Filed 11/1/21 K.B. v. Sup erior Court CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

K.B.,

Petitioner,

v.

THE SUPERIOR COURT OF

LOS ANGELES COUNTY,

Respondent;

LOS ANGELES COUNTY

DEPARTMENT OF

CHILDREN AND FAMILY

SERVICES,

Real Party in Interest. B3 13693

(Los Angeles County

Super. Ct. No.

18CCJP00258A

– C )

OR IGINAL PROCEEDING; petition for extraordinary writ.

Superior Court of Los Angeles County, Tamara E. Hall, Judge.

Petition denied.2 Neale B. Gold for Petitioner.

No appearance for Respondent.

Office of the County Counsel, Rodrigo A. Castro

- Silva,

County Counsel, Kim Nemoy, Assistant County Counsel, Sally

Son, Deputy County Counsel for Real Party in Interest.

I. INTRODUCTION

K.B. (mother) 1 has filed a petition for extraordinary relief,

arguing that the juvenile court violated her due process rights by

bypassing reunification services for her one

- year

- old child,

Kristopher

, in the absence of a bypass recommendation by the

Department of Children and Family Services (the Department) or

any notice that a bypass provision might be invoked. Even if the

deci sion was not a violation of her due process rights, she further

argues, it was nonetheless not supported by substantial evidence.

Finally, she argues the court relied on a legally inapplicable

provision as the basis for its order denying reunification ser vices

as to seven

- year old Ka. and six

- year old Ke. We deny the

petition.

II. BACKGROUND

A. Initial Jurisdiction over Ka. and Ke.

On March 13, 2018, the juvenile court sustained an

amended petition which alleged that the parents’ domestic

violence and alcohol abuse endangered Ka. and Ke.’s safety. The

1 T he children ’ s father

, K.C ., is not a party to this writ

proceeding

.3

court declared Ka. and Ke. dependents, removed them from

parental custody, and ordered them suitably placed. The court

ordered the Department to provide family reunification services

to the children and parents and ordered that mother participate

in a full drug program, weekly drug testing, a 12

- step program, a

domestic violence program, and individual counseling. The

Department placed Ka. and Ke. with maternal grandparents.

Over the next 18 months, th e parents visited with the

children regularly and made progress with their case plans. At

the 18

- month review hearing, conducted on July 16, 2019, the

juvenile court ordered the children returned to father’s custody,

while mother’s visitation remained mon itored.

In January 2020

, just seven days after mother gave birth to

Kristopher, the juvenile court permitted mother to return to the

home, ordered Ka. and Ke. returned to the home of parents

, and

continued to maintain jurisdiction.

By late March 2020

, mother’s domestic violence course w as

suspended due to the COV I D

- 19 pandemic. In June 2020, both

parents admitted to a social worker that they were feeling

“ ‘ stressed and overwhelmed ’ ” because of the pandemic and

because they had no options for taking t he children out of the

home. By September 17, 2020, maternal grandmother reported

that “ ‘ father and mother are not good together ’ ” and are in

constant “ ‘ battles ’ ” with one another. Both parents admitted to

smoking marijuana again.

Father reported an alt ercation with mother during which

father tried to prevent mother from taking the children to

maternal grandmother’s house and paternal great

- grandfather

had to intervene. Mother eventually took the children to

maternal grandmother’s home.4 The social work er then interviewed Ka., who stated that

mother and father “ ‘ fight a lot. ’ ” When asked whether he saw

them hit each other, he said, “ ‘ no just yell. ’ ” The social worker

asked whether he felt safe going home and living with father and

mother. Ka. hesitate d and said, “ ‘ I like it here ’ ” at maternal

grandmother’s house. Ke., too, said, “ ‘ I want to stay here with my

grandma. ’ ”

When a social worker met with mother again on

October 9, 2020, mother expressed frustration at the

Department’s focus on her failure to complete court

- ordered

programs. She asked, “ ‘[W] hat difference would it make now.

We have already separated and I don’t plan to go back. ’ ”

On November 10, 2020, the juvenile court authorized the

children’s detention from the parents, and they were a gain placed

with maternal grandmother.

