In re K.L.
Filed 9/23/13 In re K.L. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
RICARDO L.,
Defendant and Appellant.
D063861
(Super. Ct.
No. CJ1058D)
APPEAL from
an order of the Superior Court
of
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
violated when the juvenile court limited his visitation with his daughter to
once a month, and any reduction in visitation is not supported by substantial
evidence. We affirm the order.
FACTUAL AND
PROCEDURAL BACKGROUND
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 300
name="_ftnref1" title="">[1] on
their behalf. The juvenile court found
that K.L. had suffered, or was at substantial risk of suffering, serious
physical harm from physical abuse by her father.
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 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 services
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 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
modified 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. (
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 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.
title="">[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
310, 317 [visitation orders must provide for flexibility in response to the
changing needs of the child and to dynamic family circumstances].)
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.
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.
DISPOSITION
The order
is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
references are to the Welfare and Institutions Code.
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.
