Filed 7/1/21 In re K.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.L., JR. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E076207
Plaintiff and Respondent, (Super.Ct.Nos. J277652-J277655)
v. OPINION
K.L., SR.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Shobita Misra, under appointment by the Court of Appeal, for Defendant and
Appellant.
1 Michelle D. Blakemore, County Counsel and David Guardado, Deputy County
Counsel, for Plaintiff and Respondent.
Father K.L., Sr., appeals from an order made at an 18-month review hearing
(Welf. & Inst. Code,1 § 366.22), which he claims reduced visitation to his four biological
children. The trial court established jurisdiction over the four biological children of
father based on allegations of physical abuse, failure to protect, sexual abuse and abuse of
a sibling, and granted father weekly visits of two hours each. While the children were
placed with paternal grandparents, father enjoyed more liberal contact under the
supervision of his parents.
Eventually, despite father’s ongoing attempts to sabotage mother’s efforts at
resuming custody, the mother reunified with the children. At that point, the paternal
grandparents were no longer available to act as visitation monitors. Thus, at the
combined section 364/366.22 hearing, the court reinstated the prior order for supervised
visits, a minimum of once per week for two hours, with authorization to liberalize if
father found an approved monitor. Father appealed.
On appeal, father claims the trial court abused its discretion in reducing his visits
because there is insufficient evidence to support the court’s finding that more frequent
contact was detrimental to the children and that reducing visits was not in the children’s
best interests. We affirm.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
2 BACKGROUND
Much of the history of this case, father’s fourth appeal, is not necessary to the
issue presented on appeal, so it has been condensed. This family includes mother, A.L.,
who has not appealed, mother’s son P.G., from a prior relationship, father, K.L. Sr., I.L.,
an unrelated minor for whom father had been appointed legal guardian, and the four
biological children of A.L. and K.L., Sr.2 Because the four biological children have very
similar names with the same initials, when we need to refer to a particular child, we will
refer to them as K.L., Jr., K.L. the eldest son, K.L. second eldest son, and K.L. the
daughter.
In 2018, the San Bernardino County Children and Family Services agency (CFS),
intervened in the family. The original petition alleged excessive discipline and physical
abuse of I.L. and P.G., failure to protect, domestic violence between the parents, and risk
of harm due to sibling abuse. I.L. was father’s ward under a Probate Code legal
guardianship. Originally, all the children except for I.L., who is unrelated biologically to
mother or father, were maintained in mother’s care, insofar as she had moved out of the
family residence after the most recent incident of domestic violence. Placement was
conditioned on father not residing in the home and not having contact with the children
outside of CFS supervision.
Prior to the jurisdictional hearing, it was learned that I.L. had been sexually abused
by father, and the petitions were amended to add allegations of sexual abuse as to I.L.,
2 Mother did not appeal, and neither I.L. nor P.G. are involved in this appeal by father. Information pertaining to mother, I.L., and P.G. is provided for context, only.
3 with sibling abuse allegations for the other children. In February 2019, concerns about
mother allowing the children to have contact with the father arose and the social worker
became aware that father had coached the children not to speak with CFS workers. After
investigating further, the social worker saw mother’s car in father’s driveway, although
mother stated the children remained in the car as she went into the house to do laundry.
Father had maintained possession of the family residence after mother moved out.
As a result, in March 2019, the children were detained from mother and placed in
the home of the paternal grandparents. Following the detention, father was ordered to
move out of the family residence pursuant to a Family Law restraining order obtained by
mother, so that mother could move back into the home.
The jurisdictional hearing took place in April 2019. The court made true findings
on all the allegations of the petitions and declared all the children dependents of the court
under the provisions of section 300, subdivisions (a), (b), and (d). The court removed the
children from both parents and maintained them in the residence of the paternal
grandparents. Father was ordered to undergo a psychological examination, and family
reunification services were ordered for both parents. Father appealed the judgment, but
his appeal was dismissed pursuant to In re Sade C. (1996) 13 Cal.4th 952. (E072633, In
re K.L., et al.)
In October 2019, CFS submitted a six-month status review report, recommending
the children remain in their placement with paternal grandparents, but that the court
approve a 29-day visit with mother following four successful overnight and weekend
4 visits. Both parents had participated in court-ordered services and a psychological
evaluation of father had been conducted but the report was unavailable. Mother was
employed at two jobs and was no longer dependent upon father, who had moved out of
the family residence and into military housing.