B. Jurisdiction Over Kr istopher

On November 13, 2020, the Department filed a Welfare and

Institutions Code 2 section 300 petition alleging that Kristopher

was endangered by the parent s ’ history of domestic violence and

substance abuse. It also filed a supplemental petition pursuant

to section 387 on behalf of Ka. and Ke., alleging the children were

endangered by mother’s failure to comply with her case plan. On

November 18 and 19

, 2020, the juvenile court detained all three

children from mother, ordered the children released to father,

and limited mother to monitored visits.

2 Further statutory references are to the Welfare and

Institutions Code.5 When interviewed on December 20, 2020, mother said the

family was doing well when she first returned to the home in

January 2020 but during th e pandemic, things went back to “ ‘ the

old routine. ’ ” Although there was no more physical violence,

father engaged in other forms of domestic violence, like ripping

mother’s clothes, calling her names, and withholding money from

mother and the children.

O f 7 4 drug tests scheduled between June 2019 and

December 2020, mother “no showed” to all but eight tests.

Mother acknowledged she stopped drug testing because she knew

she would test positive for marijuana.

At the January 19, 2021

, hearing on the section 300 and

387 petitions, the juvenile court sustained the petitions, ordered

the children removed from mother and placed with father, and

ordered monitored visitation for mother. Mother was provided

enhancement and reunification services, and ordered to co mplete

a 12

- s tep p rogram, individual counseling, a domestic violence

program, and drug testing.

C. Continued Domestic Violence and Failure to Drug Test

Three months later, on March 12, 2021, the Department

received a referral alleging that father stabbe d mother in the

knee with a knife. A week later, he kicked her in the injured

knee and then, a few hours later, strangled her until she passed

out.

The Department again detained the children. On

March 16, 2021, it filed a section 342 petition alleging t hat the

children were endangered by the parents’ recent domestic

violence altercations. The Department also filed a section 3876

petition alleging that father allowed mother in the home in

violation of the juvenile court’s orders. On March 19, 2021, t he

j uvenile court ordered the children detained and the parents’

visits to be monitored.

On April 21, 2021, mother confirmed to a social worker that

father stabbed her knee with a knife and admitted she and father

“ ‘ sat outside of the emergency room

. . . and made a story of what

to tell them [because she] didn’t want the kids taken away. ’ ” On

March 11, 2021, they argued and father hit her, causing her to

fall. Father then stepped on her knee and kicked her “ ‘ all over. ’ ”

He then grabbed her head and started dragging her while

choking and strangling her, saying “ ‘ he should have just finished

[her]. ’ ” The last thing she remembered was father putting her in

a headlock. When she awoke, mother was outside and paternal

great

- grandmother was screaming because she thought father

had killed mother. During this incident, Kristopher was in the

back house with paternal great

- grandmother, while Ka. and Ke.

were at paternal grandmother’s home.

Paternal great

- grandmother reported that she was in the

back room with Krist opher when she saw mother on the floor.

She went into the living room and saw father dragging mother

out toward the front door. Mother seemed unconscious and

paternal great

- grandmother thought father had killed her.

Paternal great

- grandmother did not th ink mother seemed

intoxicated. Paternal great

- grandmother ran for the phone, but

father ran towards her and scuffled with her for the phone,

injuring her lip.

Mother admitted to the social worker that she was living

with father at the time of the most re cent domestic violence

incident, even though she knew that she “ ‘ wasn’t supposed to be7

there. ’ ” She added that while father appeared in court on

January 19, 2021, she hid in the closet, and, that when a social

worker would visit the home, mother would hid e in the back with

paternal great

- grandmother.

Mother reported she was participating in individual

counseling, AA meetings, and a domestic violence support group.

From January 19, 2021, to April 2021, mother “no showed” to all

13 of her scheduled drug te sts. In the same time period, father

“no showed” to all six of his scheduled drug tests. He thought the

drug testing “ ‘ was pretty much lame ’ ” and added that he was

“ ‘ tired of explaining to people and not be ing able to do what [he]

want[s]. ’ ”

In its juri sdiction/disposition report, filed April 30

, 2021,

the Department recommended the court order family

reunification services to mother as to Kristopher. As to the two

older children, however, the Department noted that the parents

had received over 18 month s of reunification services and

recommended that no further services be provided.

On May 11, 2021, the Department filed a last minute

information, reporting that on April 23, 2021, mother tested

positive for marijuana and on April 30, 2021, she was a “no show”

for a drug test.

