Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK62287. Emily A. Stevens, Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Fred Klink, Senior Deputy County Counsel and Frank DaVanzo, Principal Deputy County Counsel for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Father, D.B., Sr., appeals from the termination of his parental rights, alleging error in the juvenile court’s jurisdiction and disposition findings and orders. Respondent contends that father forfeited review of such findings and orders, by failing to file a timely appeal. Father contends that considerations of due process require making an exception. We find no due process violation that undermined the fundamental fairness of the proceedings, and thus no exception applies to preserve the challenged issues for review. We also reject father’s contention that the juvenile court abused its discretion in denying a continuance of the Welfare and Institutions Code section 366.26 hearing, and we affirm the order terminating father’s parental rights.
The section 366.26 hearing is the selection and implementation stage, at which the juvenile court determines whether the permanent plan will be adoption, guardianship or long-term foster care. If adoption is chosen, parental rights will be terminated. (§ 366.26, subd. (b)(1).) All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
BACKGROUND
D.B., Jr., was detained May 17, 2006, at the age of three, when the Department of Children and Family Services (Department or DCFS) filed a petition to bring him within the jurisdiction of the juvenile court. The petition alleged, among other things, that D.B., Jr. had been found to have welts, scars and new and old bruises consistent with inflicted injuries, and that his mother had left him with an unrelated caretaker without having made appropriate provision for his care and supervision. The petition alleged that mother had either inflicted the abuse, or had failed to protect D.B., Jr. from her male companion, and that mother had left D.B., Jr. without any provision for his support.
The DCFS social worker (CSW) reported to the juvenile court that after mother had failed to return for D.B., Jr., his babysitter dropped him off at the home of his paternal aunt, A.J. A.J. noticed the welts and scars on his body, and called the police. D.B., Jr. told the police that mother’s boyfriend had inflicted the injuries. The police were unable to locate mother. The Department assessed A.J.’s home for possible placement, but a criminal check showed that she had been convicted of felony grand theft. The Department also assessed the home of a paternal great uncle, but the home did not meet appropriate standards. Convicted of robbery, father had been incarcerated since April or May 2004.
The jurisdiction and disposition hearing was held June 8, 2006. In her report prepared for that hearing, the CSW reported that mother had not yet been located. Father was expected to remain incarcerated until July 2010. D.B., Jr.’s maternal grandmother told the CSW that mother regularly left the child with her for three or four weeks at a time each summer. A.J. told the CSW that mother had also left him with her for months at a time, calling periodically to say that she was coming for him, but never showing up.
The CSW also reported that A.J. and her daughter, R.J., paternal aunt and cousin, had expressed an interest in having D.B., Jr. placed with them in their two-bedroom home, where they lived together with R.J.’s two minor children. The Department assessed A.J.’s home for possible placement, but a criminal check showed, in addition to A.J.’s grand theft conviction, that R.J. had been arrested in 1990 for robbery, and had been convicted of felony forgery in 1996 and felony possession of cocaine base for sale in 1998. R.J. claimed that the robbery had been reduced to a misdemeanor at the time of conviction. The CSW asked R.J. to provide the necessary documentation to prove her claim so that she could seek a waiver of the disqualifying offenses.
The CSW reported that although a robbery conviction could not be waived, and would preclude placement in R.J.’s home, a reduction to a misdemeanor would make the offense eligible for a waiver. (See generally § 361.4; Health & Saf. Code, § 1522.)
R.J. appeared at the June 8, 2006 hearing, and asked the court to permit her to adopt D.B., Jr. The court did not remember what the Department’s report indicated regarding the paternal relatives’ criminal records. Father’s counsel stated that R.J. had a misdemeanor conviction, but he did not mention the other convictions shown by A.J. and R.J.’s records. R.J. did not deny the conviction, but claimed that it had occurred when she was 16 years old. The court replied: “The law requires that they get a waiver. So they are looking at you now.”
The CSW located an open dependency case for mother’s other son, D.B., Jr.’s half-brother Jaymond, who had been placed with Jaymond’s paternal aunt, N.S., several years before. N.S. expressed an interest in having D.B., Jr. placed with her as well.
