Opinion
1 A094158
03-28-2002
In re BRITTANY K., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. DIANNE C., Defendant and Appellant; ELLEN J., Intervener and Appellant. A094158 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE Filed
In re BRITTANY K., a Person Coming Under the Juvenile Court Law.
SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,
v.
DIANNE C., Defendant and Appellant;
ELLEN J., Intervener and Appellant.
A094158
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT DIVISION THREE
Filed 2/28/02
(Sonoma County Super. Ct. No. SJ328470 & SJ328471)
Trial Court: Sonoma County Superior Court
Trial Judge: Carla M. Bonilla, Temporary Judge. (Pursuant to Cal. Const. , art. VI, 21.)
Konrad S. Lee for Defendant and Appellant Diane C.
Carole Greeley for Intervener and Appellant Ellen J.
Steven M. Woodside, County Counsel and Bruce D. Goldstein, Deputy County Counsel for Plaintiff and Respondent.
Francia M. Welker for the Minors.
CERTIFIED FOR PARTIAL PUBLICATION(FN*)
McGuiness, P.J.
Appellants Dianne C. and Ellen J., the birth-mother and maternal grandmother of minors Brittany and Amanda K. (the Minors), appeal from permanent placement plan orders finding the Minors adoptable, terminating Diannes parental rights, and denying placement of the Minors with the maternal grandmother. On this appeal, Dianne C. (Mother) contends the juvenile court improperly determined that she had failed to meet her burden of demonstrating under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A)(FN1) that her parental rights should not be terminated. Ellen J. (Grandmother) contends that the order terminating Mothers parental rights is void because it was made by a court commissioner sitting as a referee without the stipulation of appellants, and without subsequent approval by a judge; and that the order referring the Minors for adoption must be reversed because respondent Sonoma County Human Services Department (Department) failed properly to assess Grandmother for relative placement, and the juvenile court failed to place the Minors with the Grandmother or explain why it was not doing so. Each of the two appellants joins in the arguments of the other.
Separately, the Minors move this Court to take additional evidence concerning the Minors current circumstances, and argue that in light of alleged changed circumstances with respect to the Minors prospective adoptive parents the case should be reversed and remanded for further proceedings to determine whether long-term foster care or guardianship is the best alternative for the Minors. Concurring in part in the contentions of the Minors, appellants Mother and Grandmother join in the request that the matter be reversed and remanded for further proceedings.
All parties, including the respondent Department, acknowledge this to be an unusually difficult and painful case. Based on our careful review of the complete record, including our previous decision denying Mothers petition for writ review of the juvenile court orders terminating reunification services and setting a section 366.26 permanency planning hearing, we conclude that the juvenile court did not err or abuse its discretion, and there are no grounds for reversal. We therefore affirm the juvenile courts orders in their entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND(FN2)
A. Proceedings Through the Contested 12-Month Hearing(FN3)
The original juvenile dependency petition in this matter was filed on February 26, 1999, in Mendocino County. Among other things, the petition alleged that on February 22, 1999, Mother had punched the Minors, hit them in the face and head causing bruising, and had purposely shoved them while they were standing on a bench, causing them to fall; Mother had physically abused the Minors on more than one other occasion; voluntary family maintenance services had not alleviated Mothers abusive treatment of the Minors; Mother suffered from emotional, psychological and personality disorders as a result of a head injury; the Minors father had a history of violence and criminal convictions; and he had failed to provide the Minors with any financial, emotional or physical support. On March 23, 1999, the petitions were sustained, and the Minors ordered detained.
At the time of their removal from Mothers custody, the Minors were initially placed with appellant Grandmother. Without informing the responsible social worker, and in defiance of a court order barring her from doing so, Grandmother returned the younger Minor, Amanda, to Mother. In view of this, and Grandmothers persistent failure to cooperate with dependency officials, the Minors were removed from Grandmothers custody and placed in emergency foster care. Subsequently, both the Mendocino County social worker and the emergency foster mother reported that Grandmothers contacts with them were "hostile and threatening." Following Mothers change of residence, the matter was transferred from Mendocino to Sonoma County in May 1999. On May 26, 1999, during a face-to-face meeting, Mother threatened to kill Erica Crowell, the Department court investigator assigned to the Minors. Immediately following the June 10, 1999 hearing for consideration of the Departments disposition report, Mother approached Crowell from behind, struck her in the back with her closed fist, and yelled "fuck you." A restraining order was thereafter issued against Mother barring her from approaching Crowell.
The Departments dispositional report addressed the available opportunities for the Minors care and custody. Included in the dispositional report were professional medical assessments of Mother stating that in view of the emotional, psychological and personality disorders resulting from her head injury, "serious lapses of judgment [on her part] are likely" in the absence of guaranteed, reliable, consistent and easily accessible support systems. The dispositional report recommended that the Minors be retained as dependents and that reunification services be continued for the Mother.
The report also recommended that Grandmothers request for relative placement of the Minors be denied because of concerns about her willingness to cooperate with the Departments reunification efforts and her inability to protect the Minors. These concerns were based on Grandmothers previous violation of the juvenile courts orders with respect to returning one of the Minors to Mothers custody; her refusal to return the Minors to the Mendocino County Social Services Department until threatened with the issuance of a warrant; her hostility and threatening behavior towards both the Mendocino County social worker and the former foster parents; her demonstrated tendency to minimize the nature and extent of the physical abuse previously perpetrated on the Minors; her history of subjecting her own children, including Mother, to corporal punishment; and the physical distance between Grandmothers residence in Davis and Mothers residence in Rio Nido, Sonoma County, which rendered adequate visitation and integrated services difficult.
Following the contested dispositional hearing on July 2, 1999, the juvenile court found that there would be a substantial risk of detriment to the Minors if they were to remain in the custody of their parents. On this basis, the juvenile court continued the Minors as dependent children and continued reunification services for Mother, including individual counseling, rehabilitative treatment, family therapy, parenting training and other services. The court advised Mother that reunification services would not be extended beyond 18 months from the date of detention, i.e., beyond August 22, 2000. The juvenile court did not place the Minors with Grandmother, and she did not seek review or otherwise challenge the dispositional orders.(FN4)
The six-month review report, dated November 10, 1999, noted that contrary to the terms of her reunification service plan, Mother had refused to accept the Departments referral for a psychiatric medication evaluation, because of her stated belief that her brain injury was not having a major impact on her current behavior. The six-month review hearing was held on December 14, 1999. Grandmother attended and testified. The juvenile court found that despite being provided with reasonable reunification services, Mother had failed to ameliorate the conditions which had given rise to the dependency petitions, and it was therefore necessary to continue the Minors as dependent children out of her custody. The court ordered continued provision of reunification services and supervised visitation, and again advised Mother that such services would not extend beyond August 23, 2000.
On February 18, 2000, Mother filed a section 388 petition alleging that the Minors had suffered a number of moves to different foster homes, and would enjoy "greater stability" if placed with Grandmother. After mediation and a court-supervised settlement conference in which Grandmother participated, Mother withdrew the section 388 petition. In the resulting order issued by the juvenile court on April 25, 2000, Grandmother was ordered to refrain from all types of physical discipline during visits with the Minors, cooperate in reunification and permanent planning, and refrain from making negative comments about other parties. The Department was ordered to reassess Grandmother for possible foster placement, guardianship or kinship adoption.
The Departments twelve-month report dated April 27, 2000,(FN5) stated that although Mother had "deferred" to Grandmother and arranged for a psychotropic medication evaluation, she had not gone to her second appointment because, as she said: "Im not about to take any drugs, they make people crazy." The report went on to state that although Mother had made some progress in changing her destructive patterns of behavior, there was no substantial probability of reunification succeeding given her minimal progress, the statutory time limits, her lack of viable support, and her need for continued monitoring. The Department therefore recommended that reunification services be terminated.
The report also detailed continued problems related to Grandmothers involvement in the case. Among other things, the court-ordered evaluation of Grandmothers home in Davis had not been completed due to Grandmothers unavailability; the Minors exhibited behavior problems and increased stress after their visits with Grandmother; the foster parents reported that the Minors would "fight over who is going to have to talk to grandma first during her weekly phone calls[,] neither wanting to be first"; the Minors "do not request nor appear to look forward to the phone calls" with Grandmother "and often show distress around these conversations"; Grandmother "has repeatedly spoken negatively in the hearing of the [Minors] with regards to the foster parents and the [Minors] situation, despite the requests and admonishments of the Court, foster parents and the social workers"; "Brittanys behavior has gotten progressively worse at home and at school with increased visits" with Grandmother; the Minors remained "very guarded and avoid" describing their activities during visits with either Mother or Grandmother; Grandmother had "badgered" Amanda into tears on a visit to a restaurant; the Minors reported Grandmother continued to administer corporal punishment; and Grandmother also "continued to harass and badger the foster parents until they have refused to have any contact with her." Indeed, Grandmothers involvement in the case had negatively affected planning for the Minors in a material fashion, as seen by the fact the Minors three maternal aunts had been unwilling to provide long-term homes for them because of "the involvement they would have to maintain with [Grandmother]."
On June 7, 2000, the juvenile court granted Grandmothers request for de facto parent status, permitting her to participate as a party at any hearings on the status of the Minors. The 12-month review hearing was originally scheduled for May 17, 2000. However, due to delays occasioned by Mothers requests for continuances and Grandmothers motion for de facto parent status, the contested hearing did not begin for another two months, until July 11, 2000-nearly 17 months into the reunification period. The contested 12-month hearing took place over five days, and included the testimony of 11 witnesses. Although Grandmother was represented by counsel throughout the hearing, she did not raise the issue of relative placement. By order dated July 27, 2000, the juvenile court found by a preponderance of the evidence that return of the Minors to Mother would create a substantial risk of detriment to their safety, protection or physical or emotional well being; found by clear and convincing evidence that reasonable reunification services had been provided; terminated such services to the Mother; and scheduled a section 366.26 hearing for November 15, 2000. On November 9, 2000, we denied Mothers petition for writ review of the juvenile courts orders on the merits.
B. Proceedings Since the Contested 12-Month Hearing(FN6)
In a section 388 petition dated June 27, 2000, the Department described numerous incidents of the Grandmothers continuing interference with the Minors foster placement and inappropriate comments and behavior toward the Minors during visitation; reported that it had moved the Minors to a confidential new foster placement in part because of the emotional and psychological damage caused by the Grandmothers contact with the former foster family and her negative influence on the Minors; and requested that all future visitation with Grandmother be supervised.(FN7) The Departments request for supervised visitation was supported by a memorandum from the Minors court-appointed special advocates (CASA).
