custody and Visitation Orders
When the juvenile court terminates dependency jurisdiction, it has authority to
make orders addressing custody and visitation. (§ 362.4; In re T.H. (2010)
190 Cal.App.4th 1119, 1122-1123.) Those orders focus on the minors’ best interests. (In
re Chantal S. (1996) 13 Cal.4th 196, 206; In re Nicholas H. (2003) 112 Cal.App.4th 251,
268.) “If there is a pending marital or paternity proceeding relating to the child, the
custody order will be transferred to the existing family court file. (See [§ 362.4], subd.
(b).) Otherwise, the order may be used to open a new file in the superior court of the
county in which the parent who has been given custody resides. (See id., subd. (c).) The
order shall continue ‘until modified or terminated by a subsequent order of the superior
court.’ (Id., subd. (b).)” (In re C.W. (2019) 33 Cal.App.5th 835, 863.) “An order entered
pursuant to section 362.4 is commonly referred to as an ‘exit order.’ [Citation.]” (In re
Nicholas H., supra, at p. 269.)
We review custody and visitation exit orders for abuse of discretion. (Bridget A.
v. Superior Court (2007) 148 Cal.App.4th 285, 300.) Such determinations are not
disturbed in a dependency proceeding in the absence of an arbitrary, capricious, or
patently absurd exercise of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-
319; In re Maya L. (2014) 232 Cal.App.4th 81, 102.) A court can also abuse its
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discretion by committing legal error. (See In re Charlisse C. (2008) 45 Cal.4th 145,
161.)
A. Legal Custody
Father asserts the juvenile court abused its discretion in awarding mother sole
legal custody because the court failed to articulate any basis for not awarding joint legal
custody and no basis is apparent in the record. We reject his assignment of error.
Father was not entitled to a statement of reasons in connection with the juvenile
court’s custody decision. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 713 [the Welfare
and Institutions Code “does not require a specific statement of reasons be given when
making a custody order”].) Moreover, contrary to father’s contention, the record
supports the juvenile court’s order.
Legal custody, as distinguished from physical custody, is “the right and the
responsibility to make the decisions relating to the health, education, and welfare of a
child.” (Cf. Fam. Code, §§ 3003, 3006 & §§ 3004, 3007.) Here, in light of father’s
incarceration, there was no practical way for parents to effectively communicate about
the daily decisions regarding the health, education and welfare of the children. Father
could not be easily reached by telephone or in person at his place of incarceration.
In support of his argument that he is entitled to joint legal custody, despite his
current incarceration, father emphasizes that the mere fact that a parent is incarcerated is
insufficient to support dependency jurisdiction without any evidence of risk to the child,
so long as the incarcerated parent makes arrangements for the child to be cared for during
the parent’s period of incarceration. (See § 300, subd. (g); Maggie S. v. Superior Court
(2013) 220 Cal.App.4th 662, 672-673.) He also notes that the fact that a parent is
incarcerated cannot serve as the sole basis denying a request for custody under section
361.2. (In re V.F. (2007) 157 Cal.App.4th 962, 969-970; but see In re A.A. (2012)
203 Cal.App.4th 597, 606-609 [limiting In re V.F.’s holding to cases where a child has
not been removed from the incarcerated parent under section 361, subdivision (c)].)
Father then attempts to take these principles one step further by arguing that if
incarceration alone is an insufficient basis for dependency jurisdiction or denying a
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noncustodial parent’s request for custody under section 361.2, it also cannot be the
deciding factor when a court exercises its discretion at a review hearing to grant sole
custody to the remaining, nonincarcerated parent. We reject this argument and conclude
that father’s incarceration can properly serve as a factor in the court’s decision not to
award joint legal custody.
Nothing in the Welfare and Institutions Code, Family Code, or case law gives an
incarcerated parent an absolute right to legal custody. Moreover, it is well established
that, contrary to father’s suggestion, the family law presumption favoring joint custody
does not apply to juvenile court custody orders entered upon termination of jurisdiction.
(In re Jennifer R., supra, 14 Cal.App.4th at pp. 711-713.) While family law has a
presumption favoring joint custody, “application of a family-law-based joint custody
presumption would be inconsistent with the purpose of juvenile court law.” (In re
Chantal S., supra, 13 Cal.4th at p. 206.) Instead, the dependency 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.’ [Citation.]” (Ibid.)