Father appeared in custody at the June 8, 2006 hearing, represented by appointed counsel, Mr. Davis. The court declared him D.B., Jr.’s presumed father. As mother’s whereabouts were still unknown, and father faced a lengthy incarceration, the Department recommended no reunification services for either parent. The court explained to father that if no reunification services were provided, the court would eventually determine whether adoption, long-term foster care or guardianship would be the appropriate placement, and that if adoption were selected, father’s parental rights would be terminated. Father stated that he understood, and requested that the court place D.B., Jr. with his relative, Kathleen J. The court granted custody of D.B., Jr. to the Department, with discretion to choose suitable placement.
This reference and one other to Kathleen appear to be transcription errors, as there is no mention of Kathleen in any DCFS report. From the context, we construe the two references to Kathleen as meaning A.J.. Similarly, the reporter’s transcript refers to Wanda, but there is no mention of that name in any report. Because R.J.’s name rhymes with Wanda, we read that name as R.J.
After striking the allegation that mother had personally abused D.B., Jr., the court sustained the remaining allegations. The court found by clear and convincing evidence that substantial danger existed to the minor’s physical or emotional health, and that there was no reasonable means to protect him without removal from “parent’s” physical custody. The court set a hearing for July 7, 2006, to determine whether services would be ordered for mother or father, but advised father that the Department was recommending no reunification services.
The sustained allegations had been made under subdivisions (b), (e), (g) and (i) of section 300, each of which contains several alternative descriptions of children subject to dependency jurisdiction. The court specified the particular descriptions upon which jurisdiction was based, by referring to them as paragraphs. For example, the court sustained the allegation under section 300, subdivision (g), “paragraph: 1.” The first description -- or “paragraph” -- of subdivision (g) provides that the court may take jurisdiction where “[t]he child has been left without any provision for support. . . .”
In father’s presence, his counsel waived his appearance at the July 7 hearing.
At the July 7, 2006 hearing, Mr. Davis appeared on behalf of father, who remained incarcerated. The court, apparently under the impression it had previously denied reunification services for father, stated that the hearing was to address reunification services for mother only. Father’s counsel agreed. The minutes were amended nunc pro tunc to reflect that no reunification services for father had been ordered.
In her July 2006 review report, the CSW stated that in May, she had referred R.J. for a home assessment, and that in June, the Los Angeles Police Department refused to release the disposition report regarding R.J.’s robbery conviction, because it was a juvenile record. On June 21, 2006, the CSW informed R.J. that she should obtain the report and provide it to the CSW.
The issue of reunification services for mother was continued to August 14, 2006. At that time, the CSW reported that mother had been incarcerated since June 2006, and that mother had failed to contact the CSW despite notice. The court ordered reunification services for mother, and calendared the six-month status review hearing for December 7, 2006.
Father remained incarcerated and did not appear August 14, 2006. His attorney, Mr. Davis, informed the court that A.J. and R.J. were present in court requesting custody, and that father requested placement with his relatives. Davis represented that all criminal scans had been done, but did not advise the court of the results. The Department had placed D.B., Jr. with N.S., Jaymond’s paternal aunt, and the court found it more appropriate that he remain with his sibling. The court thus ordered that D.B., Jr. remain with N.S., whom the court found to be a nonrelative extended family member, but gave the Department discretion to place him with the paternal relatives. The court suggested to counsel that if the Department did not move D.B., Jr. to the home of A.J. and R.J., once the home had been approved by the Department, he should file a section 388 petition. No such petition was filed, and the record does not reflect that waivers were obtained for A.J.’s and R.J’s criminal convictions.
Section 388 permits a parent or other person with an interest in a dependent child to petition the court to change, modify or set aside any order previously made.
At the December 7, 2006 six-month review hearing, the CSW reported that mother had been released from jail in October, but had not contacted the Department and had not complied with her case plan. Father remained incarcerated at Centinela State Prison, and did not appear at the December review hearing. His attorney requested that A.J. and R.J. be evaluated for D.B., Jr.’s placement with them. Mr. Davis represented that D.B., Jr. acted up when returned to N.S.’s home, that he was unhappy and that he would prefer to live with A.J. and R.J.. The minor’s attorney disagreed, arguing that D.B., Jr. was stable and seemed to be happy and thriving in his current placement, and was too young to articulate where he would prefer to live. The court invited father’s counsel to file a section 388 petition, and he stated he would do so. The court found by clear and convincing evidence that returning D.B., Jr. to the custody of his “parent(s)” would create a substantial risk to his physical or emotional well-being.
