Filed 10/6/23 In re F.K. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re F.K., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E080747
Plaintiff and Respondent, (Super.Ct.No. J277043)
v. OPINION
S.L.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Konrad S. Lee, 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.
1 In 2017, minor F.K. was removed from his parents’ custody. Subsequently,
neither parent was able to reunify with him and he was placed in a group home under a
permanent plan of legal guardianship. In 2021, the juvenile court terminated parental
visitation after finding it to be detrimental. On January 27, 2023, minor’s counsel
informed the court that minor asked about visits with the parents. S.L. (mother) was not
present, the court was unable to contact her by phone, and her attorney offered no
comment in response to F.K.’s inquiry. With no further discussion on this issue, the
court adopted the findings and orders set forth in the November 23, 2022 review report
prepared by San Bernardino County Children and Family Services (CFS).
On appeal, mother contends (1) the juvenile court erred by failing to order, sua
sponte, an investigation into minor’s request for parental visitation before affirming the
finding that it was detrimental, and (2) minor’s counsel was ineffective because she
misunderstood the law when she represented to F.K. that visitation could only resume if
his parents petitioned the court and proved visitation to be in his best interests. We reject
mother’s contentions and affirm.
I. PROCEDURAL BACKGROUND AND FACTS
The present appeal incorporates the records from prior appeals: case
Nos. E071128, E074453, E076046, E076625, E076900, E076901, and E077980. (Cal.
Rules of Court, rule 8.147(b)(1).) The procedural and factual background for the
dependency action is detailed in the opinion of the Court of Appeal, First Appellate
District (see In re F.K. (Sept. 20, 2019, A154789) [nonpub. opn.]) and in this court’s
prior opinions (see In re S.K. et al. (Oct. 20, 2020, E074453) [nonpub. opn.]; In re A.M.
2 (Jan. 19, 2022, E076625) [nonpub. opn.].) On our own motion and to compile a coherent
narrative, we take judicial notice of these prior nonpublished opinions. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a); Cal. Rules of Court, rule 8.1115(b)(1).)
A. Initiation of F.K.’s Dependency in Sonoma County.
F.K. (born in 2010) is the oldest of mother’s four children.1 (In re A.M., supra,
E076625.) In February 2017, the Sonoma County Human Services Department
(SCHSD) initiated dependency proceedings pursuant to Welfare and Institutions Code2
section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of sibling) and removed
F.K. and S.K. (the siblings) from mother’s care based on her failure to treat F.K. with
lifesaving heart surgery and to provide S.K. with necessary dental and medical treatment.
(In re S.K., supra, E074453.) Three months later, mother gave birth to the sibling’s half
brother, A.M. (Ibid.) By October, SCHSD amended the petition to include A.M. and to
allege under section 300, subdivision (d), that the siblings had been sexually abused and
exposed to multiple pornographic films depicting child on child sexual encounters. (In re
S.K., supra, E074453.)
The siblings confirmed their exposure to and participation in sexual acts.
(In re S.K., supra, E074453.) F.K. displayed inappropriate age-related behavior,
including excessive masturbation, stating he wanted to see the “tooshies” (his name for
1 Mother has four children: F.K. and S.K. with father C.K., and A.M. and M.M. with father M.M. Neither father is a party to this appeal and, therefore, will be discussed only if necessary.
2 Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
3 vagina) of S.K. and other young girls, and he orally copulated and touched S.K.’s
“tooshie.” (Ibid.) S.K. told the social workers that F.K. had kissed, licked, and sucked
on her “tooshie” multiple times. (Ibid.) F.K. again stated that he got the idea of putting
his mouth on S.K.’s privates from movies he watched at mother’s house, and he had seen
a child “doing sex” to S.K. by “pushing the front privates together” during a visit to the
Sundance film festival with his biological father. (Ibid.) Mother denied possessing
pornography and exposing the children to any sexually explicit material. (Ibid.)
In June 2018, mother and M.M. (A.M.’s biological father) moved to San
Bernardino County; F.K. was residing in a group home, which offered a residential
treatment and educational program. (In re S.K., supra, E074453.) Mother started a sex
offender specific therapy but continued to deny that F.K. had been sexually abused by
herself and others. The social worker expressed concern that mother “allowed her
children to be sexually abused, allowed the abuse to continue through her denial, and
ultimately participated in that abuse along with [C.K. (siblings’ biological father) and
M.M.], causing incredible harm and trauma which she now refuses to acknowledge and
help heal.” (In re A.M., supra, E076625.) On December 19, 2018, the Sonoma County
Juvenile Court terminated reunification services and set a section 366.26 hearing as to the
siblings only. (In re S.K., supra, E074453.)
