Filed 5/18/23 In re B.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 B.W. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

BRANDEE B.,

Defendant and Appellant.

 D081308

 (Super. Ct. No. J521119A-B)

APPEAL from an order of the Superior Court of San Diego County, 

Browder A. Willis III, Judge. Affirmed.

Mansi Thakkar, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy 

County Counsel and Eliza Molk, Deputy County Counsel, for Plaintiff and 

Respondent.
2

Brandee B. (Mother) appeals the juvenile court’s order modifying her 

visits to her three-year-old and one-year-old daughters (the children) 

claiming she received no prior notice the court was considering modifying her 

visitation or any meaningful opportunity to challenge the modification. She 

also asserts the San Diego County Health and Human Services Agency 

(Agency) was required to file a Welfare and Institutions Code section 388 

petition to request the modification.1 The Agency asserts Mother forfeited 

both contentions by failing to raise an objection in the juvenile court. Finding 

Mother forfeited her claims on appeal, we affirm the juvenile court’s order.

FACTUAL AND PROCEDURAL BACKGROUND2

In early August 2022,3 the Los Angeles County Department of 

Children and Family Services (Department) filed petitions on behalf of the 

children alleging their health and safety were at risk due to concerns 

regarding Mother’s mental health. (§ 300, subd. (b)(1).) Mother lived in 

Palmdale, at the northern end of the county. The juvenile court in Los 

Angeles County authorized their removal and the Department placed them 

with their father, T.W. (Father), who lived in San Diego. At the detention 

hearing, the court appointed counsel for the parents and the children, made 

prima facie findings on the petitions, and detained the children with Father. 

It ordered services for the parents and supervised visits for Mother a 

1 All statutory references are to the Welfare and Institutions Code. 

2 Because Mother’s sole contention on appeal relates to modification of 

visitation, we limit our discussion of the facts and procedural history to 

information necessary to determine that issue.

3 All undesignated date references are to 2022.
3

minimum of three days per week for three hours per visit “as long as the 

Department can ensure the health and safety of all parties . . . [otherwise]

visitation [would] be by any electronic means available.”

In mid-August, the Department filed amended petitions to include 

allegations about Father. The parents denied the allegations in the amended 

petitions and the juvenile court set the matter for trial. In its jurisdictiondisposition report, the Department recommended that Father and the 

maternal grandmother not supervise Mother's visits. Because Father lived in 

the paternal grandmother’s home in San Diego and did not plan to relocate, 

the Department moved to transfer the case to San Diego County. 

At the contested jurisdiction-disposition hearing in September, the

juvenile court struck one allegation related to Father and then sustained the 

petitions. It continued Mother’s supervised visits for a minimum of nine 

hours per week with discretion to liberalize, disallowed Father from 

supervising or being present during visits, allowed telephone visits, and 

ordered a written visitation schedule. In October, the court transferred the 

case to San Diego County, authorized the maternal grandmother to supervise 

Mother’s visits, and ordered the parents to report to the San Diego 

Courthouse for the next hearing.

At the initial hearing in San Diego County in late October, the juvenile 

court preliminarily accepted the transfer, appointed counsel for the parents 

and children, noted that Mother’s prior visitation order remained in effect, 

and continued the matter to allow minor’s counsel to meet with the children. 

The court informed Mother that she and her attorney could discuss the 

details of her visitation with the new social worker. At the next hearing in 

mid-November, Mother’s counsel claimed that Mother had not seen the 

children since the case transferred from Los Angeles to San Diego. 
4

Father stated that visits were “fine” and suggested overnight visits on 

the weekends. The court declined to order overnight visits based on 

insufficient knowledge of the case but gave the Agency discretion to expand 

visitation. It ordered Mother’s visits occur “at least halfway” to Mother’s 

location or at a place mutually agreed upon by the parents. The court noted 

that if in-person visits were problematic, video visits should occur, and 

directed Mother to keep a log of any missed visits. The court again continued

the matter because a social worker had not yet been assigned to the case. 

