In re K.B.

Filed 8/16/07 In re K.B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Belinda W. appeals from the juvenile courts orders removing her children, K.B. (now 12 years old) and Ken W. (now nine years old), from her custody, terminating family maintenance services, denying reunification services, and selecting a planned permanent living arrangement as a permanent plan for the children. She contends (1) the juvenile courts order on a supplemental petition filed pursuant to Welfare and Institutions Code section  387[1] was barred by res judicata; (2) there was insufficient evidence to support the order removing the children from parental custody; (3) there was insufficient evidence to support the order denying reunification services to appellant; (4) the court abused its discretion when it placed the children in foster homes without fully considering placement with three relatives who had requested custody; and (5) the courts visitation order delegated too much authority to the social workers. We shall affirm the juvenile courts orders.

Factual and Procedural Background

On December 11, 2003, the Alameda County Social Services Agency (Agency) filed an original dependency petition alleging that K.B. (then eight years old) and Ken (then five years old), came within the provisions of section 300, subdivisions (b), (d), and (j). The petition also alleged that two of the childrens older half-siblings, a then 15-year-old gril, and a then 12-year-old girl, came within the provisions of section 300, subdivisions (b), (g), and (j), and that a third half-sibling, a then 17-year-old girl, came within the provisions of section 300, subdivisions (b) and (d). Specifically, the petition alleged, as to all of the children, that they stated that they were hit with instruments of abuse, including brooms, extension and vacuum cords, rods, and shoes, and were kicked and had their hair pulled on a nearly daily basis; that the children no longer wished to reside in appellants home; that the children alleged that appellant used crack and hard liquor daily; that the children had marks and bruises on their person from physical abuse by the parents; that all three of the eldest siblings stated that they were abused sometimes two to three times a day; and that the condition of the home was filthy and in disarray. The petition further alleged that the then 17-year-old girl stated that she had been sexually abused several times, beginning at age 11, by male adult friends of appellant; that the identity and circumstances of Kens father were unknown; and that all of the children were at risk of further abuse due to the allegations of physical and sexual abuse.^[2]

At the December 17, 2003, detention hearing, the juvenile court ordered the children detained.

In the jurisdiction/disposition report prepared on December 23, 2003, the social worker reported that the children had adjusted to foster care. One relative expressed interest in having K.B. placed with her and another relative was interested in having the three older girls placed with her. Both relatives were referred to another worker for a LiveScan. Appellant wanted the two youngest children to come home, but acknowledged that she could not handle the three older girls. She had difficulty acknowledging her drug and alcohol problems but agreed to test. The older three girls were clear that they had been physically abused and also said that K.B. had been hit, but that Ken had not. They said that appellant drank hard liquor and used crack at least twice a day and stayed in bed a lot. The home was also in a deplorable condition. There had been several prior referrals to the Agency, with no action taken. The Agency recommended that the children be placed out of home and that reunification services be offered to the parents.

In an addendum report prepared on January 21, 2004, the social worker reported that appellant had been cooperative and had had three supervised visits. Kens father, Elvin V., had also been cooperative and had attended the three visits. Appellant had admitted that she and Elvin V. were a couple, which boded well for the childrens well-being. Both had tested positive for marijuana once and agreed to stop using it. They both had begun regularly attending parenting classes, appellant had requested individual counseling, and the house had been cleaned up. Ken had been molested by another child in his foster home; the other child was removed immediately from the home and Ken had been referred for counseling. The social worker recommended that the three older children be placed out of home, but that Ken and K.B. be placed in-home with appellant, with family maintenance services provided to appellant and Kens father.

At the January 26, 2004, jurisdictional/dispositional hearing, the juvenile court found the allegations true, declared the children dependents of the court, removed the three oldest children from parental custody with reunification services to be provided, and placed K.B. and Ken in appellants home with family maintenance services.

In a status review report prepared on June 29, 2004, the social worker reported that appellant had been cooperative, although she had not followed through on her substance abuse treatment program. She had resumed drug testing and had met regularly with the social worker. The social worker recommended that K.B. and Ken remain in appellants care with continued family maintenance services.

At the July 12, 2004, review hearing, the juvenile court ordered that family maintenance services continue.

