Opinion
E082022
03-06-2024
In re J.K., et al., Minors Coming Under the Juvenile Court Law. v. K.G., Defendant and Appellant. THE COUNTY OF SAN BERNARDINO CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J293553-54. Steven A. Mapes, Judge. Affirmed.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MENETREZ J.
K.G. (Mother) appeals from the juvenile court's order terminating visitation with her daughter, A.K., and her son, J.K. Mother argues that the court erred by finding that Mother's visits were detrimental. She contends that the court's finding was not supported by substantial evidence, the court's explanation of its reasoning lacked specificity, and the court failed to consider alternatives before terminating visitation. We affirm.
BACKGROUND
I. Referral and Detention
In June 2022, the San Bernardino County Department of Children and Family Services (CFS) received an immediate response referral alleging Mother's general neglect of eight-month-old J.K. Police officers found Mother "passed out" in the driver's seat of her car with the engine running and the car in drive with her foot on the brake. J.K. was crying in the back seat. Officers had to shake Mother to wake her. As Mother got out of the car, a bag of fentanyl fell out, and the officers found syringes inside of the car. Mother did not have any food for J.K., but she poured water into a bottle and gave it to him. She admitted that she had used methamphetamine earlier that day and had nowhere to stay that night. She did not know where father was or how to contact him. Mother was arrested and charged with child endangerment (Pen. Code, § 273A).
Mother told CFS that J.K.'s four-year-old sister, A.K., lived with maternal grandmother, Ms. G. When contacted, Ms. G. told CFS that she was in Texas until June and did not know that Mother had been using drugs. Ms. G. stated that she was willing to take care of J.K. and A.K. if they were removed from the parents' care. Ms. G. also provided father's telephone number.
When the social worker spoke to father, he said that he wanted to pick up J.K. immediately. Father said that he had an argument with Mother the previous day over whether she was using drugs. He said that he had been sober for over a year and was willing to take a drug test. When the social worker explained to father that he needed to be assessed before they could release J.K. to him, father became verbally abusive and asked to speak to a supervisor. Father demanded that J.K. "be turned over to him" and continued yelling into the phone. After accusing CFS of kidnapping, father said that he was calling his lawyer and ended the call.
The detention report noted that Mother had a history of substance abuse and that both Mother and father had criminal histories. Both Mother and father had multiple previous drug charges, and father had a traffic-related warrant for his arrest in Arizona.
There had also been referrals for both A.K. and J.K. at their births. In 2017, Mother tested positive for methadone at A.K.'s birth and admitted prior heroin use. In 2021, after J.K.'s birth, the child's meconium tested positive for opiates. The referrals were closed because Mother was receiving methadone treatment.
CFS filed petitions as to both A.K. and J.K. under Welfare and Institutions Code section 300, alleging that Mother had an unstable and unsafe lifestyle, lacked parenting skills, had a substance abuse problem, was arrested for being found in a car under the influence, and was unable to make arrangements for the care of A.K. (Unlabeled statutory references are to the Welfare and Institutions Code.) The petitions also alleged that father failed to supervise or protect the children and that he knew or should have known that they were at risk if left in Mother's care.
At the detention hearing, the court detained A.K. and J.K. from both parents, placed them with maternal grandmother, and ordered drug test referrals for both parents. The court ordered monitored visits for both parents at least once per week for two hours. The court set the jurisdiction and disposition hearings for July 2022.
II. Jurisdiction and Disposition
The jurisdiction and disposition report noted that Mother acknowledged that her relapse was what led to CFS's involvement and that it created "an unhealthy situation" for J.K. Mother denied being under the influence of drugs when she was approached by law enforcement, but she stated that she should not have had J.K. in her care during her relapse. Mother denied that her car was in drive and that her foot was on the brake when law enforcement approached her. She said that the needles found in the car belonged to an acquaintance. She also denied that the fentanyl that fell out of the car was hers. She admitted having a history of methamphetamine and heroin use. And it appeared to the social worker that Mother was under the influence during the interview, because she appeared to doze off frequently and perspired excessively. CFS also reported that neither parent completed the court-ordered drug test.
At the contested jurisdiction and disposition hearings, CFS voluntarily dismissed the allegations that Mother lived an unstable lifestyle and that she was incarcerated. Mother claimed that the allegation that her car was in drive was incorrect. The court found that the police report was more credible than Mother because she was "nonresponsive at the time of contact" and would not be a reliable historian. The court sustained the remaining counts "as alleged." The court found that father was the presumed father and removed both children from the parents' custody. The court ordered reunification services for the parents, and the visitation order remained unchanged. The court set a six-month review hearing for February 2023.
III. Reunification
In its six-month status review report, CFS reported that it was unable to contact Mother until January 2023. At that time, a social worker discussed Mother's case plan with her. Mother explained that she had been "doing services on her own," and the social worker informed Mother that the court had ordered specific services for her. The social worker asked Mother to provide information regarding the services that Mother had completed and to sign a release of information, but Mother did not do so. Mother had visited the children twice since disposition. Father had not visited, and his whereabouts were unknown.
CFS recommended that reunification services be terminated because Mother "failed to participate regularly and make substantive progress in the Court-ordered case plan." CFS further recommended that the court find that it was in the best interest of the children to schedule a hearing under section 366.26. Both parents objected to the termination of services and the setting of a section 366.26 hearing. The court followed CFS's recommendation, terminated reunification services for both parents, and set a section 366.26 hearing for June 2023.