The Agency filed no formal request to modify visitation. But its 

acceptance of transfer report filed on November 23 recommended that 

visitation be modified to include: (1) two supervised in-person visits a month 

for Mother in San Diego; (2) daily video visits; (3) that Father not supervise 

the visits; and (4) funding for Mother’s travel to San Diego. Father reported 

that Mother had daily visits with the children and it was “a struggle” for him 

to drive halfway to meet Mother because the youngest child gets carsick 

during the drive. The Agency stated that given the distance between 

children and Mother, nine hours of weekly visitation was “not realistic or 

feasible,” particularly given the need for third-party supervision.

Perhaps because visitation had been discussed at the October hearing, 

at the continued hearing in late November everyone seems to have assumed 

the juvenile court would consider modifying the visitation schedule. The 

court began the hearing by noting the Agency’s recommendation regarding 

Mother’s visits. The Agency requested that the court make the Agency’s 

recommendations the court’s order, stating:

“Specifically, one requesting that the court authorize 

funding for the mother to travel to San Diego to visit the 

children. I believe previously they were meeting at a 

halfway point to execute visitation between the children 

and their mom. Allowing those funds to allow mom travel 
5

to San Diego, gives the Agency a little bit more flexibility in 

terms of being able to provide more frequent visits to the 

Mother, as ordered by the court.” 

The children’s counsel submitted upon the Agency’s recommendations, 

stating it made more sense for Mother to travel to San Diego for visits rather 

than “two children to be in a car for a long time.” 

Mother’s counsel made no objection to the court considering the 

visitation schedule. Instead, he acknowledged the Agency’s request for biweekly visitation, but argued for weekly in-person visits and daily video 

visits. Counsel added that despite the young age of the children, “[t]here has 

to be times you give the mother a break and bring the children to the mother 

and have a visit in the mother’s realm.” He closed his argument by 

requesting, at a minimum, weekly visitation in San Diego or where Mother 

lived. 

Father’s counsel stated that transportation for Father was an issue and 

echoed the need for funds to facilitate Mother’s visits. Minor’s counsel had no 

opposition to weekly visits in San Diego but did not “want to overwhelm the 

girls too much and take away from any services or anything else . . . .” The 

social worker then addressed the court, expressing concern that no record 

existed of the services Mother had participated in, a psychological evaluation 

was not on file, and she had not yet spoken to Mother’s therapist to 

determine whether Mother was taking her medication. Despite these 

concerns, the social worker was willing to consider weekly visits in San 

Diego. 

The court accepted the transfer from Los Angeles for all purposes, 

confirmed two in-person visits a month, daily video visits, and gave the 

Agency discretion to expand those visits “as the situation is assessed.” It 

authorized funding to assist with Mother’s transportation and directed 
6

Mother to speak to her counsel about signing a release of information

regarding Mother’s progress and programing because the Agency could not 

expand Mother’s visits without this information. After Mother inquired 

about returning the children to her care, the court responded that it had 

“confirmed and affirmed” the findings and orders from the Los Angeles 

juvenile court and “[a]ll prior orders not in conflict remain in full force and 

effect. . . .” 

DISCUSSION

Mother contends the juvenile court violated her due process rights by 

modifying the visitation order based on the Agency’s request, without any 

prior notice to her that it was considering making such modification or 

providing her any meaningful opportunity to challenge the modification. She 

also claims the Agency was required to file a section 388 petition to request 

the modification. The Agency contends Mother forfeited her due process 

claims and argument that the Agency was required to file a section 388 

petition by not raising these issues in the juvenile court. Mother argues in 

her reply brief that forfeiture does not exist on this record. Even assuming 

forfeiture, she contends we retain discretion to consider her claims.