At the conclusion of the 12-month hearing, the Department asked the juvenile court to conduct a judicial settlement conference in the hopes of resolving "the serious problems revolving around visitation between" the Minors and Grandmother as raised in the Departments section 388 petition. The Department reported that although the address of the Minors new foster placement with the D. family had been kept confidential to prevent Grandmother from harassing the foster parents, she had nevertheless attempted to obtain that information from the Minors. Despite repeated warnings and requests, she had also continued to flout the Departments rules and the courts orders by telling the Minors they would be coming to live with her, discussing the case with them, and failing to observe scheduled times for beginning and ending unsupervised visitations, all of which had resulted in considerable emotional stress to the Minors and consequent deterioration in their behavior.
The judicial settlement conference was conducted on July 28, 2000. As a result of the conference, the Minors therapists were to meet with Grandmother to discuss the Minors emotional health and needs. Despite reservations about meeting with Grandmother due to their concerns for the confidentiality and trust of the Minors, the therapists agreed to do so. When they did contact Grandmother to arrange an appointment for August 30, 2000, the earliest date available for both of them, Grandmother stated it was " unacceptable " and threatened to take the therapists to court "for contempt proceedings" for not meeting with her earlier. After their meeting with Grandmother on August 30, the therapists concluded that Grandmother exhibited "a consistent pattern of minimization" of and inability to acknowledge the duration, severity and impact of the physical abuse and neglect suffered by the Minors, and "a clear lack of understanding regarding appropriate developmental expectations" and "discipline strategies" with respect to "the unique needs of traumatized children" such as the Minors. Thereafter, Grandmother refused to schedule another appointment with the therapists. She also proceeded to demand unsupervised overnight visitation.
On September 1, 2000, Grandmother filed a substitution of attorney form relieving her counsel and asking to represent herself in propria persona. On November 15, 2000, just prior to the scheduled section 366.26 contested hearing, the juvenile court reappointed Grandmothers attorney to represent her. Meanwhile, on September 21, 2000, at the specific request of Mothers attorney, the juvenile court appointed Mary Lou Carson to prepare a bonding and attachment study of the relationship between Mother and the Minors.
The Departments 366.26 hearing report, prepared by permanency planning supervisor Nicholas Honey, permanency planning worker Carol Robinett, adoptions supervisor Alane McCrea and adoptions specialist Denise Wagner and dated October 31, 2000, reviewed the history of Mothers contacts with the Minors since the beginning of their dependency placement. The report noted that when the frequency of Mothers visitation was increased from twice weekly to six times per week during the second six months of reunification services and included some unsupervised visitation, the Minors behavioral problems greatly increased both at home and at school. When visitation was then decreased to once a week with only supervised visitation and two telephone calls per week, the Minors behavior "markedly improved." The Department concluded that the Minors "would not benefit from continuation of their relationship with" Mother.
With regard to Grandmother, the Department reported that since being permitted to have unsupervised weekly day-long Sunday visits with the Minors, Grandmother had continued to speak negatively about, "harass and badger" the foster parents, carry on "inappropriate" conversations with the Minors about their situation, and jeopardize the improvements made by the Minors since being placed in their current foster home with the D.s. For these reasons, and out of concern for the Minors physical safety, the Department asked that future visitation with Grandmother be supervised, and that it be decreased to once a month.
The Departments report assessed Grandmother at some length as a prospective adoptive parent for the Minors. Because of the Minors "special needs" arising from "residual emotional problems [incurred] as a result of the abuse they experienced at the hands of their [Mother]," it was important that any prospective adoptive parents provide not only "a stable, loving home, that presents a minimal risk of retraumatization to the children in question," but have "insight and understanding of the specific psychological and emotional problems these children face." The Department concluded that Grandmother failed to meet these criteria, and thus did not present an acceptable option for adoptive placement. The Department based its conclusion on Grandmothers failure to recognize Mothers past physical abuse of the Minors; her minimization of the psychological and emotional trauma caused by Mothers inadequate parenting; her own volatility and tendency to impose harsh corporal punishment and physical discipline; the reports by her other children of the serious physical abuse suffered by them at her hands; her refusal to acknowledge the causes of and damage caused by her strained and broken relationships with her other children; her refusal to take responsibility for her past actions; and her apparent disinterest in reconciling with her children.(FN8)
Court-appointed family bonding expert Mary Lou Carson met separately with the Minors and Mother, and observed the Minors with Mother on two occasions and with the D.s on a single occasion in October 2000 for a total of over six hours. In her written report, dated October 30, 2000, Carson recommended that Mothers parental rights not be terminated, because it "would be psychologically detrimental to Brittany and Amanda"; that the Minors continue their placement with the current foster family; and that Mother and Grandmother "be included as appropriate, in the therapeutic process as a way of facilitating the attachment of [the Minors] to [their foster] family." On the other hand, Carson also opined that "[i]t is unfortunate that these children were not removed [from their Mothers care] earlier in their lives, before the abuse became so serious and the damage so profound." In attempting to resolve the contradiction between the Minors overwhelming need for a stable, loving home and their "incredibly powerful" bond with their Mother, Carson posited a "best case scenario" in which they would remain under the custody of the D.s, receiving "permission from their [Mother] to love and be loved by the [foster] family," while at the same time the D.s would allow Mother "still [to] be involved with the life of her girls, even as a visiting parent." Carson noted that she had not included Grandmother in her assessment process.
The CASA report of January 9, 2001, stated that the Minors "have flourished in their current foster home (their seventh), where they have lived since June 19, 2000," and that both foster parents "appear genuinely loving and involved with the girls and their welfare," and set proper standards for behavior. As a result of their placement with the D.s, the Minors had made emotional, psychological, and educational progress. CASA reported that "[t]he most salient fact in this case . . . is that [Grandmother] wishes to adopt both Brittany and Amanda because [Mother] is at risk of losing parental rights." In view of the continuing pattern of friction between Grandmother, the Department and the D.s, the CASA opined that Grandmother was intentionally seeking to sabotage the current foster placement as she had done with previous such placements, thinking that if she were sufficiently disruptive "the girls will eventually be given into her care." The CASA recommended that Brittany and Amanda remain together in one home.(FN9)
The contested section 366.26 hearing took place on January 25, 2001. All parties stipulated that the Minors were adoptable. Denise Wagner, senior adoption specialist for the State of California, testified that even if the proposed adoption by the current foster family (the D.s) were not to take place, the Minors would still be adoptable. Wagner also testified that the prospective adoptive parents were willing to allow Mother to have some continued visitation with the Minors after adoption, "as long as it is in the childrens best interests." In addition, on their own initiative the D.s had voluntarily made contact with two of the Minors aunts. Wagner testified that in view of the Minors experience of physical abuse and post-traumatic stress disorder, their psychological and emotional issues, and the negative impact of their multiple foster placements, it was imperative that they obtain the "firm foundation" of a stable, "predictable" family with the "assurance that theyre not going to have to move again so that their focus emotionally and psychologically can go on their own development." Wagners opinion that the Minors were adoptable was not predicated or dependent upon the willingness of the potential adoptive parents to permit the Minors to maintain continued contact with Mother.
When Wagner discussed the concept of adoption with the Minors, explaining that it would be a new "family that they would have forever," both girls had positive reactions, and expressed a desire not to move again. With regard to the Minors relationship with the D.s, Wagner testified that she had observed the Minors "becoming more integrated in their foster family both with the foster parents and with extended family"; "more spontaneous in their expression of affection to the foster parents"; "more relaxed in their interactions with them"; and more responsive to discipline and direction from the D.s. In sum, they had begun to look at the D.s "as parental figures in terms of relying upon them for daily needs." Under cross-examination by Grandmothers attorney, Wagner testified that when she specifically asked the Minors by whom they would wish to be adopted, Brittany said her "first choice would be to be with her [G]randmother." Amanda did not respond.
The only other witness at the section 366.26 hearing was Mary Lou Carson, the family bonding expert appointed by the court at Mothers request. Mother introduced Carsons written report as evidence in support of the contention that the Minors needed an ongoing relationship with their Mother, and that termination of her parental rights would be detrimental to the children. Under cross-examination by the Departments attorney, however, Carson confirmed Wagners assessment of the Minors relationship with the D.s, testifying that their interaction was "warm," "reciprocal," "pleasurable," and "relaxed." Based on reports that the Minors were "flourish[ing] in their current foster home," Carson expressed the opinion that the Minors had begun to experience the D.s "as filling parental roles in their lives," and that they now looked to them "for nurturance."
With regard to Mother and the Minors relationship with her, Carson confirmed that Mothers injury-related disability-which manifested as "impulsiveness," "very severe short-term memory loss" and incapacity to sustain appropriate parental interventions for more than 30 seconds or a minute-"prevents her from being an appropriate parent." Moreover, Carson testified that it was "very clear" that on some "deep level," the Minors understood they could not rely on their Mother to meet their everyday needs, "and it is quite disturbing to them." Although the Minors love their Mother very much and "feel somewhat responsible" for her, "at the same time they are literally desperate to form some sort of an attachment relationship with people who can manage them, control their behavior, teach them how to behave and provide them with a nurturing, loving home life." Carson opined that it would be most beneficial for the Minors if they could grow to accept the D.s as "parental figures," while looking upon their Mother "as a beloved aunt figure." Indeed, Carson testified that it was "crucial" for the Minors future well-being, growth and development that they "not be moved again, ever. They should grow up in the [D.] family." For all these reasons, Carson testified she "would hope" that long-term foster care "will not be considered to be an option," and "at a minimum" the juvenile court would order guardianship, although even that option "is terribly imperfect." In sum, said Carson, it would "definitely" be preferable that the Minors be given "the legal permanence of adoption."
On the other hand, Carson also opined that the Minors needed to maintain some form of contact with their Mother. For this reason termination of Mothers parental rights "would only be detrimental [to the Minors] if they were not allowed contact with their [Mother]"; and "[i]f contact were allowed and/or guaranteed, then I dont think it would be detrimental." In this regard, Carson reported that Mrs. D., the foster mother, had "spontaneously" told her "she felt very strongly that no matter what happened in court that [Mother] should always be allowed to see the girls and should always be a significant part of their life if she couldnt raise them." Under cross-examination, Carson acknowledged that in the "[f]ifteen to twenty" dependency cases for which she had prepared bonding and attachment studies and testified in section 366.26 hearings, only once had she ever concluded that there was not a significant or substantial bond between a parent and a child, which she conceded was "a very small percentage" of such cases. Finally, Carson testified that if the Minors were forced to testify in these proceedings, "it would be profoundly damaging" and "psychologically very devastating," amounting to "institutional abuse."
Grandmother did not raise the issue of the Minors placement with her, nor did she offer any independent testimony on this issue. Indeed, through her counsel Grandmother strenuously and repeatedly sought to strike portions of the record and the Departments reports discussing potential relative placement of the Minors with Grandmother. When the attorneys for the Department and the Minors argued that the evidence regarding Grandmother should not be stricken because it was relevant to her own request for relative placement and had for that reason been ordered included by the juvenile court, Grandmothers attorney insisted that the question of relative placement was irrelevant to the section 366.26 hearing issues of whether the Minors were adoptable, and whether there was substantial evidence of such a strong and beneficial parent-child relationship that termination of parental rights would be detrimental to the Minors. In addition, despite the stipulation of all other counsel and parties that the Minors would testify they preferred to return to their Mothers care and wanted at least to maintain some visitation contact with her, and the undisputed expert testimony that they would suffer profound emotional and psychological damage if forced to take the stand, Grandmother refused to stipulate to the Minors testimony, insisted that they be called as witnesses, and subpoenaed their presence in court.
