Opinion
B311124
05-17-2022
In re I.D., a Person Coming Under the Juvenile Court Law. v. C.D. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant C.D. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant D.D. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 18CCJP00557B, Jean M. Nelson, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant C.D.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant D.D.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
C.D. and D.D., mother and father of now nine year old I.D. (the child), appeal from the juvenile court's orders terminating their visitation with the child. Mother also appeals from the court's order denying her Welfare and Institutions Code section 388 petition. We affirm.
All statutory references are to the Welfare and Institutions Code.
Mother and father purport to join each other's arguments to the extent they benefit themselves. "Joinder may be broadly permitted (Cal. Rules of Court, rule 8.200(a)(5)), but each appellant has the burden of demonstrating error and prejudice (People v. Coley (1997) 52 Cal.App.4th 964, 972 . . .; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 . . . ['Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice[]'][.])[ ]" (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) Neither parent "spells out" how the other parent's arguments apply to them and thus their "joinders" are deficient.
II. BACKGROUND
A. First Amended Section 300 Petition
On April 24, 2018, the Los Angeles County Department of Children and Family Services (Department) filed a first amended section 300 petition that alleged, as ultimately sustained, that on or about January 14, 2012, mother and father engaged in domestic violence and a protective restraining order was issued against father; on numerous occasions, the parents violated the restraining order requiring law enforcement intervention. It further alleged that mother had a history of alcohol abuse and was a current user of alcohol and marijuana; on prior occasions mother used alcohol and marijuana while caring for the children; and mother had passed out from alcohol intoxication in the children's presence and the children were unable to wake her.
The first amended petition was filed with respect to the child and her sibling, A.P. A.P. is not a subject of this appeal.
B. Jurisdiction/Disposition Report and Hearing
In its April 16, 2018, Jurisdiction/Disposition Report, the Department reported that A.P. and I.D. were placed with maternal aunt E.H. A.P. told a social worker that mother drank too much alcohol. Mother sometimes became drunk. On two occasions, she passed out.
The juvenile court removed the child from the parents' care. It ordered reunification services for mother and father. Mother was ordered to participate in a full drug and alcohol program with weekly random or on demand testing. She was also to participate in a 12-step program, developmentally appropriate parenting education, and individual counseling to address case issues including domestic violence and anger management. The court granted mother monitored visitation with the child for a minimum of two to three hours, two to three times per week. Mother was not permitted to visit the child with father.
The juvenile court ordered father to participate in a 52-week domestic violence program and a developmentally appropriate parenting program. He was to comply with criminal court orders. The court granted him monitored visitation with the child for a minimum of two to three hours, two to three times per week. He was not to visit the child with mother.
C. Six-Month Review Report and Hearing
In its January 10, 2019, Status Review Report for the six-month review hearing, the Department reported that mother was working diligently to complete her court-ordered services. Mother and the child had had "consistent [and] meaningful" visits during which they bonded. The child appeared to enjoy the visits, singing, "'I love my mommy.'" The visits appeared to have had "so much impact" on the relationship between mother and the child that E.H. scheduled additional time for them to be together.
Although father had not visited the child consistently, when he did visit, the visits were "meaningful." The child appeared to enjoy visits with father.
In a Last Minute Information for the Court for the six-month review hearing, the Department reported that father's last face-to-face contact with the child was on October 29, 2018. As of January 10, 2019, father had not started his parenting class. Father told the social worker that he was attending domestic violence classes, but refused to provide contact information or the class's location.
In a second Last Minute Information for the Court, the Department informed the juvenile court that on December 19, 2018, E.H. reported that mother was sending her threatening messages and was being aggressive on the phone. She did not feel comfortable giving mother additional visitation.
The child's counselor stated that the child was "experiencing many trauma-related symptoms including anxiety, depression, intrusive thoughts, avoidance, arousal, and disassociation." E.H. reported to the counselor an "improvement in functioning" when the child did not have visitation with mother. Among other things, the child was calmer, listened better, and did not show defiance.
The counselor stated that the "stressor of visitation with her mother is likely contributing to trigger trauma symptomology. It is of concern that with these triggers [the child] continues to exhibit an acute trauma state. Should this continue this can result in a very guarded prognosis and potential significant neurodevelopmental consequences. The negative impact of continuing visitation should be considered in light of functional status concerns."