“At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent . . . unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e).)
No section 388 petition was filed.
The court scheduled the permanency plan hearing under section 366.21, subdivision (f), for June 7, 2007. Mother and Jaymond’s father stipulated to the termination of their parental rights as to Jaymond, and mother agreed to the termination of reunification services with regard to D.B., Jr. In doing so, mother asked that D.B., Jr. remain with N.S. and her partner. New counsel for father, Mr. Howell, appeared on his behalf. The court determined that father had not been properly noticed, conducted the review hearing and found by clear and convincing evidence that D.B., Jr. could not safely be returned to the custody of his “parent(s).” However, the court stayed entry of its orders until the section 366.22 hearing, set for August 6, 2007, in order to permit proper service on father.
The section 366.21 hearing is held within 12 months. Subdivision (f), requires the court to order the return of the child to the parents’ custody, unless it finds that a return to custody would create a substantial risk of detriment to the safety, protection or physical or emotional well-being of the child. The court may terminate reunification services at that time, or, if it finds a substantial probability that the child will be returned within six months, continue them for that period. (§ 366.21, subd. (g).).
At a section 366.22 hearing, if the court does not return the child to a parent or guardian, it must set the section 366.26 selection and implementation hearing in which parental rights may be terminated. (§ 366.22, subd. (a).)
At the August 6 section 366.22 hearing, the Department provided the court with proof of service of notice to father. Father was still incarcerated and did not appear personally. The court lifted the stay and entered an order setting a section 366.26 selection and implementation hearing for November 13, 2007. Although Howell indicated to the court that his notes reflected service on father of information regarding his right to petition for writ review, the court stated that writ information would again be sent to father with notice of setting the section 366.26 hearing.
Centinela State Prison was served with an order for father’s appearance at the November 13 section 366.26 hearing. Father waived his appearance, but checked a box indicating he wished to be represented by counsel. At the hearing, Howell told the court that he had not communicated with father, that a letter he had sent to father was returned and that his investigator had not yet determined why. He requested a continuance to permit him to communicate with father. The court noted that proper notice had been given father of the hearing to terminate his parental rights, and that father had personally waived his appearance. Finding no good cause to continue the hearing, the court denied counsel’s request. The court found by clear and convincing evidence that D.B., Jr. and his half-brother were likely to be adopted, and that reunification services had been terminated, and it terminated parental rights as to both children.
Mother’s counsel also requested a continuance on the ground that the adoption home study had not been completed. The court, noting that the Department had indicated it anticipated no problems completing the home study, denied the request.
Neither A.J. nor R.J. appeared at the hearing. However, after the proceedings had concluded and the court had recessed, several of father’s relatives, including A.J. and R.J., arrived, spoke to father’s counsel and asked to address the court. Speaking for the relatives, R.J. asked the court questions regarding the procedure, expressed some concerns and asked that they be considered as adoptive parents. R.J. claimed that she had passed the home evaluation. The court explained the purpose of the hearing conducted that morning, informed her that a hearing to consider adoption had been scheduled for February 4, 2008, and advised her to apply to DCFS for adoption of D.B., Jr.
Father timely filed a notice of appeal from the order terminating his parental rights.
DISCUSSION
1. Contentions
Father challenges the findings and orders made at the jurisdiction and disposition stages of the proceedings, contending that the removal of D.B., Jr. from his custody was unsupported by substantial evidence, and that the court erroneously failed to find by clear and convincing evidence that granting reunification services would be detrimental to D.B., Jr. Father also objects to the nunc pro tunc order, to which his attorney agreed, denying reunification services by amending the minutes of June 8, 2006. In addition to challenging the jurisdiction and disposition orders, father contends the juvenile court abused its discretion in denying his attorney’s request for a continuance of the section 366.26 hearing.
In its initial brief, respondent contended that father had forfeited review of the challenged jurisdiction and disposition findings and orders, because he failed to appeal from the disposition order. Respondent also contended that father forfeited his challenge to the nunc pro tunc order, because counsel acquiesced in the court’s erroneous belief that reunification services had been denied on June 8, 2006. Father contended in reply that he had not forfeited these issues on appeal because he came within exceptions to the rule requiring a timely appeal from the disposition order.
