California Court of Appeal Sep 23, 2013 No. D063861Unpublished
Filed 9/23/13 In re K.L. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.L., a Person Coming Under the Juvenile Court Law. D063861 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1058D) Plaintiff and Respondent,
v.
RICARDO L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Ricardo L. seeks review of a juvenile court order directing the San Diego County
Health and Human Services Agency (Agency) to supervise visitation with his three-year-
old daughter, K.L., once a month. Ricardo is incarcerated pending trial on charges that
he committed sexual acts with K.L.'s eight-year-old half sister. He contends his statutory
and constitutional rights were violated when the juvenile court limited his visitation with
his daughter to once a month, and any reduction in visitation is not supported by
Ricardo and Maria G. are the unmarried parents of K.L., who is now three years
old. Maria also has three older children, a son and two daughters. Ricardo and Maria
separated in November or December 2011.
In January 2012, Maria's eight-year-old daughter, V.M., disclosed that Ricardo
raped and sodomized her on several occasions, starting when she was seven years old.
During the course of the sexual abuse investigation, the Agency learned that Ricardo
often hit the children, including two-year-old K.L. Maria reported ongoing incidents of
domestic abuse.
The Agency detained the children in protective custody and filed petitions under
Welfare and Institutions Code section 3001 on their behalf. The juvenile court found that
K.L. had suffered, or was at substantial risk of suffering, serious physical harm from
1 Further statutory references are to the Welfare and Institutions Code. 2
physical abuse by her father.2 (§ 300, subd. (a).) At the dispositional hearing, the
juvenile placed K.L. in foster care and ordered a plan of reunification services for
Ricardo and Maria. Ricardo's plan included supervised visitation services with K.L.
In August 2012, the Agency reported that Ricardo consistently visited K.L.
According to the foster mother, K.L. returned from the visits in good spirits and was
always eager and happy to see her father. Ricardo appeared to be appropriate with K.L.
and interacted well with her. He brought food, clothing and toys for K.L. to the visits.
On September 6, 2012, San Diego police arrested Ricardo and charged him with
four counts of committing a sex crime with a child age 10 years or younger. (Pen. Code,
§ 288.7, subds. (a) & (b).) Ricardo's bail was set at $500,000. He was not eligible for
release due to his immigration status.
At the six-month review hearing, which was held on September 12, 2012, the
juvenile court ordered that Ricardo may have supervised visits with K.L. in accordance
with the rules of the facility in which he was incarcerated. Because of Ricardo's status as
a protective custody inmate, he was not able to participate in court-ordered services or
have contact visits with K.L. Ricardo had one visit with K.L. in November 2012, and
two visits per month in February and March 2013.
According to the social worker, K.L. responded well to her father but it was
difficult for him to keep her attention through the glass partition. She did not want to
2 K.L.'s older half siblings were adjudicated dependents of the juvenile court on grounds of failure to protect, sexual abuse and risk of sexual abuse. (§ 300, subds. (b), (d) & (j).) They were placed with their paternal grandparents. 3
hold the telephone to speak to Ricardo. K.L. would become restless during the visits,
which lasted from 20 to 30 minutes.
Maria complied with her case plan. In February 2013, the Agency placed K.L. in
Maria's care on a 60-day visit. At the end of March, the social worker made plans to
return Maria's son to her care. Maria's relationships with her two older daughters were
strained, but she continued to work toward family reunification with them.
The 12-month review hearing was held on April 12, 2013. Ricardo was present
and represented by his attorney. The juvenile court returned K.L. to Maria's care under a
plan of family maintenance services and ordered that the placement remain confidential.
Ricardo requested enhancement services3 and a calling card, and asked that his visits
with K.L. occur as frequently as possible.
Maria was uncomfortable supervising K.L.'s visitation with Ricardo. She did not
want her address and telephone number disclosed to him. The Agency asked the court
not to require the social worker to supervise visits because the case was no longer in
reunification, and the Agency wanted to decrease its involvement in the case.
Ricardo said he was not opposed to a third party supervising visitation. He
objected to any reduction of his weekly visits with K.L. Ricardo argued his visitation
should not be reduced because there was no evidence to show that the visits were
3 "Enhancement services are child welfare services offered to the parent not retaining custody, designed to enhance the child's relationship with that parent." (Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1497, fn. 1.) 4
detrimental to K.L. and no one had filed a section 388 petition seeking to modify the
prior visitation order.
The juvenile court said Maria had the right, for her and her children's privacy and
protection, to refuse to facilitate contact and visitation between Ricardo and K.L.
Ricardo was entitled to have some visitation with his daughter. However, the court could
not order weekly visits because there might not be anyone available to facilitate them.
The court asked Ricardo to work with the social worker to identify a third party who
could assist with visitation and ordered the Agency to provide an ex parte report with
additional information about visitation. The court ordered the Agency to facilitate
visitation once a month. The court said it would set a special hearing if the information
in the ex parte report indicated the visitation order should be modified.
On May 2, the social worker reported that she met with Ricardo. He did not have
any family members who could facilitate visitation. He knew several former coworkers
who might be suitable but did not have contact information for them or his previous
employer. Ricardo said he would try to obtain that information.
The record does not indicate that a special hearing was set to address visitation.
Ricardo filed a notice of appeal on May 3, 2013.