The juvenile court granted mother unmonitored visitation with the child for a minimum of two to three hours, two to three times per week in a public setting. Father was not to be present for the visits. Mother was not to threaten E.H.
D. The Department's February 19, 2019, Section 388 Petition
On February 19, 2019, the Department filed a section 388 petition requesting the juvenile court to change its order for unmonitored visits for mother. Instead, it requested an order that visitation take place in a therapeutic setting, mother's educational rights be given solely to E.H., and mother participate in a full psychological evaluation.
E.H. was worried about the quality of mother's visits with the child due to the child's behavior after the visits. After visits, the child had a "'nasty attitude, '" did not listen, and hit her cousin. It took a couple of days for the child's behavior to "get back on track."
On January 24, 2019, E.H. told the social worker that the child said she spoke with father on the phone during a visit with mother. The child disclosed to E.H. that she always spoke with father during visits with mother. E.H. also told the social worker that the child's school principal informed her that mother had called the school making threats, using derogatory language, and requesting the child be kicked out of school because she was not being taken care of and not doing her homework.
On February 5, 2019, the social worker spoke with the child privately. The child said she and mother "share secrets that [mother] doesn't want her to share." The social worker asked the child how visits with mother went. The child responded, "'[G]ood.'" She reported that she spoke with father during visits.
On February 8, 2019, the social worker spoke with the child's school principal. The principal stated that mother called the school yelling and screaming that the child was not doing her homework and should be kicked out of school. Mother "'appeared erratic and was possibly under the influence.'"
The child's therapist recommended that visitation with mother and father be reevaluated in light of the child's reported "re-traumatization."
On April 18, 2019, the juvenile court granted the Department's section 388 petition. It ordered mother's visitation with the child be monitored in a therapeutic setting. E.H. was appointed the child's educational rights holder. Mother was to participate in a psychological evaluation.
E. May 3, 2019, Last Minute Information for the Court
In a May 3, 2019, Last Minute Information for the Court, the Department reported that father had provided proof that he had completed a domestic violence program. Father had not attempted to visit the child-his last visit was on October 29, 2018.
F. May 3, 2019, Six-Month Review Hearing
At the May 3, 2019, six-month review hearing, the juvenile court continued reunification services for mother, but terminated reunification services for father.
G. Mother's July 1, 2019, Walk On Request
On July 1, 2019, mother filed a walk on request concerning her lack of visitation. She noted the juvenile court ordered her visits be in a therapeutic setting, but she had not had any visits with the child as of June 27, 2019. The court ordered the Department to ensure that mother's visits with the child took place in a therapeutic setting.
H. Eighteen-Month Status Review Report
In its August 28, 2019, Status Review Report for the 18-month review hearing, the Department reported that the child remained placed with E.H. Father had been consistent with visits with the child. The child enjoyed visits with father, her half-brothers, and paternal grandmother. She also enjoyed her one visit with mother on August 3, 2019, and looked forward to future visits and phone calls with her.
Mother had completed an in-patient drug treatment program at Cri-Help. Mother completed seven of 18 scheduled drug tests. On July 1, 2019, mother tested positive for opiates and Hydrocodone. She told the social worker the positive test was the result of medication given to her at the hospital for her gallbladder. The social worker requested hospital records concerning mother's claim.
Mother claimed to be attending Alcoholics Anonymous and Narcotics Anonymous and to be working on her 12-step program. Mother did not provide proof of attendance during the recent period of supervision and last gave proof of attendance on August 4, 2018. Mother claimed she completed a psychological evaluation on July 18, 2019, but did not provide documentation for her claim. The Department gave mother several referrals for low cost and no cost individual counseling. Mother stated she was working on having her Medi-Cal reinstated so she could resume counseling.
The Department recommended that mother's reunification services be terminated and the matter be set for a section 366.26 hearing.
The juvenile court continued the 18-month review hearing ultimately to January 29, 2020.
I. October 16, 2019, Last Minute Information for the Court
In an October 16, 2019, Last Minute Information for the Court, the Department reported the therapist who served as the visitation monitor opined that mother could safely have unmonitored visitation with the child under certain conditions: mother had to provide proof of a valid driver's license and car insurance; visits should not exceed three to four hours; mother had to provide a clean drug and alcohol test to document sobriety; and visits should be scheduled on days when mother had adequate rest.