If father had raised the issue in a timely appeal, it is probable that the doctrine of invited error would have precluded its review. (See In re Jamie R. (2001) 90 Cal.App.4th 766, 771-772.) Further, to obtain a reversal, father would have been required to show prejudice from the denial of reunification services. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1124.) Despite father’s suggestion to the contrary, the dependency court is prohibited from ordering reunification services for a parent who has been convicted of a violent felony, such as robbery, “‘unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.’” (Id. at p. 1123, quoting § 361.5, subd. (c), italics added.) Here, evidence showed that father had been convicted of robbery, a violent felony as defined in Penal Code section 667.5, subdivision (c)(9). Prejudice is unlikely under such circumstances. (Kobe, supra, at p. 1123.)
Respondent also addressed the merits of father’s contentions. Additionally, respondent contended that the court properly denied father’s request for a continuance of the section 366.26 hearing, because no evidence was submitted to show good cause for the continuance. Respondent argued that father failed to show the decision prejudiced him.
At oral argument, counsel for respondent announced for the first time that the Department was prepared to concede that the juvenile court erred in failing to make a determination under section 361.2, subdivision (a), at the June 8, 2006 disposition hearing. Without discussing the issue of forfeiture, counsel initially suggested that the error required reversal and remand for the appropriate determination. We invited the parties to file a stipulation for reversal, or if they could not agree on a stipulation, to submit letter briefs discussing their current positions on this issue.
The parties did not stipulate to reversal and have instead filed letter briefs. Respondent now takes the position that any error was harmless. Father contends the court should first have determined, under section 361, subdivision (c), whether to remove D.B., Jr. from his custody, and if so, whether to return D.B., Jr. to his custody, pursuant to section 361.2, subdivision (a). Father contends that reversal is required because the court failed to make the detriment finding required by both statutes. Father contends that because A.J. and R.J.’s convictions were subject to waiver, the court could not properly have made a finding of detriment until after DCFS issued a final report as to waiver and thereafter determined whether A.J. or R.J. could qualify as appropriate relative caretakers.
The findings required by the two statutes are not identical, but are similar. Under section 361, subdivision (c)(1), the court must return the child to the custodial parent, unless it finds that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home.” Under section 361.2, subdivision (a), custody of the child must be given to a noncustodial parent requesting custody, unless the court “finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
Father contends the asserted error was not harmless, because the court’s failure to make the required findings violated his right to due process before the court could deprive him of the right to care for his child.
2. The “Waiver Rule” and Due Process Exception
As provided by section 395, the appealable “‘judgment’” in a dependency proceeding is the disposition order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 (Meranda).) All subsequent orders are directly appealable as post-judgment orders, except the order terminating reunification efforts and setting a section 366.26 hearing, which must be reviewed pursuant to a petition for extraordinary writ review. (Ibid.; § 366.26, subd. (l).) “A consequence of section 395 is that an unappealed disposition or post disposition order is final and binding and may not be attacked on an appeal from a later appealable order. [Citations.]” (Meranda, at p. 1150.) Father did not take an appeal from the disposition order, entered June 8, 2006, or from the nunc pro tunc order, entered July 7, 2006, and thus failed to preserve for review his challenge to the order and findings made on those dates.
Further, the order terminating the reunification period and setting the section 366.26 hearing was entered August 6, 2007. As father failed to petition for extraordinary writ review of that order, he is now foreclosed from seeking relief from any order made by the dependency court on or prior to that date. (§ 366.26, subd. (l); In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-816.)
Father contends that no appeal from the disposition order was required to preserve his present challenge because the asserted errors were allegedly of constitutional dimension, causing a denial of due process. Father contends that his counsel’s errors resulted in a denial of due process, because counsel failed to object to inadequate findings, and then failed to file a notice of appeal from the disposition order.
A parent has a statutory right to competent counsel (§ 317.5, subd. (a)); however, for ineffective assistance to reach constitutional dimensions in a dependency proceeding, it must appear that “‘counsel’s deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair.’ [Citations.]” (Meranda, supra, 56 Cal.App.4th at p. 1153.)