B. Transfer of Dependency Proceedings to San Bernardino County.
In 2019, Sonoma County transferred the dependency of all three minors to San
Bernardino County. (In re A.M., supra, E076625.) Mother participated in visitation and
attended individual therapy and sex offender specific counseling. Although CFS initially
4 set a goal of adoption, F.K. had experienced nine changes in placement. (In re S.K.,
supra, E074453.) He struggled with behavioral and emotional dysregulation, had
difficulty focusing and paying attention, would become oppositional when given
directions, tended to initiate conflict with his peers and staff, required high staff support
to manage his behavior, and continued to engage in power struggles seeking to control
his environment. Although he could verbalize his feelings, he would become
overwhelmed and act out in anger. (Ibid.) Since the transfer to San Bernardino County,
F.K. had been referred to therapeutic services. (Ibid.) In October 2019, mother’s fourth
child, M.M. was born with hypoxia. (In re A.M., supra, E076625.) CFS filed a petition
under section 300, subdivisions (b), for medical neglect, and subdivision (j), for the risk
of sexual abuse similar to the siblings. (Ibid.)
On November 5, 2019, mother requested increased and unmonitored visitation of
the siblings and A.M., along with the reinstatement of her reunification services in order
to transition them to her home. (In re S.K., supra, E074453.) She attended a sexual
abuse program to address what had happened to her as a child, how it had influenced her
as a mother, and to fully understand and prepare for the safe return of the siblings and
A.M. (Ibid.) The social worker acknowledged mother’s participation in counseling,
parenting classes, and therapy, but reported that she “‘has not made the beneficial
changes necessary to protect her children.’” (Ibid.) Mother “‘minimize[d] her
involvement and lack of protective capacity,’” “‘failed to take responsibility’” for her
children’s dental and medical neglect, and “minimize[d] the sexualized behaviors with
the children.” (Ibid.) The juvenile court denied mother’s request based on insufficient
5 evidence of a substantial change and no prima facie showing the proposed change is in
the children’s best interests. (Ibid.)
By November 12, 2019, CFS no longer recommended adoption given the siblings’
behaviors. (In re S.K., supra, E074453.) Instead, it recommended a planned permanent
living arrangement (PPLA) with a goal of adoption. (Ibid.) Mother still minimized the
sexualized behaviors with the siblings and denied that she or any parent perpetrated
sexual abuse upon them. (In re A.M., supra, E076625.) The juvenile court adopted the
recommended PPLA for the siblings and continued supervised monthly visitation.
Mother appealed; we affirmed. (In re S.K., supra, E074453.)
In 2020, mother continued to have monthly supervised visits with F.K. who was
receiving wraparound services. Her counseling progress report noted that she was
engaged; however, she did not discuss allegations of sexual abuse and claimed the
children must “have learned that in the foster care system.” (In re A.M., supra,
E076625.) The wraparound providers denied mother’s request to participate in F.K.’s
meetings because they found her contact with him to be a trigger that affected his overall
emotional well-being. In October, the juvenile court terminated her reunification services
and visitation as to A.M. and M.M. In 2021, it terminated visitation with S.K. and her
parental rights to A.M., M.M., and S.K. (In re A.M., supra, E076625.)
In its status review report, filed November 6, 2020, CFS recommended F.K.
continue to receive permanent planning services with a permanent plan of legal
guardianship. He struggled with encopresis and enuresis during both night and day,
displayed behaviors of hyperactivity and impulsivity, and was easily enraged. Following
6 visits with mother, F.K.’s negative behaviors increased. The wraparound team continued
to find her participation in child and family team meetings was not in his best interest
because it affected his overall stability. The juvenile court set a section 366.26 hearing
with a plan of legal guardianship with his caregiver.
According to the status review report filed April 27, 2021, F.K. was moved to
Father’s Heart Ranch Group Home for throwing a rock at his caregiver and threatening
and attacking another child. Nonetheless, the foster mother remained part of his support
system and F.K. hoped to return to the foster home after working on his behaviors.
Following visits with mother, F.K.’s negative behaviors increased and he displayed
emotional dysregulation. During the March visit, mother told him that he did not have to
talk to others if he did not want to, but that he needed to be honest with her and talk to
her. According to F.K.’s therapists, the visits hinder his emotional stability and interfere
with his ability to process the trauma. Thus, CFS recommended the juvenile court find
visitation with mother is detrimental to the child. A contested hearing on CFS’s
recommendation was set.