In a second October 16, 2019, Last Minute Information for the Court, the Department reported that mother and the child had monitored visits on August 25, 2019, and on September 7, 15, and 22, 2019. The therapist monitored phone calls between mother and the child on September 4, 11, and 18, 2019. The visits and phone calls were uneventful and appropriate except for one visit when mother became agitated and discussed case issues with the social worker in front of the child. During the September 15 visit, the child and mother appeared to have a "good interaction and the hugs and kisses seemed natural and reciprocal."
Father had visits with the child on September 4, 11, 18, and 25. He canceled a visit on October 2, 2019.
On September 1, 2019, the child was placed with maternal uncle R.D. and aunt R.D. The caregivers requested the juvenile court make a no-contact order for mother and father. They expressed their unwillingness to have any contact with the parents.
J. Father's December 12, 2019, Section 388 Petition
On December 12, 2019, father filed a section 388 petition requesting the juvenile court reinstate family reunification services, return the child to him, grant him unmonitored visits, and approve mother to monitor visits with the child. Father stated that he had consistently and meaningfully visited with the child and had completed parenting and domestic violence classes.
The Department filed a response to father's section 388 petition. It stated that father had visited the child nearly every week for two to three hours since June 12, 2019. Father and the child shared a strong father-daughter bond. Father was always appropriate during visits. The child stated on several occasions that she loved visiting father and frequently became upset when visits ended. Father also had completed his court-ordered case plan. The Department recommended that the juvenile court reinstate family reunification services for father and grant him unsupervised visits not to exceed five hours; mother was not to be present during father's unsupervised visits. It further recommended the court not place child with father.
K. January 29, 2020, Last Minute Information for the Court
In a January 29, 2020, Last Minute Information for the Court, the Department reported that mother's discharge plan from Exodus Recovery Urgent Care Center stated that mother had been diagnosed with adjustment disorder. She was advised to follow up with treatment at BAART Community Healthcare. Mother did not follow up with treatment because further treatment was recommended, but not required.
Mother completed a residential alcohol dependence program at Cri-Help and a parent education course. Mother was participating in individual counseling and had completed seven sessions. According to mother's counselor, she appeared to understand her past mistakes and to be facing them honestly and engagingly.
Mother had six negative drug tests from December 12, 2019, to January 21, 2020. From December 15, 2019, to January 22, 2020, mother had nine monitored visits with the child and one visit mother canceled.
In a January 3, 2020, telephone conversation with a social worker mother appeared to be under the influence. Mother was slurring her words, speaking very slowly, and not making sense. Mother denied she was under the influence. The same day, maternal aunt E.E. told the social worker that mother had appeared to be under the influence during a telephone conversation on December 22, 2019. E.E. stated that mother slurred her words and spoke slowly and had threatened to report her to the IRS for filing false tax returns.
On January 17, 2020, mother exchanged text messages with the child's foster mother concerning an upcoming visit. When the foster mother told mother she was unable to monitor a visit both to a movie and a pizza restaurant, mother responded, "'That is my daughter. You get paid for her so what I want to do, I should be able to. Don't tell me pizza only.'" The social worker spoke with mother about how she communicated with the child's foster mother.
The child had been re-placed from maternal uncle and aunt's home.
The Department recommended the juvenile court terminate mother's reunification services.
L. January 29, 2020, Eighteen-Month Review Hearing
At the January 29, 2020, eighteen-month review hearing, the juvenile court terminated mother's reunification services. It granted part of father's December 12, 2019, section 388 petition, reinstating reunification services.
M. Mother's July 13, 2020, Walk On Request
On July 13, 2020, mother filed a walk on request for, among other things, monitored visits in her home. The juvenile court ordered the Department to assess monitored visitation in mother's home and provide any change in recommendation in its next report. It set the matter for a permanency planning review hearing on September 29, 2020.
N. Permanency Planning Status Review Report
In its September 29, 2020, Status Review Report for the permanency planning review hearing, the Department reported that on July 14, 2020, mother reported that she and father had recent verbal altercations and "they had the police called" due to father coming to mother's residence unannounced.
