Opinion
E068959
12-11-2017
D.P., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle Blakemore, County Counsel, and Michael A. Markel, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J266391, J266392 & J266393) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Christopher B. Marshall, Judge. Petition dismissed. Law Offices of Valerie Ross and Valerie Ross for Petitioner. No appearance for Respondent. Michelle Blakemore, County Counsel, and Michael A. Markel, Deputy County Counsel, for Real Party in Interest.
I
INTRODUCTION
Petitioner D.P. (Mother) seeks an extraordinary writ to vacate the orders of the juvenile court denying her reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26 as to her three children J.P., L.P., and M.P. Mother contends the juvenile court erred in denying her reunification services under section 361.5 subdivision (b)(6), and finding reunification was not in the children's best interest. For the reasons explained below, we dismiss the petition.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and Family Services (CFS) in July 2016 after the oldest child, then nine-year-old M.P., had been hospitalized on two occasions due to emotional breakdowns. On the second hospitalization, M.P. disclosed that she had been sexually abused on three occasions by her father, L.P. (Father). M.P.'s emotional breakdowns coincided with when Father could no longer work and began caring for M.P. and her sisters full time while Mother worked. During the initial investigation, the social worker learned that Father had a substantiated sexual abuse allegation against him in May 2006 as to his then four-year-old daughter, H.P. Although criminal charges were never filed, the child described being digitally penetrated by her " 'daddy' " who she identified as Father. As a result of the incident, the mother of H.P. obtained a restraining order against Father. Mother in this case believed H.P.'s mother made false allegations of sexual abuse against Father.
Father is not M.P.'s biological father, however, both Mother and Father reported they were married prior to her birth. Father was named as the father of all three children.
When the social worker initially interviewed M.P., she denied Father had sexually abused her. M.P., however, later disclosed that she had been physically abused by Father. M.P.'s then eight-year-old sister L.P. and six-year-old sister J.P. corroborated the physical abuse allegations. L.P. described Father as slapping the children on the face and Mother yelling at them. J.P. reported witnessing her sisters being hit with a fist by Father. Five days later during a Children's Assessment Center (CAC) interview, M.P. disclosed Father, while naked, told her to " 'hop on top of it.' " Mother and Father claimed M.P.'s sexual abuse allegations were behavior related. Mother also believed that M.P. was lying because she was mad at both Father and herself, and that M.P. had gotten the idea after viewing old cell phone pictures of Mother and Father engaged in oral sex. The social worker detained all three children on July 13, 2016.
On July 15, 2016, CFS filed petitions on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling).
The children were formally detained at the July 18, 2016 detention hearing. At that time, the juvenile court ordered L.P. and J.P. to be returned and detained with Mother if Father had moved out of the family home. M.P. was ordered detained out of the home. The court also ordered that Father was not to have contact with any of the children outside of CFS supervision.
On July 29, 2016, M.P. reported that Father had come into her bedroom and told her to lock the door so her sisters could not come in and to take off her clothes and lay on top of him. M.P. explained that she took off her pants and underwear but left her shirt on, and laid on top of Father who was naked. M.P. also stated she felt her "private" touch Father's "private" and she felt something wet. She indicated this occurred three times after her family moved to Barstow. M.P. also noted that the first two times occurred before she went to the hospital the first time and the third time occurred right before she went to the hospital the second time. When asked whether Father said anything, M.P. stated that he told her not to tell anyone. M.P. also disclosed that Father would show her pictures of naked adults and children on his cell phone, engaged in sexual acts. M.P. reported that she attempted to tell Mother what happened but Mother became very angry and yelled at her. In addition, while in temporary placement, J.P. reported that Father would walk around the house naked as an explanation of why she, J.P., was doing the same in the foster home. L.P., however, stated Father did not walk around naked but in his underwear and socks.
M.P. had been in protective custody since July 13, 2016. She had not had any behavioral problems until July 27, 2016, when she had her first visit with Father. M.P also had several episodes of crying and yelling with her foster mother after visits with Mother.
At the August 8, 2016 jurisdictional/dispositional hearing, the matter was set contested by Father and minors' counsel, who disagreed with the social worker's recommendation to provide Father with reunification services. The court advised Mother that she is not to supervise Father's visits with L.P. and J.P., and that Father's visits are not to take place at the family residence. The court further ordered L.P. and J.P. to remain with Mother on the condition Father did not reside in the home or have contact with the children outside of CFS supervision.