In a status review report prepared on December 16, 2004, the social worker reported that appellant had been hospitalized in November for high blood pressure and asthma, and had agreed to undergo a full medical examination. She was progressing in her goal of completing her Associate in Sciences degree at Silicon Valley College and was in therapy. K.B. and Ken were stabilizing in the home and it was obvious they wanted to be home with their mother. The then 17-year-old girl had turned 18 and was living with appellant, the then 15-year-old girl had given birth and was living with the babys father, and the then 12-year-old girl was in a group home. The social worker recommended that family maintenance services continue.

At the December 28, 2004, review hearing, the juvenile court ordered that family maintenance services continue.

In a status review report prepared on May 25, 2005, the social worker reported that appellant was continuing her education in medical technology at Silicon Valley College, where she reportedly was at the top of her class. She was also continuing her therapy and maintaining contact with the childrens school. She was maintaining a residence and working towards maintaining regular housekeeping and regular hygiene for K.B. and Ken. However, she had continued to test positive for drugs and the social worker described her as a functioning substance abuser, whose behavior placed her children and her own health at risk. It was crucial that appellant resume her out-patient recovery program. The social worker recommended that K.B. and Ken remain in appellants home with continued family maintenance services.

At the June 8, 2005, review hearing, the court followed the Agencys recommendations and ordered continued family maintenance services.

On October 25, 2005, the social worker prepared a status review report in which she reported that appellant and the two children had moved to a safer neighborhood. Appellant had various physical problems, including asthma and chronic back, leg, and stomach pain. She needed to follow through on her medical appointments and recommended treatments. Appellant was continuing with her therapy. She also continued to do well in school; she had completed her AA degree and had begun working toward her B.A. She also kept in contact with the childrens school. Ken had ongoing academic delays due to his inability to focus and restrain himself emotionally. The social worker recommended that K.B. and Ken remain in appellants home with continued family maintenance services.

At the November 16, 2005, review hearing, the court ordered continued family maintenance services for appellant.

In a status review report prepared on April 19, 2006, the social worker reported that appellant had again moved and appeared to be maintaining basic care of the home. She added that appellant has always put a genuine effort forth and worked diligently to do her very best for the child(ren). However, she also wrote that [i]t appears in many cases, whether consciously or unconsciously what [appellants] positive efforts have resulted in is sabotaging the processes (therapy, educational recommendations). In addition, she does not appear to be able to focus on the process and maintain consistency through the understandings [of] what needs to happen, how and why.

In addition, therapy for appellant, Ken, and K.B. had been terminated due to failure to attend appointments. Appellant had also refused to participate in family therapy sessions or discuss the childrens treatment plans. The children were not receiving the services they needed and their emotional health was at risk. Appellant also had disagreed with a plan for special half-day classes for Ken, and, in November 2005, had withdrawn them from their school without any notice or pre-approval and enrolled both children at another school. The change in school environments had continued to be a traumatic event for Ken and he was having major problems at his new school, which did not have the resources available to help him. It was recommended that he be considered for a specialized educational program at a residential facility. The social worker also noted that appellant had fully participated in all special education meetings for the children, but she had made decisions that appeared to have kept Ken from having his education needs met.

Appellant had not maintained consistent drug testing, with the most recent results showing cocaine and marijuana use. She also had not participated in out-patient drug treatment. She had not yet followed through on a referral for a medication evaluation. The social worker recommended that K.B. and Ken remain in appellants home with continued family maintenance services.

At the April 26, 2006, review hearing, the court ordered continued family maintenance services for appellant. However, the court also made clear at the hearing that it anticipated that the filing of a supplemental petition, pursuant to section 387, was imminent and that the children would be removed from appellants home as soon as possible: Im going to just maintain all prior orders right now with the understanding that the children are going to be removed from [appellants] care and a [section] 387 [petition] will be filed . . . .

On May 1, 2006, the Agency detained K.B. and Ken and, on May 3, 2006, filed a section 387 supplemental petition, alleging that appellant was noncompliant in meeting essential aspects of her family maintenance case plan. Specifically, the petition alleged that appellant had not attended a drug treatment program; had not drug tested since May 2005 and all six prior tests were positive for cocaine and/or marijuana; had not consistently attended therapy, resulting in termination of her therapy; had not submitted to psychological testing; had not followed up on a referral for a medication evaluation; had not taken the children to therapy, resulting in termination of their therapy; had refused to participate in family therapy sessions or discuss the childrens treatment plans; had refused to avail herself of voluntary services for Ken; and had failed to meet the educational needs of the children, including failing to cooperate with the school districts in their attempts to meet the childrens educational needs, suddenly withdrawing the children from their school without notification or planning to ensure their educational needs could be met by the new school, and failing to ensure the childrens regular school attendance.