At the six month review hearing held on October 23, 2019, the court ordered
unsupervised visits for mother and the matter was continued to monitor those visits
before considering an extended visit. In a follow up report, the social worker
recommended that P.G., K.L., Jr., and K.L. daughter be returned to mother’s custody
with family maintenance services. K.L. the eldest and K.L. the second eldest wished to
remain with their paternal grandparents.
The social worker sought another psychological evaluation of father because the
first evaluator did not have complete information about the jurisdictional bases.
Additionally, father’s therapist provided the social worker with a progress report
reflecting the opinion that father had successfully been treated and that the children could
be safely returned, based on his completion of the domestic violence related plan
requirements. The therapist informed the social worker that father had addressed all the
sustained allegations, but there was no evidence father had participated in services to
address the sexual abuse allegations that had been sustained.
In December 2019, the court ordered K.L., Jr., and K.L. the daughter (the two
youngest children) placed with mother on an extended visit, while the two older sons
remained placed with the paternal grandparents, pending the completion of the six-month
5 review hearing. On January 8, 2020, the contested six month review hearing resumed.
But on January 15, 2020, the court terminated the visit based on allegations mother had
used her father, uncle, and an adult daughter for childcare while she worked, although
none of the individuals had been screened by CFS.
Other referrals against mother also had been initiated by father, who alleged that
mother was associating with known drug users, that the two youngest children were left
unsupervised, that mother drank to excess, and that the children reported persons
smoking something that smelled weird in the home. On February 26, 2020, the two
youngest children were placed back with the paternal grandparents, where the two older
siblings remained placed, while the referral allegations were investigated.
By June 2020, as the twelve-month review approached, CFS reported that all the
prior reports were closed as unfounded, so CFS again recommended that mother be
granted an extended visit with the children after four successful overnights, and that
services for father be continued. On June 16, 2020, CFS submitted additional
information to the court indicating that father was actively trying to sabotage mother’s
reunification efforts by contacting her employers to make anonymous complaints about
mother’s work, applying for restraining orders in Family Law Court alleging mother
slashed his tires, requesting welfare checks on the children while they visited mother
overnight, alleging that the daughter had been sexually abused, and that mother was
selling drugs.
6 Father also sent an email to the social worker with what he maintained were
improper text messages from mother as well as screen captures of a photo he said was on
his daughter’s phone of an unknown person’s genitalia. The children denied any abuse,
or seeing any nude photos on their phones. However, the children did say that during
their visits with father, he made inappropriate comments about mother. Despite all
father’s efforts, on June 17, 2020, the court ordered mother’s overnight visits to continue.
Father was granted supervised visits.
One month later, the social worker provided additional information to the court
indicating it could not be determined if father was benefitting from services. Despite the
serious allegations he had made about mother’s conduct with the children, his goal was
that she have custody of the children during the week and he would take the children on
weekends. His therapist provided progress reports but would not discuss the extent to
which father addressed sexual abuse allegations with the social worker because father had
not consented. The social worker could not determine whether father accepted
responsibility for the sexual abuse, and, due to father’s unremitting harassment of mother,
the social worker felt that father was engaging in ongoing manipulation to exert control.
The worker also recommended an extended visit for mother now that all the reports of
suspected abuse or neglect had been closed as unfounded.
On July 23, 2020, the court returned the two younger children along with P.G., to
mother on the condition that no unapproved third parties be in contact with the children
and father did not reside in the home or have contact with the children without CFS
7 supervision. The two older children were maintained in the home of their paternal
grandparents. Mother was granted unsupervised visits with the two older boys, but
father’s visits were “as previously ordered,” that is, supervised. Father appealed this
order, but a no-issue letter brief was filed pursuant to In re Sade C. (1996)13 Cal.4th 952,
and the appeal was dismissed. (E075457, In re K.L., et al.)
On September 2, 2020, the social worker submitted a report for the upcoming
semi-annual review hearing (§ 364) as to the two younger children, and the 18-month
review hearing (§ 366.22) as to the two older children. The social worker recommended
that the younger children remain in mother’s custody under the family maintenance
services, and that the older children remain with the paternal grandparents with an
additional six months of services for mother.
CFS recommended that father’s services be terminated because father had
continued to interfere with mother’s reunification by making continuing allegations,
complaining to her employers in an attempt to sabotage her employment, and created
fake social media accounts by which he harassed her. In the meantime, he had been
caught on video tape chasing mother into her home. Father also repeated allegations that
mother had a boyfriend who was abusing the daughter by sharing pornographic
photographs with her in May 2020, which the daughter denied. It turned out there was a
possibility that father himself had uploaded photos onto the formerly shared family
iCloud account.