The social worker contacted father about the incident mother described. Father said mother was lying and she was the one who was being aggressive. He helped mother financially with her residence and was the primary lessee on mother's home. Father admitted he was in an "'on again, off again'" relationship with mother. Mother and father reported that their relationship was tumultuous, but they remained in constant communication and contact.
Due to COVID-19 state protocols, father's visits with the child were held by video from March 17, 2020, to May 13, 2020. Thereafter, they had weekly visits for a minimum of four hours. The child reported that father allowed mother to call and video chat during their unmonitored in-person visits. When the social worker spoke with father about the need to comply with court orders, he agreed not to allow mother access to the child during his visits.
The child reported that visits with father lacked substance and meaningful contact. The child wanted to have more of an opportunity to bond with father as he rarely spent the visitation time with her. After her September 13, 2020, visit with father, the child told the social worker that her visits with father were "not very good." She reported that father would leave for an hour or two every visit to buy food and routinely slept for several hours during visits.
Mother's visits with the child had been consistent, but the "appropriateness" of mother's visits concerned the Department. Mother continued to need redirection to provide emotionally positive feedback to the child during visits. Mother encouraged the child to have visits with her and father together.
The child stated that she loved mother, but she did not like that mother lied. When asked what mother lied about, the child responded that mother told her to listen only to mother and not to her caregiver or the social worker. The child loved her parents, but wished they could "'be good and listen to the rules.'"
O. Mother's December 29, 2020, Section 388 Petition
On December 29, 2020, mother filed a section 388 petition seeking to change the juvenile court's order terminating her family reunification services. Instead, mother wanted the court to return the child to her custody, reinstate family reunification services, or grant unmonitored and overnight visits.
Mother contended a change of circumstances supported the petition because she attended individual counseling twice a month, was sober, and was willing to prove her sobriety through random testing but could not afford it. She spoke with her sponsor daily and visited the child when the Department arranged visits and called to talk about the child's well-being weekly. Finally, she had completed a residential treatment program and a psychological evaluation at Exodus.
Mother contended the requested order would be in the child's best interest because the child "was a seven year old girl who ha[d] a close and bonded relationship with her mother. She ha[d] been quoted as saying she love[d] her mother in [the Department's] reports filed with the Court. It [was] in [the child's] best interest to be returned to her mother's care and have the least amount of restrictions and interference on the quality of time she [could] spend bonding with her mother." The juvenile court set mother's section 388 petition for a hearing.
In its February 16, 2021, response, the Department stated that mother did not want the child to attend individual therapy and also did not want to attend conjoint therapy with the child. The child and her caregiver consistently reported to the social worker that mother appeared under the influence of drugs and/or alcohol during video/telephone calls. Mother attempted to intimidate the child, caregiver, and social worker by yelling or being aggressive.
On December 31, 2020, the child told the social worker that she felt scared to be around mother for in-person visits because mother would become angry and yell at everyone. Mother told her to lie if anyone asked about mother or father doing anything bad. Then, mother lied and said the child was not telling the truth. The child was willing to have one monitored telephone call with mother per week. She did not want to have in-person visits with mother as mother was always mean and angry.
P. January 5, 2021, Last Minute Information for the Court
In its January 5, 2021, Last Minute Information for the Court, the Department reported, "During this period of supervision, mother's quality of visits has significantly changed." The child reported she did not enjoy mother's calls or visits because mother was overly aggressive and excessively agitated during contact with her. When mother missed her scheduled calls with the child, she tended to yell at or continuously call the caregiver and the social worker. Mother's demeanor and inability to work with the Department saddened and upset the child.
Mother asked the child to lie and not listen to the Department or her caregiver. The Department, caregiver, and child were concerned that mother called the child when mother was under the influence of drugs and alcohol. The child and caregiver created a safe word that allowed calls to end prematurely. During the recent period of supervision, most calls ended early.
As of December 31, 2020, the child requested to not have in-person visits with mother because she did not feel safe with mother's behavior. The child also did not want to have video calls with mother. Mother smoked cigarettes and drank alcohol during video calls. The child requested one monitored telephone call per week with mother.
Father continued to violate the juvenile court's order by allowing mother to participate in his visits with the child. He took the child to mother's home and encouraged the child to lie about the unauthorized contact with mother.