In sum, we conclude the juvenile court acted within its discretion in entering its
custody order awarding sole legal custody to mother. Should circumstances change,
because father is transferred or released, or otherwise, father is free to seek modification
of the custody order in the family law court. (§ 302, subd. (d); see also In re Jennifer R.,
supra, 14 Cal.App.4th at p. 714.)
B. Visitation Order While Father is in Jamestown
Father contends the juvenile court’s visitation order providing him one visit per
year while he is in the correctional facility in Jamestown was an abuse of discretion
“because [the court] misapplied the law, did not consider all the material facts, and based
its ruling on speculation, not substantial evidence.” We find no abuse of discretion.
At the May 2, 2019 hearing, mother’s counsel objected to father’s request for
twice monthly in-person visits at the Jamestown facility on the basis of the unknown
aspects of the visitation environment for the young minors (ages three and four), such as
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who would be present, whether there was a possibility that other inmates would be in the
room and could become unruly or use loud obscenities, the emotional impact on the
minors visiting in a correctional facility (including security screening and measures, and
the correctional institution environment in general), and the impact on the minors as a
result of the lengthy travel time involved, which was estimated to be three to four hours
per visit, and the additional time involved in complying with prison security screening.
Mother’s counsel suggested letter and telephone contact while father is incarcerated
would be more appropriate.
Father’s counsel responded that, at the prior court hearing, over which this
particular judge had not presided, father had indicated the Jamestown facility permitted
visits between 8:00 a.m. and 3:00 p.m. on Saturdays and Sundays and that father believed
other family members would help transport the minors to visits. Counsel added:
“Unfortunately, he’s not here to give us all the details that [mother’s counsel] raised
about what kind of environment it would be, if it would just be [one] room with the
father, and a supervisor and the children or if it would be a general large room where
visitations with other inmates and their family members are happening at the same time.”
The juvenile court found mother’s counsel’s argument that the minors were young
and it was unknown “how those visits will be,” persuasive. As father now points out,
father had, in fact, provided some information regarding the visitation environment. He
had explained at the previous hearing that other inmates would be in the visitor room,
along with several officers and closed-circuit cameras. He argues that, because the court
did not consider this information at the May 2, 2019 hearing, its order was an abuse of
discretion. We disagree.
The additional information provided by father did not sufficiently address or
resolve the safety issues raised by mother’s counsel so as to undermine the visitation
order. The concern was that other inmates may be present and the information provided
by father did not dispel, but rather, confirmed that to be a concern.
In any event, while the juvenile court had some questions as to the environment of
visitation in the Jamestown facility, the court’s remark that it was unknown “how these
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visits will be” does not reveal a sole reliance on the nature of the visitation room itself.
The juvenile court also considered argument about the impact, emotional and physical, of
the length of travel, the additional time to check in, go through security, and of visiting in
a correctional institution environment, on these very young minors who had not seen
father in almost two years. All of these factors, affect “how the visits will be.”
We also reject father’s argument that the juvenile court misapplied the law. Citing
to case law applicable to visitation requirements when visitation is a component of
reunification services, he appears to argue, rather ambiguously, that the court was
required to consider facts such as the distance between the minors’ home and the prison
and whether the parent’s incarceration was due to abusing the child, in addition to the
minors’ ages, in determining an appropriate visitation schedule in the minors’ best
interests. Not only are the cases cited by father inapplicable to custody and visitation
orders entered upon termination of dependency, they are unhelpful in establishing error.
Additional factors, such as these, were argued and considered by the juvenile court in this
case.
C. Future Visitation Order if Father is Transferred
The juvenile court’s exit order provided for yearly visitation while father remained
at the correctional facility in Jamestown. In the event father is transferred to a different
correctional facility, the court gave mother the discretion to decide whether to bring the
minors to that facility for visits “even once a year.” Father contends this is an improper
delegation of judicial discretion.
“Once visitation is ordered, the court may delegate responsibility for managing
details such as the time, place and manner of visits, none of which affect a parent's
defined right to see his or her child. [Citations.] However, the visitation order must give
some indication of how often visitation should occur. [Citations.] A court may not
abdicate its discretion to determine whether visitation will occur to a third party.