On February 15, 2001, the juvenile court found that Mother had failed to demonstrate the existence of any exceptional circumstances and ordered parental rights terminated. In its written statement of decision, the juvenile court found that "termination of parental rights would not be detrimental to the children in that the benefits of their receiving the stability of a permanent home outweighs the benefit of continuing their relationship with their [M]other."
The juvenile court based its conclusion on evidence that Mothers visitation had remained supervised and limited to once per week; Mother would likely never be able to parent the Minors due to her psychological and emotional limitations; given the abuse they had already suffered, the Minors required the security of a stable, legally permanent placement in order to heal and develop in a healthy manner; the Minors had now turned to their foster parents for their daily emotional nurturance and physical support; and "[d]espite the significant ties between the [M]other and [the Minors], the attachments are not necessarily positive bonds and the benefit of maintaining that relationship does not benefit the [Minors] significantly enough to outweigh the statutory adoption preference." Although the juvenile court noted "that any detriment of severing parental rights may be mitigated by the fost-adopt parents apparent willingness (and Departments support) to maintain contact between the [Minors] and the [M]other," the juvenile court expressly and specifically stated that it "independently finds that the benefit of an adoptive permanent plan outweighs the benefit of continuing the childrens relationship to their [M]other, given the nature of the attachment and [M]others inability to play a parental role in their lives, regardless of the level of future contact between the [M]other and the [Minors]."(FN10) (Italics added.) The juvenile court did not address the issue of relative placement of the Minors with Grandmother. These appeals by Mother and Grandmother timely followed.
II. NO ABUSE OF DISCRETION IN TERMINATING PARENTAL RIGHTS(FN11)
A. STANDARD OF REVIEW
The principal issue on this appeal, joined in by both appellants, is whether the juvenile court properly terminated Mothers parental rights. As Mother concedes, she bears the burden of proving that termination of her parental rights would be detrimental to the Minors under the cited adoption exception set out in section 366.26, subdivision (c)(1)(A). (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) On the basis of the record before us, we conclude neither appellant has demonstrated that the juvenile court abused its discretion in ordering the termination of Mothers parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
The goal of the dependency law is to protect children who are physically, sexually or emotionally abused, neglected or exploited; and to provide permanent, stable homes if those children cannot be returned to their parents within a prescribed period of time. ( 300; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) Reunification services are time-limited; permanent planning must ordinarily occur if a minor cannot be returned home safely within 12, or at most 18, months after removal. ( 366.21, 366.22; In re Matthew C. (1993) 6 Cal.4th 386, 390-392; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-249.) Although preservation of the family is an important priority whenever feasible, a child who cannot be returned to his or her parent must be provided with a stable, permanent home through adoption, guardianship or long-term foster care. ( 366.26, subds. (a), (b), (c).)
Where possible, adoption is the preferred permanent plan. ( 366.26, subd. (b), (c); San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 877-888, 890; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416; In re Autumn H. (1994) 27 Cal.App.4th 567, 573; In re Heather B. (1992) 9 Cal.App.4th 535, 546.) "Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the childs best interests are other, less permanent plans, such as guardianship or long-term foster care considered." (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) While guardianship and long-term foster care leave parental rights intact, adoption necessarily requires termination of the natural parents legal rights to the child. Once a parent has failed to reunify and the juvenile court has determined that the child is likely to be adopted, the decision at a section 366.26 hearing to terminate parental rights is "relatively automatic." (Cynthia D., supra, 5 Cal.4th at p. 250.) In order to establish the existence of the exceptional circumstances which would overcome the legislative preference for adoption, it is the parents burden to demonstrate "a compelling reason for determining that termination would be detrimental to the child." ( 366.26, subd. (c)(1); In re Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1350; In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1343-1345; In re Brian R., 2 Cal.App.4th at pp. 923-924; In re Autumn H., supra, 27 Cal.App.4th at pp. 573-574.)(FN12)
Thus, section 366.26, subdivision (c) is framed so as to require that a dependent child be made available for adoption rather than a different permanent plan if there is clear and convincing evidence of likelihood of adoption, unless, due to one of several specified exceptional circumstances, the juvenile court finds "a compelling reason for determining that termination" of the natural parents rights would be detrimental to the minor. ( 366.26, subd. (c)(1).) The sole exceptional circumstance upon which Mother relied below to argue the juvenile court should forego adoption and retain her parental rights was that "[t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ( 366.26, subd. (c)(1)(A).) In the context of the dependency scheme prescribed by the Legislature, this exception requires a finding that the benefit derived from the parent/child relationship "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)(FN13)
In making this balance, a court must recognize that any interaction between natural parent and child will almost always result in some incidental benefit to the child. The amount of that benefit will depend on the degree of the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation, as well as the level of day-to-day interaction, companionship and shared experiences. This adoption exception applies only when the court finds that regular visits and contact have continued and developed a significant positive emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) At the time the juvenile court makes its section 366.26 determination, the parent and child will have been in the dependency process for at least 12 months. In almost every case, the nature and extent of the particular parent/child relationship at issue will be apparent by that time, based on the observations of and evidence provided by social workers, interim caretakers and health care professionals. In making its determination, the juvenile court must examine the parent/child relationship on a case-by-case basis, taking into account such variables affecting the parent/child bond as the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between the parent and the child, and the childs particular needs. (Id. at pp. 575-576.)
On appellate review of a juvenile courts section 366.26 determination terminating parental rights, the appropriate standard is abuse of discretion. Thus, when a juvenile court has made a custody determination in a dependency proceeding, a reviewing court will not disturb that decision unless the juvenile court exceeded the limits of its legal discretion by making an arbitrary, capricious or patently absurd determination. The appropriate test is whether the juvenile court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts presented, we have no authority to substitute our decision for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
In practice, this standard of review does not differ significantly from the well-established standard of review applicable to any claim that a judgment or finding is not supported by the evidence in the record. Evaluating the factual basis for an exercise of judicial discretion is closely comparable to analyzing the sufficiency of the evidence to support a ruling. "Broad deference must be shown to the trial judge. The reviewing court should interfere only "if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he [or she] did." . . . " (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065-1067, citations omitted; see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either standard, the trial court was trier of fact and sole judge of the credibility of witnesses; we are not.(FN14) Nevertheless, there is a reason the abuse of discretion standard is the traditional standard for custody determinations. Among other things, it better fits the statutory requirement that a juvenile court find a "compelling reason for determining that termination would be detrimental to the child" before setting aside the Legislature preference for adoption. ( 366.26, subd. (c)(1), italics added.) "That is a quintessentially discretionary determination. The juvenile courts opportunity to observe the witnesses and generally get the feel of the case warrants a high degree of appellate court deference. [Citation.]" (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
B. DISCUSSION
Upon review of the record, we conclude the juvenile court did not abuse its discretion in this case. As seen, the adoption exception relied upon by Mother applies only when the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" to such a "compelling" degree as clearly to outweigh the benefits the child would gain in a permanent home with new, adoptive parents. ( 366.26, subd. (c)(1)(A); In re Beatrice M., supra, 29 Cal.App.4th at p. 1418; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) This is precisely the test applied by the juvenile court in its thoughtful and well-reasoned statement of decision. The evidence in the record clearly shows the juvenile courts exercise of its discretion had a reasonable factual basis.
Addressing first the "regular visitation" element of the exception, the fact Mother maintained a degree of regularly scheduled contact with the Minors is by itself insufficient to establish the exceptional circumstances necessary to a determination that termination of parental rights would be detrimental to the children. As a general principle, the fact there has been "frequent and loving contact" between birth parent and dependent children is not enough to establish the adoption exception under section 366.26, subdivision (c)(1)(A). " The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. " (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.)(FN15) It was Mothers burden to demonstrate both that the nature of her contact with the Minors was such that she occupied the role of parent for her children, and that the Minors derived such benefit from their visits as to warrant sacrificing the stability and permanence which would be provided by adoption. (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350; In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) This Mother failed to do.
Due to Mothers ongoing anger control issues, caused by her tragic brain injury, she was never able to progress beyond supervised visitation with the Minors, usually in the highly structured setting of a therapists or parenting instructors office, or a church. Even then, these visitations caused the Minors great stress and anxiety due to Mothers inability to refrain from lashing out verbally or otherwise abusing the Minors emotionally. When the Minors contact with Mother was decreased, their behavior and emotional aspect markedly improved. Even Mothers own expert, Carson, noted that the Minors behavior and emotional aspect deteriorated during and after visitations with Mother. Although Carson stated that Mothers love for her children "was obvious" and the Minors own "love for her literally filled the room" during their visits, Carson also reported that Mothers ability to control the Minors behavior during visitation was "very limited." Among other things noted by Carson, Mother "was not focused on redirecting the girls into more appropriate behaviors"; she "yelled at the girls several times" during the visits she observed; the younger (nearly 8-year-old) child "gave up trying to get her [M]others attention" and began reverting to "baby talk" and infantile sucking on a baby bottle; and the older (10-year-old) child started manifesting "physical aggression" toward Mother and the other Minor. This contrasted sharply with Carsons observation of the foster parents relationship with the Minors, during which the D.s "did a good job of keeping them in reasonable control while obviously enjoying the process of playing" with them; both Minors responded well to the D.s "non-judgmental," "gentle" support and discipline; and all "four people seemed happy and content together, in spite of the high maintenance needs of both girls." Thus, Mother has failed to demonstrate that her supervised visitation was either sufficient or of such quality to satisfy the adoption exception under section 366.26, subdivision (c)(1)(A). (In re Casey D. (1999) 70 Cal.App.4th 38, 51-52 [showing of benefit from visitation sufficient to establish adoption exception difficult where parent never advanced beyond supervised visitation].)
Turning to the element of whether there was compelling evidence the dependent child "would benefit from continuing the relationship" with the parent so as clearly to outweigh the benefits to be gained from the permanence and stability of adoption, Mother emphasizes the recommendation of her bonding expert Carson against termination of parental rights, and Carsons observations at trial to the effect that the Minors "may suffer permanent, irreparable psychological harm" if they did not have "continued contact with their [M]other in the future." Once again, however, the fact a dependent child has a strong and positive emotional attachment with the parent is, by itself, insufficient to overcome the presumption in favor of adoption that arises after reunification services have been terminated. Only if the child actually looks to the birth parent to fill his or her basic needs for attention, affection, nurturance and protection will the natural parent be viewed as fulfilling the parental role to the extent necessary to bar termination of parental rights. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773-774 [relationship not positive when child wants to be with parent out of concern for the parents needs]; In re Derek W., supra, 73 Cal.App.4th at p. 827; [the fact there is a strong emotional bond between parent and child "bears no resemblance to the sort of consistent daily nurturing that marks a parental relationship"] In re Zachary G., supra, 77 Cal.App.4th at pp. 811-812 [although mothers bonding expert testified there was a strong parent-child bond and the minor would suffer psychological distress if he were adopted, mother failed to meet her burden to establish the adoption exception because there was other testimony the child looked to his foster caretakers to fulfill his needs for attention, affection and care]; In re Casey D., supra, 70 Cal.App.4th at pp. 51-53 [although mother was loving and appropriate toward child during visits and her experts testified the parental relationship should be maintained, other evidence showed the child viewed the foster mother as his mother; held, termination of parental rights was in the childs best interests].)