In a detention report prepared on May 3, 2006, the social worker reported that K.B. had been placed in a foster home and Ken had been placed at the Seneca Center for a 90-day assessment. Appellant had received 28 months of intensive family maintenance services, but had not cooperated with services designed to keep the children safe while in her care. Kens father, Elvin V., was interested in having both Ken and K.B. placed with him; K.B.s father approved of this proposed arrangement, as did the Agency. However, Elvin V. had two recent DUI convictions, which might make it difficult to place K.B., a nonrelative, with him, at least until he completed his court-mandated classes, work furlough, and fine payments. K.B. had told her foster parent that she doesnt miss anybody and also said she would like to live with her aunt.

At the May 4, 2006, detention hearing on the supplemental petition, the juvenile court ordered that the children be detained.

In a jurisdiction/disposition report prepared on May 15, 2006, the social worker reported, as to the three older half-siblings, that dependency for the then 17-year-old girl was dismissed when she turned 18 and that appellants reunification services as to the then 15-year-old girl and the then 12-year-old girl were terminated on February 1, 2005, after she failed to reunify with them. Appellant had provided the social worker with two letters from family members who offered to provide care for K.B. and Ken. The social worker had left a message for one of the relatives and had provided the other with information so that she could make a LiveScan appointment.

The social worker recommended that the children be placed out of home and that reunification services be provided to the fathers of both children. The social worker also recommended that appellant be denied reunification services.

On June 28, 2006, the Agency filed an addendum to its report for the continued jurisdictional/dispositional hearing. There were now three peoplea family friend, appellants first cousin, and appellants sisterwho were interested in having the children placed with them. LiveScan information had been given to two of them; however, there was no indication that either had made or attended a LiveScan appointment. Also, there were concerns that these peoples support for appellant and their failure to acknowledge appellants problems with childrearing would make their ability to protect the children and be accountable to the Agency problematic.

Earlier in June, the social worker had given appellant a list of local Narcotics Anonymous meetings and a drug test referral, but had not received any indication that appellant had followed through on the referrals. Appellant was mostly consistent in her visits with both children. K.B. was doing well in her foster home, although she had just recently begun to display anger there for the first time and a therapy appointment had been set up for her. Ken was making significant progress at the Seneca Center. He had become focused and was participating well. He responded to and required intensive and consistent structure. Kens interactions with his father, Elvin V., were very positive. It was recommended that Ken attend the Seneca school as a day treatment student after he completed the 90-day evaluation. The social workers recommendations remained the same as at the time of the previous report.

At the July 3, 2006, jurisdictional hearing on the section 387 petition, the Agency told the court that it was no longer recommending reunification services for the two alleged fathers because it believed that services have been maxed out. It also recommended that the matter be set for a section 366.26 hearing. At the conclusion of the hearing, the court found true the allegations of the supplemental petition.

In an addendum report prepared on July 10, 2006, the social worker provided its changed dispositional recommendations, which included no reunification services for the alleged fathers, Elvin V. and Willie W., because family maintenance services were provided to appellant from January 26, 2004 through May 1, 2006.

At the July 11, 2006, dispositional hearing, the court found that returning the children home would cause a substantial danger to their physical or emotional well-being and that appellant had not been compliant with her case plan, and ordered the children placed in foster care. The court found by clear and convincing evidence that reunification services should be denied to appellant pursuant to section 361.5, subdivision (b)(10), in that she had failed to reunify with the childrens half-siblings. The court also denied appellant reunification services because family maintenance services had been provided from January 26, 2004 to May 1, 2006, and appellant did not comply with the courts in-home conditions and had not alleviated or mitigated the problems causing the initial dependency. The court also denied reunification services to the two alleged fathers.

The court ordered a permanent plan of a planned permanent living arrangement, having found that a section 366.26 hearing was not in the best interest of the children because they were not proper subjects for adoption and there was no one willing to accept legal guardianship. The court ordered the Agency to arrange for visitation between the children and their parents as frequently as possible and consistent with the childrens well-being.[3]

On July 28, 2006, appellant filed a notice of appeal.