D. May 13, 2021

, Hearing

At the May 13, 2021

, hearing, the Department and

children’s counsel agreed the section 387 and 342 petitions

should be sustained. Children’s counsel, however, advocated for

reunification services as to a ll three children. Counsel believed8

all three were “very much bonded to their parents” and felt there

was good cause to keep the children on the same track.

After hearing argument, the juvenile court sustained the

section 387 and 342 petitions. It then observed that “[i]t’s

interesting that visitation orders are being

. . . requested. We

will talk about that because based on

. . . mother [’s] and father’s

willful disregard of court orders, and willful disregard of the well

being of their children, it’s p retty close and pretty clear that they

are a detriment to the well

- being of their children. It may not be

in the best interest of the children to have any visitation s with

either mother nor father. So we will discuss that in disposition.”

At that point, counsel for the Department argued: “I am

asking that the court not order family reunification services for

either mother or

. . . father. They have exhausted the period to

reunify with the [children]

. So as to

. . . mother and father for

[Ka. and Ke.], they had already received 18 months of

reunification services. There was a [section 366] .22 hearing for

[Ka. and Ke.] on July [ 16 ]

, 2019. Should the court order [family

reunification] services, I would ask that be as proposed in the

case plan provided.” 3

Mother’s counsel requested that “the court

. . . exercise its

discretion in granting family reunification for all the children

. . . . The children are very bonded to their mother

. . . . [¶] If

the court is not inclined to grant reunification, mothe r will at

least ask for the monitored visits as there has been no direct

harm to the children.”

3 Although the Department interprets this statement as

requesting that reunification services be denied only for Ka. and

Ke., counsel did not make any different or separate argument

re garding Kristopher.9 Following further argument by the parties, the juvenile

court recited the history of this case and then found: “These

parents are a risk, in and of themselves

, to these children. There

is no order of family reunification services that this court can

grant today that the parents have not already been given, that

they have partially complied, a little bit complied, but the lessons

in what they were supposed to l earn have gone in one ear and out

the other. Meanwhile, these children are getting older and their

safety is being jeopardized by the direct conduct of

. . . mother

and

. . . father flipping their thumbs at the court orders to the

point where it has escal ated to a criminal matter, to the point

where

. . . father has placed his hands around

. . . mother’s neck

. . . . There are no services that this family

— that this court can

order that this family has [ sic ] already been given that will help

this family. [¶] It’s for those reasons that the court is granting

no family reunification services for mother or father.” The court

specified that it was “not following the recommendation of the

Department. The court is not granting family reunification

services fo r this family.”

The court took a brief recess. Then, it stated that it was

making its order pursuant to section 361.5, subdivision (b)(10) as

to Ka. and Ke., and pursuant to section 361.5, subdivision (c)(2)

as to Kristopher. The Department suggested th at the order

should be based on the fact that the parents had run out of time

to reunify with Ka. and Ke., and on section 361.5, subdivision

(b)(10) and (c)(2) as to Kristopher. The court then granted the

parents monitored visitation and scheduled a secti on 366.26

hearing.10 At no point during the proceedings did mother’s counsel

request a continuance or object that the court’s decision to apply

the bypass provision denied her of due process.

Mother filed a notice of appeal which, pursuant to In re

A.R. (2 021) 11 Cal.5th 234, we deemed to be a notice of intent to

file a petition for extraordinary relief. We now deny the petition.

III. DISCUSSION

A

. Kristopher

“Generally, the juvenile court is required to provide

reunification services to a child and the child’s parents when a

child is removed from parental custody under the dependency

laws. (§ 361.5, subd. (a).).” ( In re I.A. (2019) 40 Cal.App.5th 19,

23.) Nonetheless, the statutory scheme sets forth certain

situations where reunification services may be “bypassed”

because “the delay attributable to the provision of reunification

services would be more detrimental to the minor than

discounting the competing goal of family preservation.” ( Jennifer

S. v. Superior Court (2017) 15 Cal.App.5th 1113, 112 0.)

One such “bypass” provision applies where “the court

ordered termination of reunification services for any siblings or

half siblings of the child because the parent or guardian failed to

reunify with the sibling or half sibling after the sibling or ha lf

sibling had been removed from that parent or guardian pursuant

to Section 361 and

. . . this parent or guardian has not

subsequently made a reasonable effort to treat the problems that

led to removal of the sibling or half sibling of that child from tha t

parent or guardian.” (§ 361.5, subd. (b)(10).)11 It is the Department’s burden to prove, by clear and

convincing evidence, that one of the provisions of section 361.5,

subdivision (b) applies. (§ 361.5, subd. (b).) Once it does so,

“‘“‘ the general rule favoring reunification is replaced by a

legislative assumption that offering services would be an unwise

use of governmental resources. [Citation.] ’ ” [Citation.]’