DISCUSSION
A
Ricardo contends the Agency did not provide notice to him that it would raise the
issue of visitation at the 12-month review hearing, and the visitation order violated his
statutory and due process rights. He contends the juvenile court erred when it modified
5
visitation because the Agency did not comply with notice requirements under section
293, which require that the notice contain a statement regarding any change in custody or
status being recommended by the supervising agency. Ricardo states the court should
have required the Agency to file a section 388 petition to modify the previous visitation
order. He also argues the reduction in visitation is not supported by substantial evidence.
B
We are not persuaded by Ricardo's argument he did not receive adequate notice of
the proposed changes to his visitation schedule. Although Ricardo objected to the order,
he did not do so on the ground he did not receive proper notice under section 293.
Accordingly, he has forfeited his argument the Agency did not comply with notice
requirements under section 293. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222
[a party forfeits the right to claim error when he or she fails to raise the objection in the
trial court].)
Even if the issue were not forfeited, we would reject Ricardo's argument that his
statutory and constitutional rights to notice were violated. The record shows that Ricardo
mischaracterizes the manner in which the issue of visitation was raised at the 12-month
review hearing. The Agency did not propose a reduction in visitation at the 12-month
review hearing. Instead, during closing argument, Ricardo requested more frequent visits
and the use of a calling card to allow him to speak with K.L. Asked by the court to
respond, the Agency noted that Maria's address and telephone number were confidential
and she was uncomfortable supervising visitation. Further, because K.L. was in her
mother's care, the Agency wished to lessen its involvement in the case. It asked Ricardo
6
to identify any third parties who were willing to facilitate visitation. The record shows
that Ricardo received adequate notice of the 12-month review hearing, including notice
of K.L.'s return to her mother's care and a report detailing problems arranging visitation,
including Maria's reluctance to facilitate visitation.
C
Ricardo's argument that any reduction in visitation is not supported by substantial
evidence is wholly without merit.4 The trial court is afforded wide discretion to decide
the terms and conditions of visitation, and its determination will not be disturbed in the
absence of a manifest showing of abuse. (In re Marriage of Murga (1980) 103
Cal.App.3d 498, 504; see also In re S.H. (2003) 111 Cal.App.4th 310, 317 [visitation
orders must provide for flexibility in response to the changing needs of the child and to
dynamic family circumstances].)
4 The record does not support Ricardo's contention his visitation was reduced from once a week to once a month. A visitation order provides the Agency with "broad 'guidelines as to the prerequisites of visitation or any limitations or required circumstances.' " (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1377, quoting In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.) The previous visitation order stated Ricardo "may have supervised visits with the minor in accordance with the rules of his facility." It did not specify frequency of visitation. The record shows that after Ricardo was incarcerated, he had one visit with K.L. in November 2012. He then informed the foster mother he did not want visits. In December 2012 and January 2013, the social worker asked Ricardo to confirm his request. Ricardo indicated he wanted to visit K.L. When the social worker tried to arrange weekly visits, the detention facility would not allow Ricardo to have contact visits with K.L. On February 19 and 26, the social worker supervised visits between Ricardo and K.L., who were separated by glass and could speak only through a telephone. K.L. quickly became restless and the visits lasted only 20 to 30 minutes. There were two more visits in March. Thus the record shows that from early September 2012, when Ricardo was arrested, to the date of the 12-month review hearing, he had five or six visits with K.L. in an eight-month period. 7
The juvenile court was not responsible for the barriers to visitation caused by
Ricardo's incarceration on charges of raping and sodomizing an eight-year-old child, and
Maria's emphasis on protecting her and her children's privacy, and physical and
emotional safety. The court made a true finding that Ricardo had sexually abused K.L.'s
eight-year-old half sister V.M., including anal and vaginal penetration, oral copulation,
fondling her breasts and exposing her to pornography, and that another half sister was at
substantial risk of being sexually abused by Ricardo. If convicted of engaging in sexual
acts with V.M., Ricardo would serve a sentence of 25 years to life (Pen. Code, § 288.7,
subd. (a)) or 15 years to life (Pen. Code, § 288.7, subd. (b)). If released, he would be
deported. K.L. had been returned to her mother's care and the Agency was not required
to facilitate K.L.'s reunification with Ricardo.5 The detention facility did not allow
Ricardo to have contact visits with K.L., and she quickly became restless when Ricardo
tried to interact with her behind a glass panel. In view of the circumstances, the juvenile
court acted within its discretion when it ordered the Agency to facilitate visitation once a
month. Because the record would support a finding of no visitation, error, if any, is
harmless.
5 The court ordered a reunification case plan for Ricardo before he was arrested and incarcerated on charges he committed sexual acts with a child 10 years of age or younger. 8
DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
MCDONALD, J.
9
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in ordering monthly supervised visitation for an incarcerated parent, as the court properly balanced the parent's visitation rights against the child's safety, the mother's privacy, and the logistical constraints of the facility.
Issues
Whether the juvenile court violated the parent's statutory and due process rights by modifying visitation without proper notice.
Whether the juvenile court's visitation order was supported by substantial evidence.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court is afforded wide discretion to decide the terms and conditions of visitation, and its determination will not be disturbed in the absence of a manifest showing of abuse.”
“In view of the circumstances, the juvenile court acted within its discretion when it ordered the Agency to facilitate visitation once a month. Because the record would support a finding of no visitation, error, if any, is harmless.”