Discussion

I. Res Judicata

Appellant contends the juvenile courts order on the supplemental petition, filed pursuant to section 387, was barred by res judicata because it had made a contrary order on the same issue and based on the same facts a week previously.

Res judicata places  limitations on the opportunity in a second action to litigate claims or issues that were litigated, or could have been litigated, in a prior action. . . . [Citation] (7 Witkin, Cal. Procedure (4th ed. 1997) Judgments,  282, p. 822.)

Appellant never raised the defense of res judicata in the juvenile court.

Res judicata is not a jurisdictional defense, and may be waived by failure to raise it in the trial court. (7 Witkin, Cal. Procedure [, supra],  281, p. 821.) (David v. Hermann (2005) 129 Cal.App.4th 672, 683; accord, Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 89.) Accordingly, we find that appellant has forfeited this claim on appeal.[4]

We also observe that, at the status review hearing on April 26, 2006, the court not only anticipated the imminent filing of a section 387 petition, but also encouraged the Agency to remove the children from the home as quickly as possible, stating, for example: I dont think that there is any law that I understand that requires a child to remain with a parent who may cause further detriment and damage to the child while were waiting for paperwork to be filed in the court. The court also said: I think that [in] the interim, while the [section] 387 [petition] is being filed, I dont see why the children cannot be removed. It appears that there is a detriment to the children, and they are at risk the longer they stay in the mothers care.

The court also stated: Im not prepared to adopt the recommendations that are here. And so, we need to modify these recommendations. [] Im going to just maintain all prior orders right now with the understanding that the children are going to be removed from [appellants] care and a [section] 387 [petition]will be filed . . . . The court later stated that it would adopt the Agencys recommendations to be sure the appellate admonition was included, and concluded: All prior orders are continued except as modified herein. In light of the extensive discussion at the hearing regarding the need to remove the children from appellants care as soon as possible and the courts discussion of the modified findings and orders, appellants bald assertion in her opening brief that, at the April 26 review hearing, the court found that the childrens placement with their mother was necessary and appropriate, and [the court] ordered that family maintenance should continue, appears to be disingenuous and based on a distorted reading of the written order as well as a purposeful disregard of the hearing transcript.

Moreover, in light of the procedural posture of the case, even were we to address the res judicata claim on the merits, it cannot be said that the issues raised in the section 387 petition  could have been litigated  in the status review hearing (see 7 Witkin, Cal. Procedure, supra,  282, p. 822), given that, to begin the process of officially detaining the children, the court and parties understood that the filing of a petition pursuant to section 387 was a procedural prerequisite. Thus, even were the issue not waived on appeal, appellants res judicata claim could not succeed.

II. Sufficiency of the Evidence Regarding Removal

of the Children from Appellants Custody

Appellant contends there was insufficient evidence to support the order removing the children from her custody.

We review the record in the light most favorable to the trial courts order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.] (In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.)

Appellant asserts that the juvenile court, in finding that removing the children from appellants custody was necessary, left out a very important term required by section 361.5, subdivision (c)(1), i.e., that the childrens physical health could not be protected without removal. First, appellants citation to section 361.5 appears to be a mistake; she is apparently referring to section 361, subdivision (c)(1), which provides in relevant part: A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . .: [] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody.

Second, appellant offers no record cite in support of her assertion. Our examination of the record reveals that, in its written dispositional order of July 11, 2006, the court adopted the findings and orders on pages 1 thru 4 of the social workers report dated 7/11/2006 [which] are incorporated as a part of this minute order. On page two of that report, the recommended order stated, inter alia: [t]here is clear and convincing evidence that the children must be removed from the physical custody of the mother . . . and the order placing the children in that home is set aside, based upon the following: [] Leaving or returning the children to the home would cause a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the children and there are no reasonable alternative means to protect the children. The courts verbal findings were identical.

Apparently, appellant is challenging the courts failure to quote the statutes use of the term physical health in discussing the lack of alternative means to protect the children. Appellant offers no authority for the proposition that an order is defective unless it precisely tracks the words of section 361, subdivision (c)(1). She does cite In re Isayah C., supra, 118 Cal.App.4th 684, but offers no specific page cite or explanation of the cases relevance here. That case involved a nonoffending parent and the question was whether evidence of a threat to the childs physical health, not just emotional well-being, was required to justify removal pursuant to section 361, subdivision (c)(1). (In re Isayah C., at pp. 697-698.) The court found that such evidence was required and further found that the court did not seem to understand this requirement. (Ibid.)