The record before us demonstrates that Mother did not-indeed, could not-fulfill the parental role for the Minors in this case. In citing selectively to Carsons recommendations and testimony at the contested hearing, Mother has actually misstated the record. Thus, Carson specifically stated in her written report and testified again at the hearing that Mother was incapable of sustaining "appropriate parental interventions for more than 30 seconds or a minute," and that her disability would prevent her from being an "appropriate parent." Carson concluded that the Minors had come to realize they could not count on their Mother to be a parent and meet their needs, and instead had grown to perceive the D.s as their parental figures upon whom they could rely for nurturance and to meet their daily needs. In addition, Carson reported that despite the strong emotional bond between Mother and the Minors, the latter suffered significant emotional and psychological attachment disorders "marked by incredible anger and anxiety" due to their long history of neglect, physical, emotional and psychological abuse at the hands of their Mother. Carson even opined that it was "unfortunate" the Minors had not been removed from Mothers care "earlier in their lives, before the abuse became so serious and the damage so profound." Most important, Carson apparently changed her recommendation during the months between submission of her written bonding study and her testimony at trial. Whereas in the bonding study she recommended against termination of parental rights, by the time of the contested section 366.26 hearing Carson had concluded that adoption was "definitely" the preferred permanent plan for the Minors.
Moreover, Carsons observations, recommendations and testimony in opposition to the termination of Mothers parental rights must be adjudged and weighed against the rest of the evidence of Mothers inability to function as a parent for the Minors.(FN16) This evidence showed not only that neither Mother nor Grandmother could provide the kind of parenting desperately needed by the Minors, but that Mother and, more particularly, Grandmother had actively sabotaged the Minors previous foster placements and thereby caused serious stress to the Minors, endangered their psychological and emotional recovery. In so doing, Mother and Grandmother themselves undermined whatever chances either one had of recovering custody of the Minors. In contrast, the evidence showed the Minors consistently demonstrated a conscious desire and an objective need for the stability they were obtaining in their latest foster home, that of the D.s. Significantly, Carson herself testified that it was critically imperative for the Minors future mental and physical health that they "not be moved again, ever. They should grow up in the [D.] family."
It is clear from its decision that the juvenile court carefully considered all the evidence before it in balancing the strength and quality of the natural parent/child relationship of Mother and the Minors under the tenuous conditions of a continuing dependency placement after reunification services had been terminated, against the security, sense of belonging and permanence which a new adoptive family would confer. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Even Mothers own bonding expert was forced to conclude that adoption was in the best interests of the Minors. On the record of this admittedly difficult and painful case, we conclude the juvenile court correctly balanced the benefits of continuing the parental relationship against the Minors need for permanence and stability. There was no abuse of discretion in terminating Mothers parental rights.(FN17)
III. MINORS MOTION TO TAKE ADDITIONAL EVIDENCE(FN18)
Through their appellate counsel, the Minors have moved this Court pursuant to Code of Civil Procedure section 909(FN19) and rules 23 and 41 of the California Rules of Court(FN20) to take additional evidence regarding the Minors current circumstances. The "evidence" consists of counsels own declaration under penalty of perjury alleging changed circumstances with respect to the desire of the D.s, the Minors foster parents, to proceed with adopting the Minors. Simultaneously with the motion, and without waiting for our ruling thereon, Minors counsel has submitted a letter brief arguing on the basis of the "new evidence" that the juvenile courts section 366.26 orders and decision terminating Mothers parental rights be reversed and remanded for further proceedings to determine whether guardianship or long-term foster care would be a better alternative for the Minors.
In its response, the Department does not oppose the request to consider the new evidence offered in the declaration of Minors appellate counsel. Citing a number of recent cases, the Department concurs with Minors counsel that this court should not "mechanistically make determinations without regard to the passage of time and intervening events" in the Minors lives, and should therefore consider the information contained in counsels declaration under penalty of perjury. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1259; see also In re Arturo A. (1992) 8 Cal.App.4th 229, 243-245; [because the very nature of juvenile dependency law does not give an appellate court the luxury of "static conditions," an appellate court "must have evidence of the childs current status"].) Nevertheless, as the Department points out, the information in counsels declaration should simply be viewed as an offer of proof and considered as such. Under this approach, this Court should only order remand if, assuming the information in that offer of proof is accurate, it would warrant reversal of the juvenile court order terminating Mothers parental rights.
In view of the relevant case authority and respondents non-opposition to the motion of Minors counsel to take additional evidence, we grant counsels motion under Code of Civil Procedure section 909 and admit counsels declaration as part of the record on this appeal.(FN21) We turn then to a consideration of the declaration of Minors appellate counsel as an offer of proof. In her declaration, counsel alleges that the D.s "had changed their minds about adopting the girls, because the girls do not see them as parents and [the D.s] did not think [the Minors] ever would. They [the Minors] know and love their [M]other and [the D.s] felt it would be wrong to displace her." Nevertheless, because the D.s "understood that the [M]other would never be able to actively parent" the Minors, they were themselves therefore "willing to care for the children permanently as if they were their adopted children." Moreover, Mrs. D. "made it clear she was absolutely in favor of the girls maintaining regular contact with their [M]other," and with their maternal aunts. On the other hand, Mrs. D. "feared [G]randmother, but was not able to articulate why, other than to express concern that [G]randmother had probably found out where [the D.s] lived (even though it was a confidential placement) and feared that [G]randmother had followed them home."
In the Minors letter brief, their counsel argues the juvenile courts order and decision should be reversed and remanded for "further proceedings" to consider the changed circumstances cited in her declaration. At the same time, however, counsel states that the existing record supports affirmance of the juvenile courts orders.(FN22) Indeed, counsel goes even further. First, she states that the Minors should not be removed from their present placement with the D.s-even if an appropriate adoptive family could be found to replace them-because of the chaos and upheaval such a change would bring the Minors, who "have formed healthy attachments to their [present] caretakers. They have found a permanent home-regardless of the legal label attached to it."(FN23) Second, and even more significantly, counsel does not recommend guardianship or long-term foster care for the Minors, because these less permanent solutions would leave "a window of opportunity for [G]randmother and [M]other to continue to try and reclaim the children, which the childrens caretakers, their therapists and the social worker all feel will be abused to the girls detriment."(FN24)
Viewing counsels declaration as an offer of proof, we agree with the Department that the information contained in the declaration of Minors counsel does not warrant reversal of the juvenile courts decision and orders. In order to justify remanding this matter and the consequent further delay in these proceedings, there must be powerful, credible and convincing evidence that this is the "rare case" in which a dependent childs circumstances have actually changed such that there is either a renewed possibility of reunification with the parent, or the child can no longer be considered adoptable. (Cf. In re Arturo A., supra, 8 Cal.App.4th at pp. 245-246.) The offer of proof presented by Minors appellate counsel does not rise to this level.
In the first place, we note there is no declaration in the record from either of the D.s themselves. The statements in counsels declaration attributed to the D.s are, of course, merely hearsay. In contrast, the existing record contains Mrs. D.s declaration under penalty of perjury stating that she and her husband "are committed" to adopting the Minors should Mothers parental rights be terminated, and remain "willing to enter into an agreement providing for ongoing visitation between the girls and their [M]other." The record strongly suggests the D.s alleged "second thoughts" about adoption are most likely attributable to the stress of these dependency proceedings and the continuing interference of Grandmother therein. Even if we accept counsels hearsay representations of the D.s more recent comments at face value for their truth, such psychological and emotional uncertainties on the part of prospective adoptive parents are to be expected in the course of a dependency proceeding as difficult, emotional and prolonged as this one has been. Ultimately, it is only by bringing these proceedings to a final and definite conclusion that the adoption situation can be clarified. On this record, we conclude the hearsay evidence of the D.s alleged change of heart is insufficient to justify reversal.
More fundamentally, remanding this matter would set the stage for further uncertainty and the potential of future continued emotional abuse of the Minors through additional hearings and appeals. Under this scenario, the Minors would indefinitely be denied the stability and permanence which all parties agree they so desperately need. In accord with the Legislatures intent in enacting the dependency law and section 366.26 in particular, it is clear that the Minors interests would best be served by bringing this matter to the earliest possible resolution. (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1346-1347.) Momentary indecision on the part of the prospective adoptive parents cannot be grounds for bringing the entire permanency planning process to a screeching halt, reopening the door to litigation of the Minors status, and further destabilizing their placement with consequent incalculable damage to their futures.
Finally, the present existence or nonexistence of a prospective adoptive family is not determinative of the issues of adoptability or of the best interests of the children with respect to termination of parental rights. The law provides that although permanency planning must begin when adoption becomes "likely," it is not until after termination of parental rights that a final selection of an adoptive home is made. A child may be found "adoptable" whether or not a particular family has been identified or is committed to adoption at a specific point in time. It is only necessary that the child is likely to be adopted; in that case, adoption is the preferred permanent plan. (In re Casey D., supra, 70 Cal.App.4th at p. 50; In re David H. (1995) 33 Cal.App.4th 368, 379-380.) In this case, the juvenile court found by clear and convincing evidence that the Minors were adoptable based on the parties own stipulations, the Minors "general characteristics," and "the evidence there was one or more families prepared to adopt"; and expressly concluded that given Mothers inability to play a parental role in the Minors lives, the benefit of an adoptive permanent plan outweighed the benefit of continuing their relationship with Mother, "regardless of the level of future contact" between the Minors and Mother. Under all the circumstances of this case, we conclude that counsels hearsay report of the D.s change of heart is insufficient evidence upon which to overturn the juvenile courts decision that the Minors are in fact adoptable, regardless of whether the D.s ultimately adopt the Minors.
In sum, nothing in the proffered "new evidence" persuades us that remand would likely lead to a different outcome. On the other hand, we can state with certainty that remand will necessarily put the Minors through additional trials, instability and uncertainty with incalculable ultimate harm to their true best interests. On this basis, we conclude that the new information proffered by Minors counsel is insufficient to justify reversing the juvenile courts decision and remanding this matter for further proceedings.