[Citations.] Thus, if the juvenile court finds a provision of

section 361.5, subdivisio n (b), applies, the court ‘shall not order

reunification for [the] parent

. . . unless the court finds, by clear

and convincing evidence, that reunification is in the best interest

of the child.’ (§ 361.5, subd. (c)(2).) ‘The burden is on the parent

to

. . . show that reunification would serve the best interests of

the child.’ [Citation s .]” ( In re I.A., supra

, 40 Cal.App.5th at

p. 24.)

We review an order denying reunification services under

subdivision (b) of section 361.5 for substantial evidence. ( C heryl

P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) In doing so,

we consider the evidence in the light most favorable to the trial

court’s findings. (

In re T.G. (2015) 242 Cal.App.4th 976, 987.)

1. Due Process

Mother argues the juvenile court deprived her of due

process by bypassing reunification services pursuant to section

361.5, subdivisions (b)(10) and (c)(2) when mother was not on

notice that services might be bypassed. Mother, however, did not

raise this argument before the juvenile cour t. “[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.

[Citation, fn. omitted.] The purpose of this rule is to encourage12

parties to bring errors to the attention of the trial court, so that

they may be corrected. [Citation.] [¶] Dependency matters are

not exempt from this rule. [Citation s .]” ( In re S.B. (2004) 32

Cal.4th 1287, 1293.)

“A defect in notice

. . . is a most serious issue, potentially

jeopardizing the integrity of the entire judicial process. However,

when a parent had the opportunity to present that issue to the

juvenile court and failed to do so, appellate courts routinely

refuse to exercise their limited discretion to consider the matter

on appe al. This is precisely because defective notice and the

consequences flowing from it may easily be corrected if promptly

raised in the juvenile court.” ( In re Wilford J. (2005) 131

Cal.App.4th 742, 754; see also In re Lukas B. (2000) 79

Cal.App.4th 1145, 1152 [finding the father waived issue of

improper notice of section 366.26 hearing by failing to raise it

below].)

Here, mother and her counsel were both present when the

juvenile court, upon sustaining the section 342 and 387 petitions,

stated its view t hat “[i]t may not be in the best interest of the

children to have any visitation with either mother nor father.”

The court then gave the parties an opportunity to argue the

disposition. The Department asked the court not to order

reunification services f or either parent. Through counsel, mother

asked the court to grant reunification services for all three

children, and added that if the court w ere not so inclined, then

“mother will at least ask for the monitored visits as there has

been no direct harm to the children.” After the court announced

its decision, the Department requested that the court deny

services under different statutory authority. At no point did

mother argue she did not have notice that reunification services13

might be bypassed as to Kr istopher or that her due process rights

were being violated. Nor did she request a continuance upon

learning that reunification services might be bypassed.

Accordingly, she has forfeited her argument on review.

2. Substantial Evidence

Even if the juv enile court’s order did not violate her due

process rights, mother argues, it still should be reversed because

it was not supported by substantial evidence. We disagree.

“The concept of a child’s best interest ‘is an elusive

guideline that belies rigid d efinition. Its purpose is to maximize

a child’s opportunity to develop into a stable, well

- adjusted adult.’

[Citation.]” (

In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) “In

determining the children’s best interests, the ‘court should

consider “a parent ’s current efforts and fitness as well as the

parent ’ s history”; “[t]he gravity of the problem that led to the

dependency”; the strength of the bonds between the child and the

parent and between the child and the caretaker; and “the child’s

need for stabil ity and continuity.”’ ( In re William B. (2008) 163

Cal.App.4th 1220, 1228

. . . .) ‘[A]t least part of the best interest

analysis must be a finding that further reunification services

have a likelihood of success. In other words, there must be some

“rea sonable basis to conclude” that reunification is possible before

services are offered to a parent who need not be provided them.’