Here, we do not believe that the courts language reflects a misunderstanding of the requirements of section 361, subdivision (c)(1). (Compare In re Isayah C., supra, 118 Cal.App.4th at p. 698.) Moreover, we disagree with appellants claim that there is no evidence in the record that there was in fact a threat to the childrens physical health were they to remain in appellants custody. The court found true the allegations in the supplemental petition, which stated that appellant had been noncompliant with her case plan, specifically alleging that she had not attended a drug treatment program; had not drug tested since May 2005, and all six prior tests were positive for cocaine and/or marijuana; had not consistently attended therapy, resulting in termination of her therapy; had not submitted to psychological testing; had not followed up on a referral for a medication evaluation; had not taken the children to therapy, resulting in termination of their therapy; had refused to participate in family therapy sessions or discuss the childrens treatment plans; had refused to avail herself of voluntary services for Ken; and had failed to meet the educational needs of the children, including failing to cooperate with the school districts in their attempts to meet the childrens educational needs, suddenly withdrawing the children from their school without notification or planning to ensure their educational needs could be met by the new school, and failing to ensure the childrens regular school attendance.

Given appellants failure to comply with crucial aspects of her case plan after some 28 months of family maintenance services, including virtually all required interventions related to her ongoing substance abuse, her own mental health issues, and her childrens emotional and educational needs, we conclude that substantial evidence supports the juvenile courts findings, by clear and convincing evidence, that K.B. and Kens healthboth physical and mentalcould not reasonably be protected if they remained in appellants custody. Unlike the nonoffending father in In re Isayah C., where the only potential harm to the children would have been the emotional impact of having to move in with relatives who lived at a distance, the court in this case reasonably found that appellants unresolved issues, even with many months of services offered, were causing significant harm to K.B. and Ken and that they would continue to be at risk if they remained in her care. (See In re Isayah C., supra, 118 Cal.App.4th at pp. 695-696.)

III. Sufficiency of the Evidence Regarding Denial of Reunification Services to Appellant

Appellant contends there was insufficient evidence to support the order denying her reunification services.

At the conclusion of the July 11, 2006, dispositional hearing, the court stated: There is clear and convincing evidence that reunification services should be denied to the mother as follows:

Pursuant to section 361.5[, subdivision] (b)(10) that the court ordered termination of reunification services for any siblings or half-siblings of the children because the mother failed to reunify with the siblings or half-siblings after having been removed from the custody of the mother, and that person, meaning the mother, has not subsequently made reasonable efforts to treat the problems that led to that removal.

Prior services have been provided as follows:

Family maintenance services were provided to the mother from January 26, 2004 to May 1st, 2006. [] The mother did not comply with the courts in-home conditions ordered on January 26, 2004 as follows: drug treatment and drug testing, therapy for herself and the children, or meet the educational needs of the children. [] In spite of these services, the mother has not alleviated or mitigated the problems causing the initial dependency.

There is a presumption in dependency cases that parents will receive reunification services. [Citation.] Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section [361.5], subdivision (b). [Citation.] Section 361.5, subdivision (b) is a legislative acknowledgement that it may be fruitless to provide reunification services under certain circumstances. [Citation.] (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 95-96.)

Section 361.5, subdivision (b), provides in relevant part: Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [] . . . . [] (10) That 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 half-sibling had been removed from that parent or guardian pursuant to Section 361and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, 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 that parent or guardian.

Thus, for this section to apply, the juvenile court must find both that (1) the parent previously failed to reunify with a sibling and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling. [Citations.] The inclusion of the no-reasonable-effort clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems. [Citations.] (In re Albert T. (2006) 144 Cal.App.4th 207, 217-218, fn. omitted.)

There is some disagreement in the case law regarding whether subsequent reasonable efforts to treat the problem in section 361.5, subdivision (b)(10), refers to the parents efforts after removal of the siblings from the home or after termination of reunification services as to those siblings. (Compare Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 98 [reasonable efforts requirement refers to efforts made since removal of siblings] with In re Harmony B. (2005) 125 Cal.App.4th 831, 842 [reasonable efforts requirement refers to efforts made since termination of reunification services with respect to siblings].)

We review an order denying reunification services under section 361.5, subdivision (b), for substantial evidence. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.)