IV. FAILURE TO STIPULATE TO COMMISSIONER PRESIDING AT HEARING
In her lead argument on appeal, Grandmother argues that the juvenile courts decision and orders were "void and ineffective" because the section 366.26 hearing was heard by a court commissioner sitting as "a referee" without the stipulation of appellants and without subsequent approval by a judge. The contention is meritless.
At the outset of the contested hearing, the juvenile court commissioner stated on the record that because she had already made prior orders setting the contested hearing before her without any objection by the parties, they had waived any contention that she should not preside at the hearing. Counsel for Mother thereupon stated his willingness to stipulate to the matter being heard by the commissioner and noted that he had advised his client so to stipulate as well, although he was not sure she was willing to do so because she was not present. Counsel for Grandmother, on the other hand, stated his clients refusal to stipulate to the commissioner. At that point, the commissioner ordered a recess to ascertain whether Mother would be attending the hearing. After the recess, Mothers counsel indicated his client was too "scared to come." Nothing more was said regarding Mothers consent to the hearing being held before a commissioner. Thereafter, the contested section 366.26 hearing proceeded with Grandmother and all the other parties participating, and with no further reference to the issue of whether the parties agreed to it being held before the commissioner.
Under the California Constitution, court commissioners may perform "subordinate judicial duties" including the trying of cases, subject to the stipulation of the parties. (Cal. Const., art. VI, 21, 22; In re Horton (1991) 54 Cal.3d 82, 90.)(FN25) Code of Civil Procedure section 259 provides that "every court commissioner shall have the power" to "[a]ct as temporary judge when otherwise qualified so to act and when appointed for that purpose, or by written consent of an appearing party." (Code Civ. Proc., 259, subd. (e), italics added.) Rule 880(1) defines a " [t]emporary judge " as "a member of the State Bar appointed pursuant to article VI, section 21 of the California Constitution and rule 244." Rule 244 in turn sets out the general requirement that trial of a matter by a temporary judge be subject to written stipulation of the parties, but also states that this requirement "does not apply to the selection of a court commissioner to act as a temporary judge." (Rule 244(a).)(FN26) A referee, on the other hand, is defined as "a person appointed under section 638 or 639 of the Code of Civil Procedure."(FN27) (Rule 880(2).) Under sections 247 through 254 of the Welfare and Institutions Code, referees may also be appointed to preside in juvenile court matters.(FN28) These provisions make it clear that by their nature, the functions and powers of a referee are more limited than those of a temporary judge, and more subject to the agreement and consent of the parties. Thus, the subordinate judicial classifications of referee and temporary judge are distinct, vested with different powers, and subject to differing procedural constraints. ( 247-253; Code Civ. Proc., 259, 638-645; rules 1415-1418; see Badgley v. Van Upp (1993) 20 Cal.App.4th 218, 222-225; In re Carina C. (1990) 218 Cal.App.3d 617, 622-625.)
Court commissioners may serve as referees or as temporary judges, depending on the circumstances. Under the Sonoma County Superior Court Rules of Court, a superior court commissioner appointed by a majority of the judges of the superior court may be appointed by the presiding supervising judge to sit "either as a commissioner or as a referee or as a judge pro tempore or as a juvenile court referee" on "such matters as the needs of the court may require." (Superior Court of California, County of Sonoma, local rules of court [Local Rules] 12.2.)(FN29) Under Local Rule 12.3, "[u]nless otherwise expressly specified," a commissioner "shall act as a temporary judge with respect to any and all actions, causes or proceedings" in any court department to which the commissioner is assigned, "without further order of the court." (Local Rule 12.3, italics added.)(FN30) The Local Rules go on to enumerate the "duties and powers" that may be exercised by a commissioner so acting as a "temporary judge." These "include but are not limited" to "[c]onduct[ing] the trial or hearing of assigned actions, causes and proceedings, whether or not contested," and "[o]therwise exercis[ing] the powers, duties and functions of a Superior Court judge." (Local Rule 12.3 (A), (K).) The Local Rules clearly distinguish between the powers and duties of a commissioner serving as a temporary judge and the more limited ones of a commissioner serving as a referee. Thus, "without further order or assignment," a commissioner is authorized to "[s]erve as a juvenile court referee" even if he or she is "unable to act as a temporary judge in any matter." (Local Rule 12.4 (A).)
These provisions of the Local Rules are in full compliance with California statutory and decisional authority, pursuant to which "[a] temporary judge has full judicial powers, and his [or her] orders are as final and nonreviewable as those of a permanent judge." (In re Mark L. (1983) 34 Cal.3d 171, 178; 250 ["Where a referee sits as a temporary judge, his or her orders become final in the same manner as orders made by a judge"].) Because it was not "otherwise expressly specified" that the commissioner in this case was acting as anything other than a temporary judge (Local Rule 12.3), the applicable law requires us to conclude that she was acting as such, and thereby exercising all the powers of a superior court judge. Thus, Grandmothers assertion that the commissioner in this case was sitting as a referee rather than a temporary judge is simply incorrect.
Grandmother insists that to the extent they permit a commissioner to try the contested hearing as a temporary judge without stipulation of the parties, the Sonoma County Local Rules are in violation of Article VI, section 21 of the California Constitution. In the first place, clearly the Local Rules must be interpreted and applied in compliance with the constitutional principle that "[t]he jurisdiction of a court commissioner, or any other temporary judge, to try a cause derives from the parties stipulation." (In re Horton, supra, 54 Cal.3d at p. 90.) Regardless of whether the parties required stipulation is explicitly mentioned by the Local Rules, that jurisdictional requirement cannot simply be omitted or disregarded.
It is under the facts of this case that Grandmothers challenge fails. Although the jurisdiction of a temporary judge to try a cause derives from and depends upon the parties stipulation thereto, this constitutional requirement is nevertheless subject to implied waiver. Thus, for constitutional purposes a valid stipulation may be implied by the conduct of the parties, including their participation in a proceeding tried by a temporary judge. (In re Horton, supra, 54 Cal.3d at pp. 86, 90-100; In re Mark L., supra, 34 Cal.3d at pp. 178-179; Estate of Soforenko (1968) 260 Cal.App.2d 765, 766-767.) The record reflects that although Grandmother purportedly refused to stipulate to the commissioner sitting as judge at the outset of the contested hearing, she had earlier failed to object at the time trial was originally set before the commissioner. This failure to make a timely objection was tantamount to an implied waiver of the required stipulation that the matter be heard by the commissioner sitting as a temporary judge. (In re Horton, supra, 54 Cal.3d at pp. 90-94, 97-98; In re Mark L., supra, 34 Cal.3d at pp. 178-179; Estate of Soforenko, supra, 260 Cal.App.2d at pp. 766-767.)(FN31)
Moreover, even were we to accept the validity of Grandmothers belated attempt on the day of the scheduled hearing to withdraw her earlier implied stipulation, she effectively waived her present procedural claim by subsequently failing to seek any rehearing of the commissioners decision before a juvenile court judge. Absent timely challenge, the orders of a subordinate judicial officer sitting as a temporary judge, even without proper stipulation, become final upon expiration of the time for rehearing. (Cf. In re Carina C., supra, 218 Cal.App.3d at pp. 622-625; 250, 252.) It is undisputed that Grandmother did not seek such a rehearing. To the extent the decision of the commissioner in this case was subject to rehearing by a juvenile court judge at all, Grandmothers failure to seek such a rehearing rendered the orders and decision of the commissioner final.
Citing several rules and statutory provisions requiring referees to give litigants express written notice of their right to a rehearing by a juvenile court judge, Grandmother nevertheless insists her failure to seek a rehearing is excused by the fact the commissioner failed to give her such notice of the right to a rehearing in this case. ( 248; rules 1416(a)(2), 1417(b)(1).) The principal difficulty with this contention is that, as discussed, in this instance the commissioner was acting not as a referee, but as a temporary judge. As such, the commissioner was clothed with "full judicial powers," and her orders were "as final and nonreviewable as those of a permanent judge." (In re Mark L., supra, 34 Cal.3d at p. 178, italics added; see also 250.) Indeed, just as California law makes a clear distinction between referees and temporary judges, it differentiates between the powers of a superior court commissioner sitting as a temporary judge and those of an ordinary member of the bar sitting as such. As seen, the California Rules of Court specifically provide that the requirement of a written stipulation for a matter to be tried by a temporary judge "does not apply to the selection of a court commissioner to act as a temporary judge" (rule 244(a), (b), italics added.) Although section 248 requires that a "referee" provide the minors "parent or guardian or adult relative" with "a written explanation of the right of such persons to seek review of the order by the juvenile court," that provision on its face refers to the duties of a juvenile court referee, not those of a commissioner sitting as a temporary judge in a juvenile court matter. There is no corresponding provision in the applicable statutes and rules requiring that a court commissioner sitting as a temporary judge give express written notification of a right of review by a juvenile court judge. In short, a commissioner sitting as a temporary judge exercises all the power, duties and functions of a superior court judge, and his or her decisions are "as final and nonreviewable" as those of such a judge. (In re Mark L., supra, 34 Cal.3d at p. 178.)(FN32)
Neither rule 1416(a)(2) nor rule 1417(b)(1) supports Grandmothers assertion that her failure to seek a rehearing before the juvenile court was excused or indeed was at all relevant to the finality of the commissioners decision. Rule 1416(a)(2)-which provides that "[t]he referee shall inform the child and parent or guardian of the right to seek review by a juvenile court judge"-is expressly limited to proceedings in a which a "referee" was "not acting as a temporary judge," a situation that did not obtain in this case. (Rule 1416(a)(2), italics added; cf. In re Carina C., supra, 218 Cal.App.3d at pp. 623-624, fn. 12.) In the same way, rule 1417 also deals exclusively with orders of "referees" not acting as temporary judges.(FN33)
Finally, even if for the sake of argument we were to accept Grandmothers assumption that the commissioner in this case was sitting as a juvenile court referee and not as a temporary judge, we are nevertheless unpersuaded that the commissioners failure to give express written notice of the statutory right to a rehearing before a juvenile court voids the finality of the 366.26 decision and requires reversal. Even in a capital case, a defendant is not entitled to an express admonition of his or her right to trial before a regularly appointed superior court judge rather than a court commissioner sitting as a temporary judge; indeed, such a defendant may even be bound by his or her attorneys implied waiver of the right to stipulate to trial by a commissioner sitting as a temporary judge. (In re Horton, supra, 54 Cal.3d at pp. 90-94, 97-98; In re Mark L., supra, 34 Cal.3d at pp. 178-179; Estate of Soforenko, supra, 260 Cal.App.2d at pp. 766-767.) Given the fact sections 250 and 252 set forth the right to seek a rehearing before a juvenile court judge and the procedure for doing so, Grandmother and her attorney were clearly on statutory or constructive notice of the right of which she now complains she was uninformed. In light of the Supreme Courts analysis in Horton, we see no reason why the failure of Grandmothers attorney to seek a rehearing on her behalf within 10 days (as required by sections 250 and 252) should be excused by the lack of an additional express notification, and thereby require reversal of the commissioners decision. This is particularly true in the context of this expedited appeal from a contested section 366.26 permanency planning hearing wherein the paramount consideration before both the juvenile court and this court on appeal is to determine the best interests of the minors, and to do so as expeditiously and as finally as possible. (In re Marilyn H., supra, 5 Cal.4th at pp. 309-310; In re Jasmine D., supra, 78 Cal.App.4th at p. 1347-1350.) Bearing all this in mind, we conclude that the failure to give express written notice of the statutory right to a rehearing in a civil juvenile dependency proceeding may be waived when a party who is represented by counsel fails to request such a rehearing. (In re Horton, supra, 54 Cal.3d at pp. 90-100.)(FN34)
V. NO ABUSE OF DISCRETION IN FAILING TO PLACE MINORS WITH GRANDMOTHER(FN35)
Finally, Grandmother contends the order referring the Minors for adoption must be reversed because the Department "refused to carry out its duty to assess" her for relative placement, and the juvenile court failed either to place the Minors with the Grandmother or to explain why it was not doing so. These contentions are meritless.