8 The report also noted that the two older children wished to remain with the
paternal grandparents, and were unwilling to participate in family therapy, although the
social worker hoped that once therapy was scheduled, they would give it a chance. While
mother had completed services and had demonstrated benefit from them, father had not
ameliorated the concerns about domestic violence. He minimized and denied his role in
the ongoing abuse of mother and his refusal to sign a consent prevented the social worker
from determining if he had ever addressed the sexual abuse allegations in services. The
most recent psychological evaluation showed that father’s interest in and motivation for
treatment was below average, and the social worker noted he demonstrated a problematic
pattern of behavior that is consistent with an abuser’s efforts to manipulate and control,
indicating lack of benefit from the domestic violence services.
During this time frame, father enjoyed liberal supervised visits of approximately
eight hours per week at the home of his parents. However, with the younger children
returned to mother, the grandmother had returned to work full time, rendering her unable
to supervise visits, which would interfere with the liberal visitation father had enjoyed.
Additionally, the social worker noted conflict between the paternal grandparents and the
mother; the paternal grandmother was observed instigating an argument with mother at
the CFS office at a supervised visit. The social worker recommended father be granted
supervised visits for a minimum two hours per week.
On October 9, 2020, the social worker provided additional information to the court
indicating that the paternal grandmother had made a derogatory comment about mother,
9 although P.G. only heard father talking about the girlfriend of one of the siblings by
referring to her as “crazy just like [A.L.]” Father still had not signed the consent so the
social worker could confirm that father had addressed the sexual abuse allegations,
limiting his consent to ongoing periodic progress reports. Father continued his harassing
pattern towards mother, sending a delivery of food and snacks from Costco to her home,
and using fake social media accounts to send her messages, in violation of restraining
orders. Further, on one occasion, the children had seen a car idling in front of mother’s
residence, and a person appeared to be watching mother in the front of the home. That
evening, father sent a message to mother saying she was doing good now. Father was
also aware of mother’s work schedule.
In the meantime, the social worker reported that the two older children agreed to
participate in an assessment for family therapy services, although they did not meet the
required medical necessity for treatment. On October 14, 2020, at the contested status
review hearing, the court ordered the younger children maintained with mother, and
ordered an extended visit with the two older children in mother’s home, over the
objection of minors’ counsel. The balance of the matter was continued because father
had been quarantined due to COVID-19.
By way of additional information to the court pending the conclusion of the status
review hearing and 366.22 hearing, father’s liberal visits of eight hours per week had
continued until the older children were placed with mother for the extended visit. There
was ongoing conflict between the paternal grandmother and mother during visits, and
10 grandmother was no longer available to supervise visits for father due to her return to
work full time. Concern was expressed that the grandmother was attempting to alienate
the children from mother. If the paternal grandparents could not supervise visits for
father, and visits had to be supervised by CFS, the liberal visitation he had enjoyed was
not sustainable.
In the meantime, the two older children appeared to be adjusting in mother’s
home, although they desired to visit with their paternal grandparents. The family
therapist reported they were blending in with the family. On November 10, 2020, the
social worker recommended that the two older children be returned to mother’s custody
under a family maintenance plan; although they preferred to live with their grandparents,
they were enjoying the relationship with their siblings.
On November 12, 2020, the court resumed the contested review hearing. The
younger children were maintained in mother’s custody and the two older children were
placed with mother under a permanent plan of return to mother. The court found that
father failed to make substantive progress and there was no substantial probability the
children would be returned to his custody within the statutory time frames, so his
reunification services were terminated. Regarding visitation, the court ordered a
minimum of one visit per week for two hours at the CFS office only, but it authorized
additional visits if father paid for a professional monitor or found a CFS approved
relative to supervise visits. Father appeals.
11 DISCUSSION
Father argues that the juvenile court abused its discretion by reducing his visitation
with his biological children. He asserts there is insufficient evidence that continued
visitation at the previous frequency was detrimental to the children or that reduced visits
were in the children’s best interests. We disagree for two reasons: First, the court did not
“reduce” visits because father was never ordered to have eight hours of visitation per
week. Second, the record supports the court’s discretionary order upon the termination of
reunification services to father.
a. The Court Did Not “Reduce” Visitation
Father complains that the visitation order for a minimum of two hours of visitation
per week was a reduction of visitation that was not supported by a finding that the
previous visitation was detrimental to the children. Not so. At the disposition hearing,
the court ordered that visitation between the parents and children would be for a
minimum of one time per week for two hours, supervised by CFS, with authorization for
CFS to increase visits in frequency and duration and to delegate supervision. Because the
children were placed with father’s parents, he was accorded more liberal access to the
children under their supervision and CFS’s authority to liberalize visits.