On September 9, 2016, prior to the contested hearing, the social worker detained L.P. and J.P. and removed the girls from Mother's care. On September 13, 2016, CFS filed second amended petitions on behalf of all three girls to add additional allegations. L.P. and J.P. were removed from Mother's care because Mother had allowed Father into the family residence and had allowed Father to have contact with the children without CFS supervision. J.P. informed the social worker that Father had been to the house to visit the puppies because the puppies were lonely. She also said they would Skype with Father and go to the store with him. J.P. further stated that she went to Wal-Mart with Father and received toys from Father. J.P. also told the social worker that Father comes to her house to help Mother, picks her up after school, and sees Father at her paternal grandmother's house. L.P. confirmed J.P.'s statements to the social worker. L.P. also stated that Mother told her not to tell the social worker or she would be taken away again. J.P. reported Mother told her not to tell anyone at school about Father's contact with J.P. When confronted with the unsupervised contact, Mother and Father both denied the children had contact with Father outside of CFS supervision.
In addition, M.P. underwent a forensic interview at the CAC on September 6, 2016, where she disclosed in greater detail the sexual abuse perpetrated on her by Father. M.P. reported Father had stated Mother did not like sex and was only willing to have sex twice a year. M.P. disclosed Father would show her pictures of nude people having sex and ask her if she wanted to have sex once they had their own house. M.P. described incidents involving oral copulation, mutual masturbation, and sexual penetration with Father. M.P. was very clear that she told Mother about the sexual abuse but her response was, " 'let's keep this to ourselves.' " Because she needed to talk about the sexual abuse, M.P. intentionally acted out in order to be sent to Loma Linda Behavioral Medical Center the second time. When M.P. told Mother that she had disclosed the sexual abuse to the medical staff, Mother cried and stated "they were going to take [Father] to jail." Prior to the CAC interview, Mother told M.P. " 'don't tell anyone what your dad did because we are finally getting CFS off our back.' " Altogether, M.P. recalled telling Mother about the sexual abuse at least five times, with Mother crying two of the times when she learned M.P. had disclosed the sexual abuse to others.
In October 2016, the social worker reported L.P. disclosed that Father had been showing her pictures of naked people having sex but she did not tell Mother because when M.P. told Mother about the pictures, M.P. got in trouble and was grounded. J.P. disclosed that sometimes she would wake up at night to get a drink of water and she could hear M.P. and Father whispering in M.P.'s bedroom with the door shut. In addition, law enforcement learned that Father had sexually abused a minor in the state of Washington in 2013. Specifically, Father had sexually abused C.B., a developmentally delayed 16-year-old girl, when he and Mother were living with C.B. and her mother in 2013. The child welfare agency in Washington was contacted but had not pursued the matter because C.B. had turned 18 when the sexual abuse became known.
The social worker also reported that Mother had completed seven of her eight therapy sessions but still believed M.P. was lying, did not understand why the court removed L.P. and J.P. from her care, and did not understand the need to develop a plan to protect her children. Based on all the additional information, the social worker recommended that the court deny reunification services to both parents as to all three girls.
The contested jurisdictional/dispositional hearing was held on October 14, 2016. After hearing argument, the court found all the allegations in the second amended petitions true, including the allegation as to M.P. that: "The mother . . . knew or should have known about the sexual abuse to the child, [M.P.,] by the [Father], and failed to take adequate measures to protect her from future abuse." The court also found true the allegations against Mother regarding L.P. and J.P. that: "The mother . . . knew or should have known about the sexual abuse to the child, [M.P.] by [Father], and failed to take adequate measures to protect her from future abuse, which places the children, [L.P.] and [J.P.] at risk of similar abuse."
After hearing further argument, the court denied reunification services to the parents under section 361.5, subdivision (b)(6), and set a section 366.26 hearing. The court found Mother had been made specifically aware of Father's conduct with M.P. and his attempts to do the same with L.P. The court explicitly found that Mother would not benefit from services and the best interest of the children would not be served by offering Mother reunification services.
Mother's trial counsel filed a notice of intent to file a writ petition on October 20, 2016. However, on November 28, 2016, trial counsel filed a "no issue" letter with this court. Subsequently, on December 2, 2016, this court dismissed the writ petition by order filed in case No. E067065.
On February 14, 2017, the court held the initial section 366.26 hearing. The social worker recommended a permanent plan of planned permanent living arrangement (PPLA) for the children pending approval of the Interstate Compact on the Placement of Children (ICPC) as CFS was assessing the maternal grandparents living in Washington state for placement and possible adoption of the girls. The juvenile court, however, continued the hearing as a private counsel had been substituted in to represent Father. The court heard the matter two days later, on February 16, 2017, and ordered PPLA as the permanent plan for the children.
In June 2017, the foster parent for L.P. and J.P. filed de facto parent petitions, requesting the court to grant her de facto parent status. On July 7, 2017, the court granted the requests for de facto parent status.