In Meranda, the court rejected a similar argument: “The principle -- which for convenience we will identify as the ‘waiver rule’ -- that an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order is sound. We decline to carve out an exception to it here even though the issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel.” (Meranda, supra, 56 Cal.App.4th at p. 1151; see also In re Janee J. (1999) 74 Cal.App.4th 198, 206 (Janee).)
Nevertheless, the waiver rule will not be enforced if due process forbids it. (Janee, supra, 74 Cal.App.4th at p. 208.) Due process precludes application of the waiver rule where a defect so fundamentally undermined the statutory scheme that the parent was denied its protections as a whole, such as where the parent lacked notice of the right to petition for review of the order setting the section 366.26 hearing. (Id. at pp. 208-209.) However, review even of a fundamental defect -- such as a parent’s lack of notice of the jurisdictional hearing -- may be forfeited if, after receiving notice, the defect is not raised in the trial court, or no appeal is taken at the earliest opportunity. (In re B. G. (1974) 11 Cal.3d 679, 689; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) “[T]o fall outside the waiver rule, defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed.” (Janee, supra, 74 Cal.App.4th at p. 209.)
a. Due Process and Incarcerated Custodial Parents
Father does not claim he was deprived of notice. He contends that counsel’s errors resulted in the termination of his parental rights solely because he was incarcerated. He claims that In re S.D. (2002) 99 Cal.App.4th 1068 (S.D.), is controlling here. In that case, although the incarcerated mother had failed to appeal from the disposition order, the court found no forfeiture of the right to review the jurisdiction finding, because counsel’s error resulted in a finding of jurisdiction where there was none. (See id. at pp. 1077-1079.) No such jurisdictional error occurred here.
In S.D., the petition was sustained on the ground that the minor’s custodial parent (the mother) had recently been incarcerated and was unable to provide for the care of her child. The court of appeal found mother’s counsel had inexplicably and erroneously conceded jurisdiction, despite clear evidence that the minor’s mother had made arrangements for the child’s care during her incarceration. Citing the “unusual” circumstances of the case, the court found an exception to Meranda’s waiver rule where there was an absence of any evidence to support the court’s jurisdiction. (S.D., supra, 99 Cal.App.4th at pp. 1070, 1077-1079.) Here, in contrast, there was ample evidence to support jurisdiction without regard to father’s incarceration. The evidence established that mother had left D.B., Jr. with an unrelated caretaker without having made appropriate provision for his care and supervision, and had failed to protect him from abuse inflicted by her male companion. This was sufficient to establish the jurisdiction of the juvenile court. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against both”].) There was no fundamental defect in jurisdiction.
“Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court . . . [¶] . . . [¶] (g) . . . the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child. . . .” (§ 300 [description 3].)
Thus, any defects in the proceedings under such circumstances would provide no exception to Meranda’s waiver rule because at most, they would amount to “mere errors that might have been held reversible had they been properly and timely reviewed.” (Janee, supra,74 Cal.App.4th at p. 209; cf. In re Isayah C. (2004) 118 Cal.App.4th 684, 687, 695-696 [similar issues properly raised on appeal from disposition order].) As father did not raise such issues in an appeal from the disposition order, he has forfeited review of them. (Meranda, supra, 56 Cal.App.4th at pp. 1150-1151; Janee, supra,74 Cal.App.4th at pp. 208-209.)
b. Due Process and Unfitness Findings
Father contends that the juvenile court was precluded from terminating his parental rights because the court never found that father was unfit. Father relies on In re Gladys L. (2006) 141 Cal.App.4th 845 (Gladys), in which the appellate court held that a jurisdictional prerequisite to a later termination of a parent’s parental rights included a sustained allegation of unfitness as to that parent. (Id. at pp. 848-849.) The court held that the absence of both pleading and proof of parental unfitness constituted a denial of due process which was not forfeited by failing to appeal prior to the termination of parental rights. (Id. at p. 849.) Here, however, father does not contend that jurisdiction was improper because his unfitness had not been alleged in the petition. Rather, he argues that the reasoning of Gladys compelled the court to make a finding of unfitness in the disposition hearing.