Grandmother attacks the juvenile courts failure to award her custody of the Minors in a variety of ways. First, she asserts a constitutional right to live with her grandchildren, and insists that the refusals of the Department to recommend her for relative placement and of the juvenile court to give her custody of the Minors constitutes a violation of this constitutional right. Aside from its novelty, the argument has no merit. Contrary to Grandmothers contention, the creation of Grandparents Day in 1978 and the enactment of various state statutes granting grandparents the legal right to seek court-ordered visitation do not give grandparents a new constitutional right to have their grandchildren placed in their care. Indeed, recent cases have actually narrowed the rights of grandparents to assert control over minors. (See Troxel v. Granville (2000) 530 U.S. 57, 60, 64-65, 69-73 [grandparents have no constitutional right to visitation over the objections of parents]; Mullins v. State of Oregon (1995) 57 F.3d 789, 791, 797 [grandmother does not have constitutionally protected liberty interest in the adoption of her grandchildren].) Grandmother does not cite any California authority for her asserted constitutional right, which we reject.(FN36)
Next, Grandmother asserts the Department violated applicable statutory requirements and the orders of the juvenile court by allegedly refusing to give her request for relative placement of the Minors sufficient consideration. At some length, Grandmothers briefs detail the history of the Departments contacts with Grandmother during the two-year period between the initiation of dependency proceedings in February 1999 and the contested section 366.26 hearing in January 2001, with particular emphasis on the alleged failure or refusal of Department personnel to inspect Grandmothers residence or adequately investigate and assess her suitability for relative placement under section 361.3.(FN37)
The principal difficulty with this argument is that it has been waived. At no point during the more than two years between initiation of these dependency proceedings and the conclusion of the section 366.26 hearing did Grandmother seek appellate or writ review of either the orders of the juvenile court or the actions of the Department. It is by now one of the most well-established principles of juvenile dependency law that unappealed findings and orders are final and binding. For this reason, a party may not seek review in an appeal from a contested section 366.26 hearing of alleged error occurring prior to that hearing. (Rule 39.1A, subd. (e) [appeal from section 366.26 hearing shall not include a review of any prior hearings]; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250-1252 [propriety of disposition and other pre-section 366.26 hearing orders must be timely appealed, and may not be raised following 366.26 hearing]; In re Daniel K. (1998) 61 Cal.App.4th 661, 667 [following section 366.26 hearing, parent could not appeal any prior orders for which time to appeal had passed]; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-1159 [mother could not argue errors occurring during the entire dependency proceeding in an appeal taken from section 366.26 hearing, even though the errors were of constitutional dimension and concerned her right to effective assistance of counsel]; In re Edward H. (1996) 43 Cal.App.4th 584, 590-591 [partys contention that juvenile court made improper finding of adoptability at disposition proceedings waived by failure to appeal prior to section 366.26 hearing].)
Even if Grandmothers claims regarding alleged errors occurring prior to the section 366.26 hearing had not been waived by her failure to appeal or seek writ review earlier, they were most definitely waived by her complete failure to raise these issues at the contested section 366.26 hearing itself. As seen, Grandmother not only failed to raise any alleged errors by the juvenile court or the Department with regard to relative placement at the section 366.26 hearing, she actually sought to strike any portions of the record dealing with that issue, and even went so far as to argue her own request for relative placement was irrelevant to the adoption and termination questions at issue at the section 366.26 hearing. It is far too late for Grandmother to raise these issues at this late date.(FN38)
Finally, Grandmother contends that the juvenile court violated its duty either to place the Minors with her or to explain why she was not doing so. In view of Grandmothers strenuous efforts to prevent the juvenile court from addressing the issue of relative placement throughout the course of the contested 366.26 hearing, this contention is almost breathtaking in its audacity. Even if Grandmother cannot be said to have waived this issue, any conceivable error on the part of the juvenile court in failing explicitly to address the question of relative placement was clearly invited by her repeated efforts to bar the issue from being addressed at the section 366.26 hearing. Because Grandmother, for her own tactical reasons, sought to prevent the juvenile court from considering any evidence on the relative placement issue, her present claim of error is necessarily barred. (In re Jamie R., supra, 90 Cal.App.4th at p. 772 [doctrine of invited error bars claim of error when party persuaded trial court to follow the particular procedure later attacked as unlawful].)(FN39)
Even were we to overlook the fact these issues have been waived and any error was invited by Grandmothers own arguments at the section 366.26 hearing, we would have no difficulty concluding it is not reasonably probable a result more favorable to Grandmother would have obtained had the juvenile court explicitly addressed the question of relative placement in its decision at the conclusion of the hearing. Despite Grandmothers objections, the juvenile court found the relative placement information contained in the Departments reports was relevant to the issues before the court, and admitted the reports in their entirety. Thus, the court had before it the detailed reports by Department personnel, social workers, family bonding experts and psychologists, all concluding that placement of the Minors with Grandmother would not be in the Minors best interests. In addition, the court could form its own opinions based on its observation of Grandmothers insensitivity to the Minors emotional fragility, as demonstrated by her unreasonable refusal to stipulate to the Minors testimony and insistence that they testify in court even in the face of the stipulation of all other counsel and parties as to what the Minors would testify and the undisputed expert testimony that it would actually be abusive to force them to take the stand.(FN40)
In sum, the evidence in this record overwhelmingly supports the conclusion that Grandmother would not be an appropriate placement for the Minors. The record is replete with evidence of Grandmothers on-going efforts to undermine and destabilize the Minors placement in the various foster homes through which they have been shuttled; her inability and unwillingness to cooperate with the Department and its employees in the reunification process; her inability to protect the Minors from their Mothers abuse; her own long-standing pattern of abuse of her own children and the Minors themselves; and her failure to acknowledge either the reasons for the Minors removal from their Mothers care or their own psychological and emotional fragility. Based on this record, we have no difficulty concluding that Grandmother would pose a continuing risk of further emotional, psychological and possibly physical harm to the Minors. The juvenile court did not abuse its discretion in failing to place the Minors in Grandmothers care. Any error in failing to make an express finding to that effect was harmless, since it is not reasonably probable any such finding would have been in Grandmothers favor. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137.)(FN41)
VI. DISPOSITION
The decision and orders of the juvenile court appealed from are affirmed in their entirety.
We concur: Parrilli, J., Pollak, J.
Notes:
(FN*). Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, II, III, and V.
(FN1). Unless otherwise indicated, all further unspecified statutory references are to the Welfare and Institutions Code.
(FN2). See footnote, ante, page 1.
(FN3). The events of this case occurring between the time of the original dependency petitions filed on February 26, 1999, through the contested twelve-month referral hearing in July 2000, are set out in somewhat greater detail in the previous opinion in this matter filed on November 9, 2000. Because Grandmother bases some of her arguments in this appeal on proceedings occurring prior to the contested twelve-month hearing, however, we review these events again, in as succinct a manner as possible.
(FN4). In accordance with the Departments recommendations, the juvenile court concluded it would be detrimental to provide reunification services to the alleged father, Nicholas K. He is not a subject of the appeals in this matter.
(FN5). This report was mislabeled as being for "six month review."
(FN6). See footnote, ante, page 1.
(FN7). Among other incidents described in the Departments section 388 petition were the following. (1) Soon after Minors were placed with their previous foster family, Grandmother "appeared" in the foster parents backyard "without prior permission or authorization." She then resisted leaving and threatened to continue exercising her "liberty to show up at will." (2) Ignoring prior arrangements to return the Minors to the foster parents at a particular time at a church, Grandmother returned the Minors to the foster parents an hour later at their home. She then "advised" the foster parents "that her behavior would not change." (3) Grandmother tried to arrange with the Minors "to sneak to the end of the driveway" of the foster parents home "where she would be waiting to take them" on a particular date. The Minors told the foster parents, who informed the Department. A social worker then intervened when Grandmother subsequently showed up at the foster home and tried to take the Minors. (4) Grandmother did not respond to Department attempts to arrange a visit to her home in Davis preparatory to authorize unsupervised visitation. (5) Grandmother persistently failed to observe agreed pick-up and drop-off times for visitation with the Minors, thereby greatly inconveniencing the foster parents. (6) The Minors behavior deteriorated radically after visiting with Grandmother. (7) The Minors reported that Grandmother told them "to lie" to their foster parents about what they did during visitation and why they were late returning.
(FN8). "[Grandmother]s dismissal of the harm her children report suffering as a result of her physically assaulting them as children is troubling. By not taking responsibility for her own actions, she has apparently chosen to avoid the possibility of reconciliation with her children. Again, in considering the future of Brittany and Amanda this is very concerning. [Grandmother] sees it as acceptable and in fact the norm for grown children and their parent(s) to have no contact for literally decades. This does not bode well for Brittany and Amanda when considering permanence as meaning family for life. They need adoptive parent(s) who will fill that role as developmentally appropriate throughout their lives. [Grandmother] has not illustrated her capacity to do so with some of her own children.
"As is evidenced by [Grandmother]s history of physically abusing her own children and denial of importance of family, which is manifested in her lack of contact with three of four of her grown children, [Grandmother] does not appear to have the capacity to model how to maintain primary relationships for Brittany and Amanda. [Grandmother]s attitude about her current relationship with her children is cavalier at best. Her apparent lack of concern about the emotional cut-off between herself and her daughters is not an acceptable background in which to place Brittany and Amanda. In addition, [Grandmother] has not been able to acknowledge the connection between her grandchildrens experience of physical abuse, and their current emotional and psychological problems. Due to the concerns that have come to light, it has been determined that [Grandmother] is not an option for adoptive placement for Brittany or Amanda K[]."