IV. Section 366.26 Report and Hearing
In its initial section 366.26 report, CFS reported that a maternal aunt wanted to adopt A.K. and J.K., and the maternal grandmother (with whom the children were still placed) agreed. CFS recommended that the court continue the hearing for 90 days to allow CFS to assess the maternal aunt. Mother's visits had become consistent and were going well. At the original section 366.26 hearing, Mother requested additional visits. The court noted that the current visitation frequency was "a minimum order" and left the decision to CFS. The court granted CFS's request for a continuance to October 2023.
V. Visitation Hearing
One and one-half months after the original section 366.26 hearing, CFS recommended that the court terminate Mother's visits with A.K. and J.K. CFS reported that the children's caregiver found Mother's cellphone in the children's belongings along with a folded piece of paper, which enclosed a substance that CFS believed was heroin. Mother objected to CFS's recommendation, and the court set a hearing on CFS's request. In advance of the hearing, Mother filed documents showing that she had registered for a parenting class and a substance abuse awareness class, that she went to a treatment center for outpatient methadone maintenance, and that she submitted to a random drug test in June 2023.
At the hearing, CFS asked the court to find that Mother's visits were detrimental because she "left" or "planted" a cellphone and suspected heroin with the children, and the children had access to them.
Mother's counsel argued that the incident was accidental. He claimed that while cleaning up after a visit, Mother put her phone in the wrong bag. He said that in the phone's case there was a folded piece of paper that contained a powder, which was a "pain-relieving substance" that a friend had given to Mother for migraines. He said that it was not an illegal substance, and he argued that it had not been positively identified. Counsel pointed out that visits had gone well "before this incident" and that the children had been enjoying them. The court granted CFS's request and terminated Mother's visits, stating "I've heard the arguments. I don't believe the arguments. I will find detriment for the visits."
DISCUSSION
Mother argues that the court's finding that her visitation would be detrimental to the children is not supported by substantial evidence. She also contends that the court's explanation of its reasoning lacked specificity and that the court failed to consider alternatives before terminating visitation. We conclude that Mother forfeited the last point by failing to raise it in the trial court, and she has not otherwise shown any prejudicial error.
A "reunification plan must include visitation." (In re Luke L. (1996) 44 Cal.App.4th 670, 679.) But when "the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The 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).) In that context, the standard of proof for the juvenile court's detriment finding is preponderance of the evidence (In re Manolito L. (2001) 90 Cal.App.4th 753, 760-761), and we review that finding for substantial evidence (In re A.J. (2015) 239 Cal.App.4th 154, 160). In conducting substantial evidence review, we view the evidence in the light most favorable to the prevailing party "and indulge all legitimate and reasonable inferences to uphold the juvenile court's determination." (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210.)
Substantial evidence supports the court's determination that Mother's visits would be detrimental. The evidence showed that Mother had a long history of substance abuse, including heroin and methamphetamine use, and had received methadone treatment for her addiction. The record contains evidence that at a visit Mother left heroin where the children had access to it. Mother subsequently claimed that the substance in the folded piece of paper was merely a pain reliever that a friend had given to her, but the juvenile court did not find Mother's story credible. In reviewing factual determinations for substantial evidence, "[w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Accordingly, substantial evidence supports the trial court's finding that visits were detrimental, because at a visit Mother left heroin within reach of the children.
Second, Mother appears to argue that the juvenile court did not explain its reasoning with sufficient "specificity." Mother cites no authority for the proposition that when terminating visitation, the court must not only find that visitation would be detrimental but must also explain its reasoning with specificity, and we are aware of no such authority. Insofar as Mother's argument is based on In re David D. (1994) 28 Cal.App.4th 941 (David D.) and In re C.C. (2009) 172 Cal.App.4th 1481 (C.C.), the argument fails because neither case imposes the specificity requirement on which Mother relies. In David D., the court terminated visitation without making a detriment finding at all. (David D., at p. 954.) And C.C. involved the termination of visitation during the reunification period, which the court recognized was subject to a different standard from termination of visitation after reunification services have been terminated. (C.C., at p. 1491 [explaining that during reunification visits can be terminated only if they pose a risk to the child's safety, but termination after the reunification period can be based on a more generalized finding of detriment].) David D. likewise involved termination of visitation during the reunification period. (David D., at p. 945 [describing the suspension of all visitation several months before the 12-month review hearing].) Neither case stands for the proposition that after the reunification period, if the juvenile court terminates visitation on the ground that continuing it would be detrimental, then the court must explain its reasoning with specificity. For all of these reasons, we reject Mother's argument.
Finally, Mother argues that there were other safety measures available that would have allowed visitation to continue. But she never raised that issue in the trial court. Rather, she opposed CFS's request to terminate her visits solely on the ground that the substance in the folded piece of paper was not heroin. "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 trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221.) Because Mother did not ask the juvenile court to consider whether any other safety measures were available, she forfeited the issue and cannot now raise it for the first time on appeal.
DISPOSITION
The order terminating Mother's visitation is affirmed.
We concur: MILLER ACTING P. J., RAPHAEL J.