The child reported that father did not talk to her very much and displayed little to no affection during visits. She did not spend much time alone with father. Father could be very easy going, but got angry easily and scared her. Father yelled often, causing the child to cry. She described multiple times when father did not pay attention to her or her safety. In their most recent visit, father made her feel bad about revealing that her parents were visiting her together. She reported that father was angry and yelled at her because she told the truth. The child believed father was angrier when he was with mother. She stated she wanted to have visits with father, but only with a monitor for one or two hours per week "'if he is nice and listens.'"
Q. Mother's January 21, 2021, Emergency Walk On Request
On January 21, 2021, mother filed an emergency walk on request to restore her FaceTime visits with the child. The Department opposed mother's request. It stated the child had consistently refused to have FaceTime or video chats with mother since December 25, 2020. The child was not comfortable with such visits as mother smoked and drank alcohol during them. Mother also asked the child to walk away from the caregiver so that the visits could be unmonitored.
On February 16, 2021, the juvenile court granted mother's request to restore her FaceTime visits with the child. It ordered the Department to have a staff member monitor the visits.
R. February 16, 2021, Last Minute Information for the Court
In a February 16, 2021, Last Minute Information for the Court, the Department reported that there was no in-person or video contact between mother and the child from January 6, 2021, to February 10, 2021, because the child refused to visit with mother. During roughly the same period, there were no visits with father, apparently because father refused to accede to the child's request that visits be monitored.
The child did not want in-person visitation with mother or father. Mother and father yelled and fought a lot when the child was present. She felt like she was in the middle when her parents fought. The child and the caregiver reported to the social worker that mother drank alcohol and smoked cigarettes during the video calls. The caregiver stated that mother appeared under the influence of alcohol during video calls.
S. March 8, 2021, Last Minute Information for the Court
In a March 8, 2021, Last Minute Information for the Court, the Department reported that mother and father had existing visitation schedules, but the child refused visitation. The child reported, "'I don't feel that my mom and dad are doing what they are supposed to during visits. . . . My mom and dad will always have visits together at my mom's house, and they are not supposed to do that . . . . My parents always tell me not to tell on them.'"
The child continued, "'My mom and dad scare me. I feel like they are going to be mad because now everyone knows the truth. And I am tired of lying for them. And now they are calling me the liar and making me look like I'm the bad one.'" According to the child, mother and father drank alcohol and smoked during video calls. The child had begun to display "anxious" behaviors on or around the time of her phone calls with mother and father.
During a February 24, 2021, phone call, mother asked the child why she was refusing to visit. Mother repeatedly called the child a liar, said she was mean for refusing to visit, and yelled and used profanity. The caregiver had to intervene.
In a March 3, 2021, phone call, mother called the child a liar and said "'this was all [the child's] fault for telling on them.'" The child asked mother why she was in child care if mother loved and took good care of her. Mother yelled and screamed at the child.
The next day, the child told the social worker that she thought mother would try to do something bad to her, her caregiver, or the social worker. She believed that if her parents could not get her back through juvenile court proceedings, they would make it hard for her to be with anyone else.
The child refused visits with mother and father from the middle of February to the beginning of March 2021.
Around December 2020, the Department connected the child with Wraparound services. Mother and father were contacted and asked to participate with the team on the child's behalf. They refused.
T. March 11, 2021, Hearing on Mother's Section 388 Petition and Review of Permanent Plan
At the March 11, 2021, hearing on mother's section 388 petition and review of permanent plan, mother testified that since the juvenile court sustained the section 300 petition, there had been no domestic violence incidents with father or anyone else, she was sober, and she had not used any illegal drugs or alcohol. She was attending a virtual Alcoholics Anonymous-like program.
Mother had been unable to drug test for the prior six months because she could not afford to and due to the Corona virus. If the juvenile court granted her additional reunification and ordered drug testing, she would be willing to drug test.
On July 10, 2018, mother completed the Cri-Help residential substance abuse program. She had been attending individual counseling once a week and was currently attending once a month.
Mother denied that she ever yelled at the child during a visit. When asked if she accused the child of lying during a visit, mother responded that when the child said that father brought the child to mother during visits-which never happened-she told the child to "'tell mommy the truth, '" and the child confessed that she had lied. Mother asked the child why she had lied and the child responded that she thought she would get to come home faster.