On October 6, 2021, CFS provided additional information (6.7 report) to the
juvenile court, specifically noting that F.K. “verbalize[d] that he wants to continue to
have visits with his mother.” However, CFS remained concerned about the emotional
disturbance the visits caused the child. The wraparound team reported that F.K. “displays
resistance when discussing difficult topics during his individual sessions, [he] will
gradually express himself then shuts down when he is tasked to identify and explore any
[of] his triggers. Additionally, [he] is observed to become more anxious, irritable, and
7 disrespectful before and after visits with his mother.” “After the visits, [F.K.] tends to
have an increased amount of aggression toward others, in which at times becomes
physical and creates a safety concern for himself and others.” At their appearance on
October 6, F.K.’s counsel requested temporary termination of mother’s visitation pending
the hearing to permanently terminate visits. Mother’s counsel objected, arguing that “[i]t
appears [the child] wants to see her.” After finding a correlation between mother’s visits
and F.K.’s negative behaviors, the juvenile court granted the request but authorized CFS
“to reinstate appropriate visits once we can stabilize the rest of the child’s behaviors.”
On November 22, 2021, CFS provided further additional information (6.7 report)
to the court regarding F.K.’s progress since visitation with mother was suspended. CFS
stated, “On 11/04/2021, it was reported that the child has made progress with his
behaviors over the past month and half. [CFS] has factored this positive change in
behaviors is attributed to the halting of visits with mother.” It was further reported that
after mother’s visits with S.K. were terminated, mother arranged a “visit and drop off
gifts” with S.K.’s foster mother. As a result of this contact, S.K.’s progress regressed and
she “verbalized that she feels pressured to lie about her concurrent home.” The social
worker opined that mother impacts her “children in a negative aspect.”
On December 2, 2021, CFS submitted several reports and attachments into
evidence. Mother’s counsel submitted the service logs from April 1 to 9, 2021, and
October 19, 2021. Noting that F.K. wanted to see mother, counsel argued “even though
there’s a recommendation of finding visits detrimental[,] . . . based on the evaluations and
[F.K.] being on psychotropic meds and stuff, I think [his] behavior, while they talk about
8 the behavior before and after visits with Mother, [his] behavior is such I don’t think it is
such that Mother’s visits are the primary cause of the behavior problems. And so from
that standpoint, we’re asking the Court not to find a detriment finding regarding
visitation.” Mother was willing to participate in conjoint therapy and counsel opined that
“visitation would be possibly helpful for [F.K.] if it is done in a therapeutic setting.”
In reply, F.K.’s counsel argued the minor’s behavior supports a finding of
detriment. She asserted that mother is manipulative, “has no concern over the safety of
her children or what is best for them[,]” and her “request for visitation is about her and
what she wants.” Counsel had spoken with Father’s Heart Ranch and was informed that
F.K.’s behavior has stabilized, he has continued contact with his prior caregiver with
whom he resided “for quite some time until his behaviors deteriorated from contact with
Mother.” CFS concurred with minor’s counsel’s comments.
The juvenile court adopted the findings and orders as modified and listed in the
October 6, 2021, 6.7 report, and found visitation with mother to be detrimental and not in
the best interest of the child. It added, “[R]egardless of whatever the child says [he]
want[s], [he doesn’t] know what is good for [himself], and that is the case here.” When
F.K.’s counsel asked whether the court could authorize the mother to contact the minor
via letter or through the social worker, the court replied, “Detriment is detriment is
detriment. The answer is, ‘no.’ ‘No.’ ‘No.’”
In the status review reports filed May 18 and November 10, 2022, CFS stated the
permanent plan of legal guardianship continues to be appropriate for F.K. F.K. was
diagnosed with Attention Deficit Hyperactivity Disorder predominantly hyperactive type
9 and Oppositional Defiant Disorder. His behaviors (easily angered and defiant) interfere
with personal relationships, education goals, and social activities. “In therapy, [he] is
guarded and unwilling to discuss his sexual abuse trauma that has taken place.” He was
residing at Father’s Heart Ranch, his 10th placement, where he felt safe. Nonetheless, he
continued “to struggle with appropriate boundaries, aggression toward others, anger
outburst, and defiance.” The facility continued to provide services to assist him with
“identifying his triggers, teaching him de-escalation techniques and learning effective
coping skills. Although he had no contact with mother, F.K. was having telephone
visitations with his previous foster mother, whose home he would like to return to;
however, he was not “ready for a lower level of care.”