In the present case, the three half-siblings were detained, along with K.B. and Ken, on December 17, 2003. Dependency for the then 17-year-old girl was dismissed when she turned 18 years old. Appellants reunification services for the then 15-year-old girl and the then 12-year-old girl were terminated on February 1, 2005, after she failed to reunify with them. Here, it makes no difference whether the question of reasonable efforts is applied to efforts made since removal of the siblings (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 98) or since reunification services were terminated as to the siblings (In re Harmony B. (2005) 125 Cal.App.4th 831, 842) since, in either case, appellant would have had sufficient time (between one and two and one-half years) to demonstrate the efforts she made to treat the problems that led to the older half-siblings removal.

Since removal of the siblings and/or termination of reunification services as to the siblings, as appellant points out, the record reflects that she made efforts in some areas of her life to improve her situation. However, the record also contains a great deal of evidence that she did not make any genuine effort to overcome a major obstacle to her successful parenting, the problem at the root of the removal of K.B. and Kens half-siblings, that is, her substance abuse. While appellant is correct that, in a May 25, 2005 status review report, the social worker described appellant as a functioning substance abuser, she neglects to provide the entire statement, in which the social worker reported that appellant had continued to test positive for drugs and was a functioning substance abuser whose behavior place[s] her children at risk (adequate supervision), it also represents a substantial personal health risk. . . . [] It is crucial that [appellant] resume her out-patient recovery program . . . .

By May 2006as the Agency alleged in its supplemental petition and as the juvenile court subsequently found trueappellant had not drug tested in a year, with all six prior tests showing cocaine and/or marijuana use; she had not participated in a drug treatment program; and she had not consistently attended therapy, resulting in termination of her therapy. In light of this evidence that appellant did virtually nothing, other than a short period of therapy, to address her substance abuse issues, which were among the core problems leading to the removal of the three half-siblings from her custody, we conclude that substantial evidence supports the juvenile courts finding, pursuant to section 361.5, subdivision (b)(10), that appellant had not made a reasonable effort to treat the problems that led to removal of K.B. and Kens half siblings. (See Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.)[5]

IV. The Courts Alleged Failure to Consider Placing the Children with Relatives

Appellant contends the court abused its discretion when it placed the children in foster carewithout fully considering placement with three relatives who had requested custody.

Section 361.3, subdivision (a), provides, in relevant part: In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but not be limited to, consideration of all the following factors:

(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs.

(2) The wishes of the parent, the relative, and the child, if appropriate. . . .

(5) The good moral character of the relative and any other adult living in the home . . . .

(6) The nature and duration of the relationship between the child and the relative . . . .

(7) The ability of the relative to do the following: . . .[] (D) Protect the child from his or her parents. . . .

(8) The safety of the relatives home. For a relative to be considered appropriate to receive placement of a child under this section, the relatives home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309.[6]

Here, the social workers report filed on June 28, 2006, reflects that the social worker had received no indication that the interested relatives had completed a LiveScan check. Without completion of this basic threshold requirement, none of these relatives could be considered for placement and there was nothing more for the court to consider. (See  361.3, subd. (a)(8).)

There was no abuse of discretion.

V. The Visitation Order

Appellant contends the courts visitation order delegated too much authority to the social workers.

At the dispositional hearing, at the Agencys request, the juvenile court ordered the Agency to arrange for visitation between the [children] and the parents as frequently as possible consistent with the [childrens] well being.

The order tracks the language of section 362.1, subdivision (a), which provides, in relevant part: 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, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows: [] (1)(A) . . . for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child.

First, we observe that appellant failed to object to the visitation order in the juvenile court, thus waiving the issue on appeal. Second, even were we to address the issue, given that it is primarily a legal one, it would fail on the merits.

While the juvenile court may not delegate to the social worker absolute discretion to determine whether visitation will take place, it may delegate . . . the responsibility to manage the details of visitation, including time, place and manner thereof. (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) In In re Moriah T., the reviewing court upheld a visitation order quite similar to the one at issue here, which specified that visitation shall be consistent with the well-being of the minor[s], and at the discretion of [CPS] as to the time, place and manner. (Id. at p. 1373.) The court explained: Requiring a disposition order to specify frequency and length of visitation compromises the ability of the county agency to fulfill its statutory mandate to supervise each case in a manner consistent with the childs best interests. . . . A juvenile court cannot be expected to anticipate and promptly respond to changing dynamics of the relationship between parent or guardian and child, which changes may dictate immediate increases or decreases in visitation or demand variations in the time, place and length of particular visits. (Id. at p. 1376.)