“[A] reviewing court ordinarily will not consider a challenge to a ruling 

if an objection could have been but was not made in the trial court.” (In re 

S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground 

as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) The purpose of the 

forfeiture rule is to encourage parties to bring errors to the trial court’s 

attention so they can be corrected. (In re S.B., at p. 1293.) A second purpose 

is to create a record that permits review of the trial court’s ruling to 

determine if it was erroneous. (In re A.E. (2008) 168 Cal.App.4th 1, 5.)
7

The forfeiture rule has been applied to claims of defective notice in 

dependency proceedings. (In re B.G. (1974) 11 Cal.3d 679, 689 [absence of 

notice of jurisdictional hearing in violation of mother’s due process rights was 

forfeited on appeal where mother appeared with counsel at subsequent 

hearings and failed to raise the issue]; Marlene M. v. Superior Court (2000) 

80 Cal.App.4th 1139, 1149 [mother’s failure to object to proceeding with 

dispositional hearing waived defective notice claim on appeal].) “ ‘[E]ven 

constitutional rights, including those of a minor in the area of juvenile court 

procedure, will ordinarily be waived by silence, i.e., by their nonassertion.’ ” 

(In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344; Kevin R. v. Superior 

Court (2010) 191 Cal.App.4th 676, 685–686 [due process challenge forfeited 

because visitation issue not raised before juvenile court].)

Here, Mother appeared telephonically at the hearing with counsel and 

spoke with counsel regarding visitation before the hearing. At the start of 

the hearing, the court noted the Agency’s recommended change to the 

existing visitation order before hearing from counsel. Mother never claimed 

the Agency was required to file a section 388 petition before the juvenile 

court could modify the Los Angeles court’s visitation order or complained 

about a violation of her due process rights.4 Rather, counsel noted the 

requested narrowing of Mother’s visitation from what the Los Angeles 

juvenile court had ordered, acknowledged the Agency’s recommendation for 

bi-weekly visits, and instead requested weekly in-person visits and daily 

video visits. 

4 As Mother acknowledged in her opening brief, a juvenile court’s order 

can be modified sua sponte by the court under section 385 upon providing the 

parties with notice and an opportunity to be heard. (Nickolas F. v. Superior 

Court (2006) 144 Cal.App.4th 92, 98, 116.) 
8

At no point did Mother object based on surprise, lack of notice or 

opportunity to be heard. Although the social worker appeared at the hearing 

and spoke regarding the Agency’s recommended change to the existing 

visitation schedule, Mother’s counsel did not request to cross-examine the 

social worker, express a need to call any witnesses, or claim he was 

unprepared to argue visitation. Instead, Mother fully participated in the 

hearing with her counsel, addressing the Agency’s recommended change to 

her visitation schedule on its merits. A timely objection would have allowed 

the juvenile court to remedy any perceived error by taking a break in the 

hearing or granting a short continuance if Mother required more time to 

prepare a response or produce evidence. On this record, Mother forfeited her 

procedural challenges to modification of the visitation order.

Of course we understand we have the ability to consider Mother’s claim 

despite her forfeiture, but there is no basis to do so here. Our Supreme Court 

described the limited exception in dependency appeals to the forfeiture rule:

“[T]he appellate court’s discretion to excuse forfeiture should be exercised 

rarely and only in cases presenting an important legal issue. [Citations.] 

Although an appellate court’s discretion to consider forfeited claims extends 

to dependency cases [citations], the discretion must be exercised with special 

care in such matters.” (In re S.B., supra, 32 Cal.4th at p. 1293.) 

The visitation issue was not a complicated one. The parties all acted as 

though it was properly before the court in November, perhaps because it had 

been previewed at the October hearing. Mother’s argument presents no 

important legal issue that would justify our disregarding her failure to alert 

the court to any concerns she had with the procedures being employed.
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DISPOSITION

The juvenile court’s visitation order is affirmed.

DATO, J.

WE CONCUR:

O'ROURKE, Acting P. J.

BUCHANAN, J.