(FN9). "The most salient fact in this case at present is that [Grandmother] wishes to adopt both Brittany and Amanda because [Mother] is at risk of losing parental rights. There has been a continuation of friction between [Grandmother] and the [Department]. [Grandmother] has difficulty in areas of negotiation and compromise with County services, and CASA has concerns that she is unable to clearly understand Brittany and Amandas needs as issues separate from her own interaction with the legal entities involved. Unfortunately, [Grandmother]s attempts to be involved with the girls lives have caused considerable upset for the foster parents, and in CASAs latest conversation with [the foster mother], she said that she is extremely frustrated with [Grandmother]s attempts to manage the girls daily lives. She has reason to believe that [Grandmother] is trying to influence the girls against her, and says that [Grandmother] has written derogatory letters about her to the supervisor of the girls social worker. [Grandmother] is an intelligent and well-educated woman, and it is difficult for this CASA to believe that she can think that she is actually helping the girls with this behavior. In fact, she is jeopardizing the placement in this very good foster home when she should be supportive. The previous foster mother in Sonoma County (January, 2000 - June, 2000) also stated to CASA that one of the major reasons she could not keep the girls was the behavior of [Grandmother]. CASA believes that [Grandmother] thinks if she is disruptive in the foster home placements, the girls will eventually be given into her care.
"Foster father . . . has expressed to this CASA his wish to talk to the judge about the interaction with [Grandmother]. [Foster father] is concerned about what he perceives as disturbed behavior and general upset on the part of the girls following visits and/or telephone conversations with [Grandmother]. Neither [foster parent] report[s] similar upsets following visits or telephone conversations with [Mother]."
(FN10). The juvenile court added: "This is a difficult case in that the [M]others strong love for her children is very clear and her disability that prevents her from parenting, the result of a car accident, is beyond her control. It is the Courts hope, although not the basis for termination of parental rights, that the [M]others experts opinion will be borne out that [Mother] can be provided appropriate levels of contact that will ultimately benefit both [M]other and the [Minors] and lead to a best case scenario while the [Minors] enjoy the stability of an adoptive placement."
(FN11). See footnote, ante, page 1.
(FN12). "By the time of a section 366.26 hearing, the parents interest in reunification is no longer an issue and the childs interest in a stable and permanent placement is paramount. [Citations.] In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. [Citation.] The child has a compelling right to [have] a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] Adoption is the Legislatures first choice because it gives the child the best chance at such a commitment from a responsible caretaker. [Citations.]" (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
(FN13). "The exception provided in section 366.26, subdivision (c)(1)(A) must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.] So viewed, the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. The section 366.26, subdivision (c)(1)(A) exception is not a mechanism for the parent to escape the consequences of having failed to reunify. . . .
". . . [T]he parents interest in having an opportunity to reunify with the child is balanced against the childs need for a stable, permanent home. [Citation.] A similar balancing determination is obviously appropriate in deciding whether a child would be so harmed by terminating a relationship with a natural parent that an adoption should not go forward and the permanent plan should be diverted to guardianship or foster care. The Legislature has declared that in the ordinary case, a parents failure to reunify and the termination of reunification services at a prior hearing are a sufficient basis for terminating parental rights. ( 366.26, subd. (c)(1).)" (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
(FN14). Thus, we are not in a position to weigh any conflicts or disputes in the evidence. Even if different inferences can reasonably be drawn from the evidence, we cannot substitute our own inferences or deductions for those of the trial court, but must consider all of the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference from the evidence tending to establish the correctness of the juvenile courts decision, and resolving conflicts in support of the trial courts decision. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728; In re Rocco M. (1991) 1 Cal.App.4th 814, 820; In re Richard H. (1991) 234 Cal.App.3d 1351, 1363; In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
(FN15). "We do not agree that frequent and loving contact with the girls is sufficient to establish the benefit from a continuing relationship contemplated by the statute. No matter how loving and frequent their contact with the girls, appellants had not occupied a parental role in relation to them at any time during their lives. Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. [Citation.]" (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.)
(FN16). In this regard, it is not insignificant that Carson herself acknowledged that in all the bonding and attachment studies she had undertaken in dependency cases, only once had she concluded the bond between a given parent and child was insufficiently substantial to justify termination.
(FN17). Mother "invites this Court to establish a rule that promises by adoptive parents of post-adoption visitation are inadmissible at section 366.26 hearings where termination of parental rights is being contemplated." We decline the invitation. As recently amended, the juvenile dependency law expressly provides that the juvenile court retains jurisdiction over the child for purposes of enforcing a "postadoption contact agreement," and may order compliance thereof upon a finding that (1) "[t]he party seeking the enforcement participated, in good faith, in mediation or other appropriate alternative dispute resolution proceedings regarding the conflict, prior to the filing of the enforcement action"; and (2) "[t]he enforcement is in the best interest of the child." ( 366.29, subd. (c), added by Stats. 1998, ch. 1072, 2, amended by Stats. 2001, ch. 747, 4.) On its face, nothing in this new subdivision limits such a "postadoption contact agreement" to one dealing with contact between siblings. Mothers remedy is to seek such a postadoption contact agreement.
(FN18). See footnote, ante, page 1.
(FN19). Code of Civil Procedure section 909 provides as follows: "In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues."
(FN20).ss otherwise indicated, all further references to rules are to the California Rules of Court. Rule 23 provides in pertinent part: "(b) Proceedings for the production of additional evidence on appeal shall be in accordance with rule 41. The court may grant or deny the application in whole or in part, and subject to such conditions as it may deem proper. If the application is granted, the court, by appropriate order, shall direct that the evidence be taken before the court or a justice thereof, or before a referee appointed for the purpose. . . . Where documentary evidence is offered, either party may submit the original or a certified or photostatic copy thereof and the court may admit the document in evidence and add it to the record on appeal."
(FN21). Both appellants, Mother and Grandmother, have joined in and adopted the recommendations and requests of Minors appellate counsel.
(FN22). Counsel states: "If this reviewing court relies only on the evidence in the record, it should affirm the trial court orders. If the court relies on the new development regarding the refusal of the childrens caretakers to adopt them because they believe adoption would constitute an inappropriate psychological infringement on the childrens relationship with their birth mother, in conjunction with the paucity of evidence that these girls are adoptable in the abstract, then this court should reverse the trial courts order and remand for further hearing. [] . . . [] The undersigned believes that accepting the honest reality of the present situation requires reversal and remand for further proceedings to determine whether guardianship or long term foster care is the best alternative for these children given that their present caretakers are not willing to adopt them and the children are otherwise probably not adoptable."
(FN23). Counsel states: "Despite the fact that these children have special needs and are clearly bonded to their [M]other, the record below supports the juvenile courts decision to select adoption as the childrens permanent plan and to terminate parental rights. On behalf of the minors-based on the record below-I . . . would join in respondents response to Mothers argument regarding the termination of her parental rights, BUT circumstances have changed since the trial court reached its decision. [] . . . [] Even if an appropriate adoptive family could be found that is willing and able to contend with all of these challenges, the evidence strongly supports a decision NOT to remove these girls from their present placement because they have had too much chaos in their young lives already and have formed healthy attachments to their [present] caretakers. They have found a permanent home-regardless of the legal label attached to it."
(FN24). Counsel states: "While guardianship would ordinarily be the obvious choice, given the current position of the childrens caretakers, it is not so obvious in this case, because it leaves a window of opportunity for [G]randmother and [M]other to continue to try and reclaim the children, which the childrens caretakers, their therapists and the social worker all feel will be abused to the girls detriment. The law can only do so much. It would be nice if [M]other and [G]randmother would accept their limits and realize how lucky these girls are to have found such sensitive and dedicated caretakers. It would be nice if respondent would leave these girls in their present placement even if this court upholds the lower courts decision to terminate parental rights even though their caretakers are no longer willing to adopt them, especially given the sensitivity to the girls feelings their caretakers have shown in coming to this conclusion. However, niceness cannot be legislated and the court must follow the mandate of the legislature based on the facts before it."
(FN25). "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." (Cal. Const., art. VI, 21.)
"The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties." (Cal. Const., art. VI, 22.)
"Since 1862, our Constitution has contemplated the use of court commissioners to perform chamber business [citation], now referred to as subordinate judicial duties. [Citations.] In addition, since 1879, our Constitution has permitted a cause to be tried in the superior court by a temporary judge. [Citations.] . . . . [] The jurisdiction of a court commissioner, or any other temporary judge, to try a cause derives from the parties stipulation. [Citation.] Thus in the absence of a proper stipulation, the judgment entered by the court commissioner . . . would be void. [Citations.]" (In re Horton, supra, 54 Cal.3d at p. 90.)
(FN26). After setting out various requirements that, among other things, "the stipulation of the parties that a case may be tried by a temporary judge must be in writing" and "must be submitted for approval to the presiding judge or to the supervising judge of a branch court," and that "[t]he order designating the temporary judge must be endorsed upon the stipulation, which must then be filed," rule 244 twice specifically states that "[t]his subdivision does not apply to the selection of a court commissioner to act as a temporary judge." (Rule 244(a), (b), italics added.)
(FN27). Code of Civil Procedure section 638 provides in pertinent part: "A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties: [] (a) To hear and determine any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. [] (b) To ascertain a fact necessary to enable the court to determine an action or proceeding." (Code Civ. Proc., 638, subds. (a), (b), italics added.)
Code of Civil Procedure section 639 provides in pertinent part: "(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases . . . : [] (1) When the trial of an issue of fact requires the examination of a long account on either side . . . . [] (2) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. [] (3) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action. [] (4) When it is necessary for the information of the court in a special proceeding. [] (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon." (Code Civ. Proc., 639, subd. (a).)
(FN28). "The . . . presiding judge of the juvenile court or the senior judge if there is no presiding judge, may appoint one or more referees to serve on a full-time or part-time basis. A referee shall serve at the pleasure of the appointing judge . . . ." ( 247.)
"A referee shall hear such cases as are assigned to him or her by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court, except that a referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge." ( 248.)
"No order of a referee removing a minor from his home shall become effective until expressly approved by a judge of the juvenile court." ( 249.)
"Except as provided in Section 251, all orders of a referee other than those specified in Section 249 shall become immediately effective, subject also to the right of review as hereinafter provided, and shall continue in full force and effect until vacated or modified upon rehearing by order of the judge of the juvenile court. In a case in which an order of a referee becomes effective without approval of judge of the juvenile court, it becomes final on the expiration of the time allowed by Section 252 for application for rehearing, if application therefor is not made within such time and if the judge of the juvenile court has not within such time ordered a rehearing pursuant to Section 253. [] Where a referee sits as a temporary judge, his or her orders become final in the same manner as orders made by a judge." ( 250, italics added.)
"The . . . presiding judge of the juvenile court may establish requirements that any or all orders of referees shall be expressly approved by a judge of the juvenile court before becoming effective." ( 251.)
"At any time prior to the expiration of 10 days after service of a written copy of the order and findings of a referee, a minor or his or her parent or guardian or, in cases brought pursuant to Section 300, the county welfare department may apply to the juvenile court for a rehearing. . . . If an application for rehearing is not granted, denied, or extended within 20 days following the date of its receipt, it shall be deemed granted." ( 252.)