Mother denied that she used alcohol or smoked during virtual visits with the child. Mother was concerned that the social worker was telling her to say those things. In addition to requesting visitation and family reunification services, mother wanted a new social worker who would not intimidate the child or speak ill of the child's parents.
Mother believed it was in the child's best interest to reunify with her because they had a good bond, the child knew how much mother loved her, and the child called mother her best friend.
The juvenile court asked mother about her participation in her 12-step program. Mother responded, "I am working currently always 8 through 12." The court asked if mother could explain step seven as she must have completed it recently. Mother responded, "I have been working on it, but I haven't read the step." Mother spoke with her sponsor twice a day.
Mother's counsel argued the juvenile court should grant mother's section 388 petition because there had been a change in circumstances as "mother was able to articulate today her tools for sobriety. She does the A.A. online meetings. She is in 12-steps. She speaks with a sponsor twice a day. She articulated her support system. And she has done the Cri-Help residential program. She is sober at this time." Mother had not been testing only because she could not afford it. She took responsibility for the domestic violence with father.
Mother's counsel argued that the changes requested in mother's section 388 petition were in the child's best interest because the child had said in the past that she loved mother, mother testified the child loved and was excited to see her, and mother and the child had a strong bond. Mother had been fighting for the child, and it was in the child's best interest to be removed from foster care and placed in mother's home.
The juvenile court denied mother's section 388 petition. The court acknowledged that mother had participated in services, but found that she had not benefited from them. Mother believed that everyone was lying about her-the child, the caregiver, and the social worker. The court found the child and social worker were credible, but mother was not.
Further, the juvenile court was concerned, based on the caregiver's reports, that mother was showing up "under the influence." It also found that mother and father had not made progress "in the domestic violence" as they continued to violate the court's orders about separate and monitored visits and argued in front of the child.
The juvenile court found that there had not been a change in circumstances-mother had continued in programs, but she had not changed. It further found that the proposed order was not in the child's best interest as the visits were causing the child a lot of anxiety.
After addressing mother's section 388 petition, the juvenile court asked whether it had to address father's reunification services. The Department's counsel responded, "Your Honor, I don't believe that is on calendar today. I believe it is just the R.P.P. [(review of permanent plan)] and mother's services and mother's 388." The court acknowledge that the matter had been called for a review of permanent plan hearing, but stated that at such a hearing it appropriately could address whether to terminate the services it ordered as part of father's successful section 388 petition. The Department's counsel agreed. Father's counsel objected, stating that family reunification and mother's section 388 petition were on calendar, but whether to terminate father's reunification services was not.
The juvenile court then turned to "the visitation issue" and asked the child's counsel for her position. The child's counsel asked the court to make a detriment finding as to both parents regarding visitation based on her argument in connection with mother's section 388 petition and the most recent Last Minute Information for the Court. She argued that the child did not enjoy the visits and recently had refused visits as they were "so anxiety inducing."
The child's counsel stated she had earlier addressed mother's detrimental visits with the child. As for visits with father, the child refused visits on February 28 and March 7, crying because she feared visiting with father. The child's fear was related to the parents violating court orders, telling the child to lie, and becoming upset with her when she told the truth. The child had been "extremely clear" that visits with father were not good for her and she did not want to participate in them. Also, father refused to participate in Wraparound services and the child's Wraparound team made clear that visits needed to be limited or stopped.
Mother's counsel asked the juvenile court to deny the child's counsel's request to terminate visitation. Counsel stated that the social worker had not been helping mother and the court should disregard the social worker's reports about mother's visits. Instead, the court should accept mother's testimony about the visits "and the fact that none of this is true and that this child is being brainwashed and is caught in the middle of the [Department]. And this is what is causing [the child's] issues, not . . . mother's behavior." According to mother's counsel, the Department was "actively thwarting" mother's contact with the child and coaching the child about what to say about her desire for contact with mother.
Father's counsel agreed with mother's counsel, stating that the Department had done "everything to sabotage this family." He argued that the Department had inappropriately delegated to the child whether visits would take place. There had been no indication from a psychiatrist or social worker that the visits were detrimental and no physical evidence of detriment such as the child shaking or breaking out in hives.