That original order was never modified. Beginning in June 2020, the court
ordered, “Visitation between the child and father shall be supervised.” It did not order a
change in frequency or duration. At the 12-month review hearing pursuant to section
12 366.21, which occurred next in sequence, the court ordered “Visitation between the child
and father shall be as previously ordered.”
Finally, at the post-permanency review/366.22 hearing, the court ordered visitation
for “a minimum of one time a week for two hours. I do have concerns that the
grandparents appear to be going back and forth as to whether they’re willing to supervise
and causing conflict with the mother. [¶] I’ll give authority for additional visitation as
the children express a desire to have a longer time period with their father, that can either
be through a paid monitor or if Father has any other adults that he can have assessed to
allow for more frequent visitation . . . .” It did not reduce father’s visits from the prior
orders.
Section 362.1 provides for visitation when reunification services have been
ordered and are still being provided unless the court specifically finds any visitation with
the parent would pose a threat to the child’s safety. The frequency of such visits, in
contrast, depends on a broader assessment by the court of the child’s “well-being.”
(§ 362.1, subd. (a)(1)(A); In re C.C. (2009) 172 Cal.App.4th 1481, 1491.) At the section
366.22 hearing, which applied to the two older children, “[t]he court shall continue to
permit the parent or legal guardian to visit the child unless it finds that visitation would
be detrimental to the child.” (§ 366.22, subd. (a)(3).)
Here, the court ordered visitation at the same frequency and duration as it had
provided in the original dispositional order. In other words, the visitation order
complained of was not reduced, so there was no need to find detriment to the child.
13 Further, father holds the key to any modification of the visits, to increase them or make
them unsupervised. To date, he has demonstrated no willingness to do so.
b. The Court Did Not Abuse Its Discretion
“Visitation shall be as frequent as possible, consistent with the well-being of the
child.” (§ 362.1, subd. (a)(1)(A).) “The power to regulate visits between dependent
children and their parents rests with the juvenile court and its visitation orders will not be
disturbed on appeal absent an abuse of discretion.” (In re D.P. (2020) 44 Cal.App.5th
1058, 1070, citing In re Jennifer G. (1990) 221 Cal.App.3d 752, 756; In re Robert L.
(1993) 21 Cal.App.4th 1057, 1067.) “As such, dependency law affords the juvenile court
great discretion in deciding issues relating to parent-child visitation, which discretion we
will not disturb on appeal unless the juvenile court has exceeded the bounds of reason.”
(In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558, citing In re Stephanie M. (1994) 7
Cal.4th 295, 318.)
One factor affecting a court’s exercise of discretion is linked to the particular stage
of the proceedings. Before permanency planning, while reunification efforts are under
way, section 362.1 provides that visitation must be “as frequent as possible, consistent
with the well-being of the child” in order “to maintain ties between the parent or guardian
and any siblings and the child, and to provide information relevant to deciding if, and
when, to return a child to the custody of his or her parent or guardian . . . .” (§ 362.1,
subd. (a); In re S.H., supra, 197 Cal.App.4th at pp.1558-1559.)
14 However, after reunification services have been terminated, the parents’ interest in
the care, custody and companionship of the child is no longer paramount, and “‘“the
focus shifts to the needs of the child for permanency and stability.”’” (In re S.H., supra,
197 Cal.App.4th at p. 1559, citing In re Stephanie M., supra, 7 Cal.4th at p. 317, quoting
In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Thus, the court must turn its focus to the
child’s best interests, rather than the parent’s, in deciding issues that may arise. (See also
In re Danielle W. (1989) 207 Cal.App.3d 1227, 1238; In re Stephanie M., supra, 7
Cal.4th at p. 317 [the juvenile court must focus on the child’s interests rather than the
parent’s interests once reunification services have terminated]; see § 366.21.)
Here, the father had enjoyed more liberalized contact with his children because of
his parents’ willingness to grant him frequent contact of liberal duration while the
children were placed there, not because of the court’s visitation orders. That situation
changed when the children were returned to mother’s custody and the grandparents
became unwilling or unable to commit to supervising visitation. Without the approved
relative supervision, father’s visits would have to be supervised by CFS at the CFS office,
unless father were willing to pay for a professional monitor or provide information
regarding a relative who could be assessed as a potential approved monitor. In other
words, the key to liberalizing visitation is in father’s hands.
The juvenile court did not abuse its discretion in re-ordering visitation at the same
rate of frequency as ordered at the inception of its jurisdiction over the family.
15 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
McKINSTER J.
RAPHAEL J.