"A judge of the juvenile court may, on his [or her] own motion made within 20 judicial days of the hearing before a referee, order a rehearing of any matter heard before a referee." ( 253.)
"All rehearings of matters heard before a referee shall be before a judge of the juvenile court and shall be conducted de novo." ( 254.)
(FN29). This Local Rule is specifically authorized by the Legislature in Government Code section 70142.12, which states in pertinent part: "In Sonoma County, the judges of the superior court, by majority vote, may appoint a court commissioner. The superior court may provide that the commissioner, in addition to the powers and duties specified in Section 259 of the Code of Civil Procedure, shall perform the duties of a probate commissioner . . . and, if appointed by the presiding judge of the juvenile court, shall perform the duties of a juvenile court referee as specified in Section 247 of the Welfare and Institutions Code." (Gov. Code, 70142.12, subd. (a), italics added.)
(FN30). "Unless otherwise expressly specified, the commissioner, without further order of the court, shall act as a temporary judge with respect to any and all actions, causes or proceedings whether civil, criminal or juvenile in nature and whether regularly or specially assigned to the commissioner or to the department in which the commissioner is sitting." (Local Rule 12.3, italics added.)
(FN31). "[A]lthough the original constitutional language providing for temporary judges, as well as the current language of the Code of Civil Procedure, speaks of a written stipulation of the parties litigant, we have ratified a line of cases recognizing that a valid stipulation for purposes of the constitutional provision may arise as a result of the conduct of the parties. These cases hold that conduct short of an express oral or written stipulation may be tantamount to a stipulation that a court commissioner may sit as a temporary judge. [Citations.] . . . An attorney may not sit back, fully participate in a trial and then claim that the court was without jurisdiction on receiving a result unfavorable to him [or her]. [Citation.] [] . . . []
"The constitutional language providing for trial by a temporary judge has not been interpreted to mean that the authority to stipulate rests solely with the client, or that the clients express stipulation is necessary. On the contrary, the cases establishing the doctrine of tantamount stipulation to trial by a temporary judge refer routinely both to the clients and to the attorneys conduct in entering the stipulation. [Citations.] . . . [] Thus, our ratification of the doctrine of tantamount stipulation strongly suggests not only that an express stipulation by the client is unnecessary, but also that counsels conduct may provide the basis for the tantamount stipulation. [] . . . []
"In conclusion, in view of our constitutional provision for trial by temporary judge by stipulation, and in view of counsels traditional authority to act for the client in the procedural aspects of the case, we are confident that counsel can enter a stipulation to a temporary judge even though the court has not secured an express waiver from the litigant. . . . A stipulation to trial by a court commissioner in no way impairs the defendants right to a hearing. [Citation.] Just as counsel has authority to decide whether to challenge a judge under Code of Civil Procedure section 170.6 [citations], we think that counsel has authority to enter the stipulation at issue here, without an on the record admonition of the defendant, or the defendants express, on the record waiver of the right." (In re Horton, supra, 54 Cal.3d at pp. 90-93, 97-98, italics added, footnotes omitted.)
At the very least, Horton makes clear that the express stipulation of Mothers counsel to the commissioner trying the 366.26 hearing was sufficient to bind Mother without her express waiver.
(FN32). Because of the plethora of sometimes confusing statutory provisions and court rules governing the duties, functions and powers of referees, temporary judges and commissioners, the specific differences between these subordinate judicial officers are somewhat difficult to delineate. For example, rule 1415 provides in pertinent part: "(a) One or more referees may be appointed pursuant to section 247 to perform subordinate judicial duties assigned to the referee by the presiding judge of the juvenile court. [] (b) If the referee is an attorney admitted to practice in this state, the parties litigant may stipulate pursuant to rule 244 that the referee shall act as a temporary judge with the same powers as a judge of the juvenile court." (Italics added.) Yet rule 244 itself states that the express written stipulations otherwise required by that rule before a temporary judge may try a case do not apply "to the selection of a court commissioner to act as a temporary judge." (Italics added.) On the other hand, as the Local Rules explicitly state, even if a commissioner is "unable to act as a temporary judge in any matter," he or she may still serve as a juvenile court referee. (Local Rule 12.4 (A).) At a minimum, it is clear that the question whether a subordinate judicial officer is a commissioner is at least as important as whether he or she is a referee or a temporary judge, and indeed may frequently be determinative of the scope of the subordinate judicial officers powers.
(FN33). Indeed, Grandmothers reliance on rule 1417(b)(1) is peculiarly inapt to the facts of this case. Rule 1417 provides generally that "all orders of a referee shall become effective immediately," and "shall become final 10 calendar days after service of a copy of the order and findings . . . if an application for rehearing [by a juvenile court judge] has not been made within that time." (Rule 1417(a), (c), italics added.) Rule 1417(b)(1), the subdivision cited by Grandmother, deals narrowly with orders by a referee "removing a child from the physical custody of the person legally entitled to custody," and sets forth a limited exception that such orders "made by a referee shall not become effective unless expressly approved by a juvenile court judge within two court days." This provision is clearly inapplicable here, as there is no such order at issue. Neither Mother nor Grandmother was legally entitled to physical custody of the Minors by the time of the 366.26 proceedings before us; the only such persons were the D.s, the Minors foster parents. (In re Carina C., supra, 218 Cal.App.3d at p. 624.)
(FN34). The cases of In re Drexel F. (1976) 58 Cal.App.3d 801 and In re Adolphus T. (1979) 96 Cal.App.3d 642, cited by Grandmother, are distinguishable from the instant case. In the first place, both Drexel and Adolphus were juvenile criminal cases under section 602. They were thus procedurally and substantively completely different from the instant civil dependency section 366.26 proceeding. The notice provisions construed as mandatory in Drexel and Adolphus represent important safeguards for the liberty interests of minor criminal defendants. We decline to apply Drexels interpretation of the predecessor statute of section 248 to the substantively different procedural context of a section 366.26 hearing before a commissioner in a civil dependency proceeding, particularly where the commissioner at the hearing was clothed with the power and authority of a temporary judge, the litigant claiming the right to express notification was neither a minor nor a defendant, and she was represented by competent counsel.
In addition, we note that the issue before the court in Drexel concerned the interpretation of former Welfare and Institutions Code section 554, the predecessor statute to section 248. Under section 248 as currently written, a referee is empowered to exercise the same judicial authority as a judge of the juvenile court, "except that a referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge." The quoted language was not present in the statute at the time of Drexel. (In re Drexel F., supra, 58 Cal.App.3d at p. 804.) The new language in section 248, which is all the more applicable to a criminal case such as Drexel, is clearly not relevant to the present proceeding, "which is civil in nature, designed not to prosecute the parents but to protect the child." (In re Carina C., supra, 218 Cal.App.3d at p. 624; see also In re Horton, supra, 54 Cal.3d at pp. 93-98.)
(FN35). See footnote, ante, page 1.
(FN36). The case relied upon by Grandmother, Moore v. City of East Cleveland (1977) 431 U.S. 494, is inapposite. In that decision, the Supreme Court placed constitutional limits on the governments zoning power to restrict the right of an extended family to live together in the same housing. (Id. at pp. 499-500, 504-506.) The case did not deal with juvenile dependency placements, and certainly cannot be read as creating or implying any new constitutional right on the part of grandparents to relative placement of their dependent grandchildren.
(FN37). Section 361.3 states that "preferential consideration" must be given to any request by a relative of the child for placement with the relative, and sets out a number factors which must be considered "[i]n determining whether placement with a relative is appropriate." The factors include the following: "[t]he best interest of the child, including special physical, psychological, educational, medical, or emotional needs"; "[t]he wishes of the parent, the relative, and child, if appropriate"; "[t]he good moral character of the relative and any other adult living in the home, including whether any individual residing in the home . . . has been responsible for acts of child abuse or neglect"; "[t]he safety of the relatives home"; and "[t]he ability of the relative to . . . [] [p]rovide a safe, secure, and stable environment for the child," "[e]xercise proper and effective care and control of the child," and "[p]rotect the child from his or her parents." ( 361.3, subds. (a)(1), (2), (5), (7)(A), (B), (D), (8).)
(FN38). We note that, contrary to Grandmothers allegations, the Department included detailed assessments of Grandmothers suitability for relative placement of the Minors in all of its reports, including those prepared for the six-month, twelve-month, and section 366.26 hearings. Each of those assessments recommended that Grandmothers request for relative placement be denied because of her demonstrated inability to protect the Minors from Mothers abuse, her own reported history of corporal punishment and abuse, and her failure and/or refusal to cooperate with the Department in the dependency and reunification process. As the attorneys for both the Department and the Minors pointed out, the question of relative placement needed to be addressed at the 366.26 hearing in response to Grandmothers own request for such placement.
(FN30). Grandmother argues that her failure to raise the relative placement issue at the section 366.26 hearing and her affirmative efforts to exclude the admission of evidence thereon should not be considered a waiver because of changes in the rules with respect to whether the preference for relative placement may be considered after reunification efforts have ceased. She asserts that in view of the general complexity of dependency law, "[i]t would be unfair" to find that the "inaction" of her trial counsel "amounted to a waiver by his client, who has fought so hard to get custody of Brittany and Amanda."
We are not persuaded by this appeal to our sympathy. Trial counsels efforts to prevent the juvenile court from considering this issue went far beyond a passive failure to raise the issue, attributable perhaps to confusion about the current state of the changing law of dependency and relative placement. The record shows that counsel repeatedly sought to strike any and all parts of the Departments submissions discussing Grandmothers fitness for placement. Counsel was quite evidently eager to prevent the juvenile court from considering these highly negative assessments of Grandmother. This was a tactical choice on his part. While it does not rise to the level of ineffective assistance of counsel, it certainly constitutes waiver of the issue at the very least, if not invited error.
(FN40). Incredibly, Grandmother now attacks as "paternalistic" the testimony of bonding expert Carson that forcing the Minors to testify would be tantamount to "institutional abuse." Yet at the same time Grandmother joins in Mothers argument that the order terminating parental rights should be reversed because of Carsons expert testimony and descriptions of the strong emotional bond between Mother and the Minors. Grandmother cannot have it both ways; either Mothers expert witness is to be relied upon for her opinions, or she is not.
(FN41). Grandmother raises a number of other issues in her reply brief which were not addressed in her opening brief or at any other point in the proceedings. She may not raise these arguments for the first time in this manner. It is an established rule that points raised for the first time on appeal in a reply brief will not be considered in the absence of a showing of a good reason for the failure to present them before. Because Grandmother failed without good cause to raise these contentions until her reply brief, we need not address them. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765; Kaichens Metal Mart, Inc. v. Ferro Cast Co. (1995) 33 Cal.App.4th 8, 17 ["Points raised in a reply brief for the first time generally will not be considered"]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [points raised for the first time in the reply brief will not be considered unless good reason is shown for the failure to present them before].)