At the permanent plan review hearing on January 27, 2023, F.K.’s counsel stated,
“I am submitting on the recommendation. I did speak with my client this morning. He
did ask about visits with the parents. The Court previously made a detriment finding. I
did tell him that the parents would have to file a motion to have the Court reconsider the
detriment finding. I did let Parents’ counsel know that, but at this point, we don’t have
any information to support a change without any information for the parents.” When the
juvenile court asked if anyone else had anything to say, mother’s counsel replied, “No,
your Honor.” The court attempted to engage the minor in a discussion about his
circumstances, but did not ask about his desire or interest in visiting his parents. The
court continued to find visitation between minor and mother to be harmful, adopted the
findings and orders listed in the November 23, 2022, status review report, and set another
permanent plan review hearing for July 21, 2023.
10 II. DISCUSSION
Mother raises two issues on appeal. She faults the juvenile court for failing to
order, sua sponte, an investigation into F.K.’s request for parental visitation prior to
affirming its detriment finding. Alternatively, she contends minor’s counsel was
ineffective because she misunderstood the law when she represented to F.K. that
visitation could only resume if his mother petitioned the court to change its prior order
and sustained her burden of proving that visitation was in his best interests. CFS argues
mother waived the claim of ineffective assistance of minor’s counsel by failing to raise it
below. We do not decide whether mother knowingly, intelligently, and voluntarily
waived any claim because, assuming without deciding that her arguments are preserved,
they fail on the merits.
A. Resuming Parental Visitation.
Mother faults the juvenile court for confirming its prior “order finding that
parental visitation was detrimental without first ordering, sua sponte, a detailed report
from [CFS] and the child’s therapist on . . . F.K.’s wishes and attitudes towards parental
contact.” She contends the court erred in failing to order an investigation into F.K.’s
request for parental visitation. Finding no error in the court’s action, we reject mother’s
contention.
According to mother, the juvenile court “had before it new evidence that the child
was asking about—and presumably wanting—contact with Mother and father.”
However, this was not new evidence. When CFS initially asked the court to determine
that parental visitation was detrimental to F.K., it also informed the court that the child
11 had “verbalize[d] that he wants to continue to have visits with his mother.” In
determining visitation with mother to be detrimental, the court acknowledged the child’s
wishes but found that he “[doesn’t] know what is good for [himself].”
On January 27, 2023, F.K. reiterated his prior statement concerning his wish to
visit mother. However, the evidence provided by CFS shows that he remained resistant
about discussing difficult topics, and visitation with mother exacerbated his negative
behaviors. There was no evidence that mother had undergone a change in her
manipulative behavior, or her refusal to acknowledge her role in F.K.’s sexual abuse, to
warrant an investigation into the benefits of resuming her visitation. Nonetheless, she
states that “a year on—without maternal contact—the child’s behavior problems
continued.” Since F.K.’s behaviors have existed from the inception of the dependency,
exacerbated around the time of his visits with mother, it is pure speculation to say that his
“acting out behaviors were because of NOT seeing Mother.”
In short, nothing in the record before this court leads us to conclude the juvenile
court erred in failing to order an investigation into F.K.’s request for parental visitation.
If the circumstances change or new evidence becomes available, section 388 provides
mother the right to petition the lower court for modification of its prior order terminating
parental visitation.
B. Ineffective Assistance of Counsel.
To establish ineffective assistance of counsel in dependency proceedings, mother
must establish both that her attorney’s representation was deficient and that this
deficiency resulted in prejudice. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) To
12 prove deficient representation, she must show that counsel’s deficiency involved a crucial
issue and cannot be explained based on any knowledgeable choice of tactics. (People v.
Loza (2012) 207 Cal.App.4th 332, 351.) Where “counsel’s trial tactics or strategic
reasons for challenged decisions do not appear on the record, we will not find ineffective
assistance of counsel on appeal unless there could be no conceivable reason for counsel’s
acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Here, F.K.’s counsel’s reason for failing to argue in favor of resuming parental
visitation was stated on the record. Counsel informed the court that F.K. had asked about
visiting his parents, but counsel submitted on CFS’s recommendation because “at this
point, we don’t have any information to support a change without any information for the
parents.” In contrast, mother’s counsel was silent. However, he may have tactically
decided not to object for the same reason. We note that mother does not challenge on
appeal the merits of maintaining the no parental visitation order but only the failure of the
juvenile court to order, sua sponte, an investigation into F.K.’s request for parental
visitation. Based on this record, mother cannot establish that counsel was ineffective in
failing to argue in favor of resuming parental visitation.
13 III. DISPOSITION
The juvenile court’s findings and orders at the January 27, 2023 hearing are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.