The Department's counsel asked that father's family reunification services be terminated. Counsel noted that father was entitled to six months of family reunification, the juvenile court had ordered family reunification on January 29, 2020, over a year prior, and the child had not been returned to father. Because reunification had not occurred within six months, family reunification had to be terminated. The court stated, "That is part of an R.P.P. hearing," and asked the Department's position on terminating mother's and father's visitation.
The Department's counsel argued that there was detriment to the child-she had expressed numerous times that she did not want to visit either parent. The child had been "astute enough" to tell when mother had been under the influence.
The juvenile court terminated visitation for mother and father, finding by clear and convincing evidence that the visits were detrimental as the parents continued to traumatize and re-traumatize the child. The court stated, "The parents are continuing to engage in the very conduct that was sustained initially in the original petition, and they are re-traumatizing [the child.] [¶] I don't have to find that [the child's] mental health is deteriorated to the degree that she has to be hospitalized or needs to be medicated or things like that. She is a fairly resilient little girl. There are many other children who wouldn't be this resilient. She's on the cusp. She is on the brink of really being pushed too far mentally and emotionally. [¶] This isn't a case of just unruliness because the child decided she doesn't want to visit."
The juvenile court found father and mother were not credible. It further found it implausible that the child would make up statements about how mother acted during visits, that she was afraid of father, or that mother and father fought in front of her.
Moreover, father violated the juvenile court's order by allowing mother to have unmonitored visits.
III. DISCUSSION
A. Mother's Section 388 Petition
Mother contends the juvenile court's denial of her section 388 petition was a mistake of law that "rubber-stamped" the Department's "running havoc of mother's fundamental and state rights to have her court-ordered visits" and an abuse of its discretion. The court properly denied mother's section 388 petition.
1. Legal Principles and Standard of Review
"Section 388 accords a parent the right to petition the juvenile court for modification of any of its orders based upon changed circumstances or new evidence. [Citations.] To obtain the requested modification, the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478, fn. omitted.) "The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' [Citation.]" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) We review a juvenile court's denial of a section 388 petition for an abuse of discretion and its factual findings for substantial evidence. (In re J.M. (2020) 50 Cal.App.5th 833, 846.)
2. Analysis
Mother identified two changes in circumstances that she contended supported her section 388 petition: (1) she had taken steps to resolve her substance abuse and was sober, and (2) she had resolved her domestic violence issue with father. The juvenile court found there were not changed circumstances. Substantial evidence supported the juvenile court's finding.
The child and her caregiver consistently reported to the social worker that mother appeared under the influence of drugs and/or alcohol during video/telephone calls. The child reported that mother drank alcohol during FaceTime and video chats. Although mother claimed to be sober, she had not submitted to drug testing for the six months prior to the section 388 hearing. She also claimed to be attending a 12-step program, but was unable to articulate a step she recently completed.
Mother admitted being in an ongoing "tumultuous" relationship with father and that she remained in constant communication and contact with him. Around July 2020, mother and father engaged in verbal altercations that resulted in a police response. Despite a court order forbidding it, mother visited the child with father. According to the child, mother and father yelled and fought a lot when the child was present.
Mother claimed the changes requested in her section 388 petition were in the child's best interest because the child loved mother, they had a strong bond, and mother had fought for the child. The juvenile court found the proposed changes were not in the child's best interest. Substantial evidence supported the court's finding.
Mother's visits with the child were detrimental and deteriorating. Mother told the child to lie about father bringing the child to see mother during visits in violation of the juvenile court's order. And when the child disclosed those visits, mother accused the child of lying. At the end of December 2020, the child told the social worker that she was afraid of mother and did not want to have in-person visits with her because mother was always mean, angry, and yelled at everyone. The child also did not want to have video visits with mother as mother drank alcohol during the visits. Since the end of December 2020, the child refused to have any visits with mother. During a February 24, 2021, phone call, the child's caregiver had to intervene when mother berated the child for refusing to visit. The visits with mother caused the child anxiety.
Because mother failed to show either a change in circumstances or that her proposed new order was in the child's best interest, the juvenile court did not make a mistake of law or abuse its discretion when it denied mother's section 388 petition.
B. Mother's Visitation Claims
Mother claims the juvenile court's order terminating her visitation with the child was a violation of due process, a mistake of law, and unsupported by evidence of detriment. The court did not err.