( Id

. at pp. 1228

– 1229.)” ( In re G.L. (2014) 222 Cal.App.4th 1153,

1164.)

The juvenile court’s determination that further

reu nification services would be fruitless is amply supported by

the record. Mother “no showed” to 66 of 74 scheduled drug tests14

between June 2019 and December 2020. Even after the children

were detained again, she continued to “no show” for drug tests,

fail ing to appear for 13 more drug tests between

January 19, 2021

, and April 2021. In April 2021, she was

scheduled for two more drug tests. She tested positive for

marijuana in the first and “no showed” for the second. This

extensive track record of noncom pliance with her case plan

supports the court’s conclusion that further services would not be

successful.

Further, mother demonstrated that she was unable to

extricate herself from domestic violence. In spite of the

individual counseling and domestic vio lence services she received

during an extended reunification period, and despite having told

the Department that she was separated from father, she

nonetheless returned to father’s home and lived there regularly.

When father stabbed her in the knee, she a nd father made up a

story about how the injury occurred while sitting together outside

the emergency room. Even then, she continued to live with

father, including when father stepped on her injured knee, kicked

her all over, and strangled her to unconscio usness. Mother later

admitted that she lived at home even when she knew she was not

supposed to be there. She hid in the closet while father appeared

in court, presumably by video. If she knew a social worker would

visit, she would hide in the back hous e with paternal great

grandmother. Mother’s repeated efforts to thwart the

effectiveness of arrangements designed to protect her and her

children, and her inability to leave father, supports the juvenile

court’s finding that further reunification services would be futile

and mother would not successfully reunify with Kristopher. If

reunification is unlikely to be successful, then the child’s interest15

in stability and continuity is best served by proceeding to

permanency planning rather than engaging in pr otracted and

ultimately fruitless reunification efforts. (See In re William B.,

supra

, 163 Cal.App.4th at p. 1229 [“The best interests of the child

are not served by merely postponing his chance for stability and

continuity and subjecting him to another f ailed placement with

the parent”].)

We acknowledge the evidence that all three children are

bonded to mother. Nonetheless, “[t]he boys’ bonds with the

mother cannot be the sole basis for a best interest finding.” ( In re

William B., supra

, 163 Cal.App.4t h at p. 1229.) Nor are the

children’s bonds with mother the only bond relevant to the

juvenile court’s analysis. The court must also consider and weigh

the children’s bonds with their caretaker and with one another.

(See In re Ethan N., supra

, 122 Cal.A pp.4th at p. 67.) When

interviewed in September 2020, both Ka. and Ke. said they

wanted to live with maternal grandmother. And, as the

children’s counsel pointed out, the siblings’ bonds with one

another favored keeping all three children on the same tra ck.

We are persuaded that substantial evidence supports the

juvenile court’s determination that mother did not demonstrate,

by clear and convincing evidence, that reunification services

would be in Kristopher’s best interests.

B

. Ka

. and Ke

.

Mother arg ues the juvenile court erred in relying upon

section 361.5, subdivision (c)(2) to bypass reunification services

as to Ka. and Ke. Having reviewed the transcript of the hearing,

we do not believe the court’s final order was based on section16

361.5, subdivis ion (c)(2). Rather, upon prompting by counsel for

the Department, the court agreed that its order as to Ka

. and Ke

.

should be “based on the fact that the parents have simply r[u]n

out of time to reunify with the children.” When counsel for the

Department went on to suggest the court base its order as to

Kristopher on section 361.5, subdivision (b)(10), the court

thanked counsel and said, “and [section 361.5, subdivision

(] c [)] (2).” In other words, the court’s reliance on section 361.5,

subdivision (c)(2) was limited to its order bypassing reunification

services for Kristopher.

As to Ka. and Ke. , mother does not deny she received over

18 months of reunification services. She contends the juvenile

court should have exercised its discretion to award reunif ication

services for Ka. and Ke. pursuant to section 352 based on

children’s counsel’s recommendation that the three children be

kept on the same track as they are all “very much bonded to their

parents.” We reject this argument, as we affirm the court’s order

bypassing reunification services for Kristopher

.17 IV. DISPOSITION

The petition for extraordinary writ is denied.

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.