[Citations.]” (In re E.T. (2013) 217 Cal.App.4th 426, 439.) A visitation order granting a
third party complete and total discretion to determine whether visitation occurs at all is
improper. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.) “The rule of
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nondelegation applies to exit orders issued when the dependency jurisdiction is
terminated. [Citations.]” (In re Armando L. (2016) 1 Cal.App.5th 606, 616; accord, In re
T.H., supra, 190 Cal.App.4th at p. 1123.)
In this case, the juvenile court’s visitation order gave mother complete and total
discretion to decide whether father would have any visits at all in the event he is
transferred to a different correctional facility. We note, however, that father (through
counsel) did not object to this delegation of discretion in the juvenile court.
A party forfeits a claim that the juvenile court improperly delegated its visitation
authority to a third party when he or she fails to object in the juvenile court. (Kevin R. v.
Superior Court (2010) 191 Cal.App.4th 676, 685-686; In re Dakota H. (2005)
132 Cal.App.4th 212, 221-222; In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642.)
“The purpose of this rule is to encourage parties to bring errors to the attention of the trial
court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt
from this rule. [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by
statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 961-962.)
We will, nonetheless, excuse the forfeiture and accept the Department’s
concession that the visitation order, as it relates to future visits should father be
transferred to another correctional facility, is improper. (See In re S.B., supra, 32 Cal.4th
at p. 1293.)
We shall not, however, remand the matter for the juvenile court to enter a new
visitation order. Whether, when and where father may be transferred in the future is
entirely speculative. It is not practical for the juvenile court to enter specific visitation
orders in accordance with the minors’ best interests without any information as to where
father may be transferred and the conditions related to that facility. For example, the
court cannot know how far minors would have to travel, whether the facility has a place
for safe visitation with young minors, or even what age the minors will be at the time of
father’s possible transfer(s). (See, e.g., In re Elizabeth R. (1995) 35 Cal.App.4th 1774,
1792 [visitation where parent is incarcerated “may or may not be reasonable depending
on the rules and regulations of the institutions involved, the condition of the parent, and
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the distance from the children’s placement”].) Accordingly, because any future transfer
or transfers remain purely speculative and no information is available to the juvenile
court to permit it to exercise its discretion, we shall, instead of remanding the matter,
strike this visitation component of the exit order. Should father be transferred to another
correctional facility prior to his release from custody, he can move the family law court
for an appropriate visitation order. (§ 302, subd. (d); see also In re Jennifer R., supra,
14 Cal.App.4th at p. 714.)
D. Supervised Visitation Order Upon Father’s Release
Finally, father contends the juvenile court’s order providing that his visitation with
the minors after he is released from custody be supervised is an abuse of discretion. This
contention is forfeited and lacks merit.
Ordinarily, a parent's failure to object and bring a matter to the juvenile court's
attention results in a forfeiture because it deprives the court the opportunity to correct any
error in the first instance. (In re S.B., supra, 32 Cal.4th at p. 1293.) Father failed to
object to having his postrelease visits supervised. We reject his contention that his
counsel’s subsequent request that father share legal custody and mother be given primary,
rather than sole physical custody was sufficient to preserve the issue of whether father’s
visits, after his release from custody, should be supervised. Because father failed to bring
the matter of postrelease unsupervised visitation to the juvenile court's attention, we
conclude he forfeited the right to now raise it on appeal.
In any event, we would find no error. Father has a lengthy and significant
criminal history, including convictions for serious and violent felonies, and is required to
register as a sex offender. Mother had also reported previous domestic violence
committed by father in the presence of the minors. Father had been bypassed for services
and, although he had participated in services at his current place of incarceration, he had
not completed them or been evaluated. He had not had any contact visits with the three-
and four-year-old minors since his arrest in September 2017, almost two years earlier,
and was not eligible for release for at least another two years. Thus, the Department had
been unable to observe the appropriateness of the visits or emotional impact the visits
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may have on the minors. In light of these circumstances, it was not an abuse of discretion
to order father’s postrelease visits be supervised.
DISPOSITION
The visitation component of the exit order as it relates to father’s visitation in the
event he is transferred to a correctional facility other than the facility in Jamestown,
California, is stricken. In all other respects, the orders of the juvenile court are affirmed.
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
MAURO, J.
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