1. Legal Principles and Standard of Review
"'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' [Citation.] A parent has a right to due process in a juvenile dependency proceeding. [Citation.]" (In re A.S. (2012) 205 Cal.App.4th 1332, 1342.) We review a procedural due process claim de novo. (Severson & Werson, P.C. v. Sepehry-Fard (2019) 37 Cal.App.5th 938, 944.)
"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. [Citations.] Forfeiture, also referred to as 'waiver,' applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. [Citations.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A party forfeits, and may not raise on appeal, a claimed due process violation when the party failed to raise it in the juvenile court. (Id. at p. 222; Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149 [mother waived lack of notice argument by failure to object in the juvenile court] (Marlene M.); In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152 [father waived lack of notice assertion by failing to object in the juvenile court]; In re Levi U. (2000) 78 Cal.App.4th 191, 201 [due process claim waived by failure to object in the juvenile court]; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198, 1200 [lack of notice waived when the parent opposed proceeding on the merits].) "Although forfeiture is not automatic, and the appellate court has discretion to excuse a party's failure to properly raise an issue in a timely fashion [citation], in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion 'should be exercised rarely and only in cases presenting an important legal issue.' [Citation.]" (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Generally, in determining whether to terminate a parent's right to visitation with a child, the juvenile court is required to make a finding that further visitation would be detrimental to the child. (See In re S.H. (2003) 111 Cal.App.4th 310, 317, fn. 9; In re Manolito L. (2001) 90 Cal.App.4th 753, 759-760; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.) We review a juvenile court's visitation order for an abuse of discretion (In re R.R. (2010) 187 Cal.App.4th 1264, 1284) and its finding that visitation would be detrimental for substantial evidence (In re A.J. (2015) 239 Cal.App.4th 154, 160).
2. Analysis
a. Due process
Mother claims the juvenile court violated her procedural due process rights by terminating her visitation with the child without providing notice that it would consider terminating visitation at the March 11, 2021, hearing. If mother had notice, she could have requested that the child testify and she could have produced evidence "tailored to th[e] issue."
At the March 11, 2021, hearing, the child's counsel asked the juvenile court to make a detriment finding as to mother's and father's visitation with the child. Mother's counsel did not object that mother had not received notice that the hearing would address the termination of her visitation. Instead, she addressed the issue on the merits. By failing to object and instead addressing the issue on the merits, mother forfeited appellate review of her due process contention. (In re Dakota H., supra, 132 Cal.App.4th at pp. 212, 221-222; Marlene M., supra, 80 Cal.App.4th at p. 1149; In re Lukas B., supra, 79 Cal.App.4th at p. 1152; In re Levi U., supra, 78 Cal.App.4th at p. 201; In re Gilberto M., supra, 6 Cal.App.4th at pp. 1198, 1200.)
b. Merits
Substantial evidence supported the juvenile court's finding of detriment. As we explained above in our discussion of mother's section 388 petition, substantial evidence demonstrated that mother's visits with the child were detrimental and deteriorating. Accordingly, the court did not make a mistake of law or abuse its discretion when it terminated mother's visitation with the child.
C. Father's Visitation Claim
Father claims the juvenile court violated his right to due process when it terminated his visitation with the child at the March 11, 2021, hearing because he was not given notice that the hearing would address termination. Had notice been given, father argues, he could have opposed the termination of his visitation by calling witnesses-including the child and himself- and presenting evidence of his strong relationship with the child.
As discussed above, at the March 11, 2021, hearing, the child's counsel asked the juvenile court to make a detriment finding as to mother's and father's visitation with the child. Father's counsel did not object that father had not received notice that the hearing would address the termination of his visitation. Instead, he addressed the issue on the merits. By failing to object and instead addressing the issue on the merits, father forfeited appellate review of his due process claim. (In re Dakota H., supra, 132 Cal.App.4th at pp. 212, 221-222; Marlene M., supra, 80 Cal.App.4th at p. 1149; In re Lukas B., supra, 79 Cal.App.4th at p. 1152; In re Levi U., supra, 78 Cal.App.4th at p. 201; In re Gilberto M., supra, 6 Cal.App.4th at pp. 1198, 1200.) Father does not alternatively challenge the merits of the court's order terminating his visitation.
IV. DISPOSITION
The orders are affirmed.
We concur: BAKER, Acting P. J., MOOR, J.