The social worker recommended a section 366.26 hearing be set. Additionally, based on statements made by the maternal grandfather and the two older girls' desires to stay with their foster mother, the social worker recommended adoption by the children's current caregiver/de facto parent. At a hearing on August 16, 2017, the juvenile court followed the social worker's recommendations and set a section 366.26 hearing for December 14, 2017. At that time, Mother's trial counsel objected to the setting of the section 366.26 hearing but offered no affirmative evidence, and indicated that Mother would be filing a section 388 petition. Near the close of the hearing, the court advised Mother of her writ rights as follows: "The Court has set a hearing to make the permanent plan for the children of adoption. If you wish to preserve your right to appeal the Court's decision, you must file a petition for extraordinary writ. If you intend to file a petition for a writ, you must file a notice of intent to file a writ petition and request for the record with the Juvenile Court clerk within seven days of today's date." Mother and her trial counsel were present and heard the court's admonition.
Nonetheless, two months later, on October 23, 2017, Mother's new counsel filed a motion for relief from default for failure to file a timely notice of intent to file a writ petition in this case, case No. E068959. Mother claimed that she was confused at the August 16, 2017 hearing because there was discussion regarding a section 388 petition and a petition for extraordinary writ.
On October 27, 2017, this court granted Mother's relief from default in failing to file a timely notice of intent to file a writ petition.
III
DISCUSSION
Mother argues the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(6), because the evidence was insufficient to support the juvenile court's finding the severe sexual abuse to M.P. by Father was perpetrated with the actual or implied consent of Mother. County counsel responds the juvenile court's dispositional findings and orders became final and binding after Mother failed to appeal the issue following the dispositional hearing on October 14, 2016, and under the doctrine of res judicata, Mother may not now attack those findings and orders. County counsel also argues Mother forfeited this issue by failing to raise it below at the dispositional hearing on October 14, 2016, and in the alternative, asserts the juvenile court's decision was clearly supported by substantial, credible evidence. As we will explain, we lack jurisdiction to consider Mother's challenge to the October 14, 2016 order since the order is no longer appealable.
" 'Dependency appeals are governed by section 395, which provides in relevant part: "A judgment in a [dependency] proceeding . . . may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment . . . ." ' " (Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 26; see In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [the dispositional order in a dependency proceedings is the appealable " 'judgment' "].) " 'Therefore, all subsequent orders are directly appealable without limitation, except for post-1994 orders setting a [section 366.26] hearing when the circumstances specified in section 366.26, subdivision (l), exist. [Citations.]' " (Joe B., at p. 26; see In re Tabitha W. (2006) 143 Cal.App.4th 811, 817 [As an exception to these general tenets, however, "[a]ll orders issued at a hearing in which a section 366.26 hearing is ordered are subject to section 366.26, subdivision (l) and must be reviewed by extraordinary writ."].)
"The dispositional order is the 'judgment' referred to in section 395." (In re S.B. (2009) 46 Cal.4th 529, 532.) " ' "A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." [Citations.]' " (Ibid.) This rule is based upon the notion that " '[p]ermitting a parent to raise issues going to the validity of a final earlier appealable order would directly undermine dominant concerns of finality and reasonable expedition,' including 'the predominant interest of the child and state . . . .' [Citation.]" (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018 (Sara M.).)
In Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391 (Wanda B.), the court held that where the juvenile court had issued a dispositional order denying the mother reunification services, and she did not appeal that order, she could not, six months later, challenge the order denying services in conjunction with a writ petition from an order setting a 366.26 hearing. (Id. at pp. 1395-1396.) It reasoned: "Because the mother did not appeal from or otherwise seek review of the order denying her services in a timely fashion, it is now a final judgment. This court is accordingly without jurisdiction to consider her current challenge by means of her writ petition." (Id. at p. 1396; see Sara M., supra, 36 Cal.4th at p. 1018 [parent precluded from challenging by writ petition a prior order providing for reunification services from which she did not appeal].)
Here, the juvenile court denied services to Mother at the October 14, 2016 dispositional hearing. Mother thereafter filed a notice of intent to file a writ petition in case No. E067065. However, Mother's trial counsel filed a "no issue" letter with this court, conceding that no legal or factual issue existed upon which to base a writ petition. As such, this court issued an order dismissing the writ petition in case No. E067065 on December 2, 2016. Mother may not now, through another writ petition, which solely challenges the juvenile court's October 2016 order denying her services, argue that the court had previously erred in denying her services or bypassing her services under section 361.5, subdivision (b)(6). (Sara M., supra, 36 Cal.4th at p. 1018; Wanda B., supra, 41 Cal.App.4th at p. 1396; In re T.G. (2010) 188 Cal.App.4th 687, 692 [a parent may not generally attack " 'the validity of a prior appealable order for which the statutory time for filing an appeal has passed' "].) The October 14, 2016 dispositional order denying Mother reunification services is already a final judgment. Hence, we lack jurisdiction to consider Mother's challenge to the lower court's determinations not to provide reunification services to Mother.
Mother's entire writ is devoted to challenging the dispositional order denying her reunification services pursuant to subdivision (b)(6) of section 361.5.
IV
DISPOSITION
Mother's petition for extraordinary writ review is dismissed. Because the 366.26 hearing is set for December 14, 2017, our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b).) The request for stay is granted.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.