The appellate court concluded that the frequency and length of visits are simply aspects of the time, place and manner of visitation. Accordingly, the juvenile court may grant to the county agency the discretion to determine the frequency and length of visitation ordered by the court. (In re Moriah T., supra, 23 Cal.App.4th at pp. 1376-1377.) The court further noted that the role of the agency and its agent is subject to the juvenile courts supervision and control. Accordingly, if the agency is abusing its responsibility in managing the details of visitation, the parent or guardian may bring that matter to the attention of the juvenile court by way of a section 388 petition to modify the visitation order. (Id. at p. 1377.)[7]

We agree with the court in In re Moriah T. that the frequency and length of visits are part of the time, place, and manner of visitation. Hence, the juvenile court did not abuse its discretion when it granted the Agency discretion to determine the frequency of visitation between appellant and the two children.

VI. Appellants Request for Sanctions

On June 27, 2007, appellant filed a motion to strike respondents brief or to disregard portions of the brief and to sanction counsel for violation of court rules, misrepresentation of the record, and lack of civility.

On July 5, 2007, we granted both appellants and respondents request to strike the original respondents brief and further granted respondents application for leave to file an amended respondents brief. The sole change to respondents brief was to omit the last names of the childrens fathers. In the July 5 order, we also denied appellants motion for sanctions on the ground of incivility. However, we stated that the motion for sanctions for failure to adequately cite to the record and for allegedly misrepresenting the record would be considered with the appeal.

We now deny the remainder of appellants motion. While respondents brief is somewhat sloppy, particularly in terms of citing to the record appropriately, its deficits are not so severe as to warrant imposing sanctions. This is especially true in light of the fact that appellants briefs contains many of the same deficiencies appellant claims are present in respondents brief. For example, appellants counsel stunningly fails to once acknowledge, in her statement of facts or in the portion of her opening brief alleging res judicata, that, at the April 26, 2006, hearing, the juvenile court repeatedly stated that the children needed to be removed from appellants home and that the Agency should file a section 387 petition as soon as possible. Moreover, appellants counsel also fails to cite to the record in a portion of appellants argument (when she states that the court left out an important term from its findings at the July 11, 2006 hearing) in which such citation would have been useful to our review.

We hope that counsel for both parties will learn from this discussion that selective presentation of the facts is not useful to anyone and also trust that respondent, in particular, will take the time to prepare and file more thorough, well-supported briefs in the future.

Disposition

The orders appealed from are affirmed. The remainder of appellants motion to strike or disregard portions of respondents brief and for sanctions is denied.

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Kline, P. J.

We concur:

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Haerle, J.

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Richman, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Because this appeal involves only K.B. and Ken, these facts will not focus on matters relating primarily to the three oldest children.

[3] The court also found that Elvin V. was the presumed father of Ken.

[4] Appellant claims that the waiver rule does not apply because a party does not forfeit the right to appeal the sufficiency of the evidence by failure to object. Appellant, however, did not raise the sufficiency of the evidence in this claim, but instead solely based her argument on the question of res judicata. While respondent, in its respondents brief, addressed whether substantial evidence supports the juvenile courts findings that the allegations of the supplemental petition were true, this argument is irrelevant to the issue raised by appellant. Thus, sufficiency of the evidence is inapplicable here, where we have found that appellant waived the issue of res judicata by failing to raise it in the juvenile court.

[5] Given this conclusion, we need not address appellants secondary claim (raised in her reply brief in response to an argument in respondents brief) regarding whether substantial evidence supports the juvenile courts finding that appellant was not eligible for reunification services due to her having already received 28 months of family maintenance services.

[6] Section 309 requires consideration of the results of a criminal records check and a check of allegations of prior child abuse or neglect with respect to the relative or extended family member and other adults in the home.

[7] In reaching these conclusions, the court in In re Moriah T. disagreed with In re Jennifer G. (1990) 221 Cal.App.3d 752, 757, which had, in dictum, criticized the visitation order in question there for failing to determine the frequency and length of visitation. (In re Moriah T., supra, 23 Cal.App.4th at p. 1375.)