Disagreeing with Gladys, another court held that due process did not require allegations against both parents in the initial pleading, citing authority holding that juvenile court jurisdiction over a child may be based upon the actions of either parent. (In re P.A. (2007) 155 Cal.App.4th 1197, 1212 (P.A.), citing In re Alexis H. (2005) 132 Cal.App.4th 11, 16, In re Alysha S., supra, 51 Cal.App.4th at p. 397, & In re James C. (2002) 104 Cal.App.4th 470, 482 (James).) We agree with the reasoning of P.A., and conclude that the allegations of the petition against mother were sufficient to support jurisdiction in this case.
Father’s argument and the Gladys court’s holding rely upon language in Santosky v. Kramer (1982) 455 U.S. 745 (Santosky), which established minimal due process requirements for interfering with parents’ “fundamental interest in the care, companionship, and custody of their children.” (Gladys, supra, 141 Cal.App.4th at p. 848, citing Santosky, at p. 758.) In Santosky, the United States Supreme Court held: “Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” (Santosky, supra, at pp. 747-748.) “After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.” (Id. at p. 760.) “But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” (Ibid.)
In Santosky, the Supreme Court reviewed New York’s dependency scheme, under which the terminology for the various stages and hearings is not identical to California’s. (See Santosky, supra, 455 U.S. at pp. 750, 759-760.) The “initial proceeding” appears to correspond to the section 366.22 hearing, as the court describes it as proceedings consisting of a contested factfinding hearing in which “[t]he State seeks to establish a series of historical facts about the intensity of its agency’s efforts to reunite the family, the infrequency and insubstantiality of the parents’ contacts with their child, and the parents’ inability or unwillingness to formulate a plan for the child’s future.” (Santosky, supra, at pp. 760, 762; see also id. at pp. 764-766.) Because the court refers to the “dispositional stage” as one following the “initial proceeding,” the dispositional stage in that case appears to correspond to the section 366.26 hearing to terminate parental rights. (See id. at p. 760, italics omitted.) Thus, we do not construe Santosky as enunciating procedural requirements for the jurisdictional or dispositional stages under California law.
Under Santosky, the proof of parental unfitness must be made prior to the termination of parental rights. (Santosky, supra, 455 U.S. at pp. 760-761; see P.A., supra, 155 Cal.App.4th at pp. 1210-1211.) California’s dependency scheme meets Santosky’s requirement, because detriment must be established by clear and convincing evidence prior to the termination of parental rights. (P.A., supra, at p. 1211.) By the time dependency proceedings reach the termination stage in California, there have been multiple findings of detriment in previous hearings, and thus, parental unfitness is so well established that there is no longer “‘reason to believe that positive, nurturing parent-child relationships exist.’ [Citation.]” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256, quoting Santosky, at p. 766; see also P.A., supra, at pp. 1211-1212.)
After disposition in this case, but prior to termination of parental rights, the juvenile court found by clear and convincing evidence that placing D.B., Jr. in his parents’ custody would be detrimental to the child. The court made the findings at the review hearing held December 7, 2006, and at the section 366.21 hearing June 7, 2007. The court’s detriment findings thus satisfied Santosky’s requirement of due process. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 253, 256; P.A., supra, 155 Cal.App.4th at pp. 1211-1212.)
The court stayed entry of the latter order until August 6, 2007, the date of the section 366.22 hearing, in order to permit proper notice to be served on father.
c. Due Process under Sections 361 and 361.2
In his post-argument supplemental brief, father contends that the court failed to make the findings required by sections 361, subdivision (c), and 361.2, subdivision (a). Father contends that such failure resulted in a violation of his right to due process, required before the court could deprive him of the right to care for his child. Respondent contends in its supplemental brief that section 361.2, not section 361, applied here, and that although the court erred in failing to proceed under section 361.2 at the disposition hearing, the error was harmless.
By its express terms, section 361, subdivision (c), applies only to a child “taken from the physical custody of his or her parents.” Nevertheless, inviting the court to engage in a legal fiction unsupported by authority, father contends that the physical location of the child prior to disposition is irrelevant. Thus, father contends, the court was required to determine at the disposition hearing whether D.B., Jr. should be removed from father’s “physical custody.” We disagree. We cannot create a legal fiction that contradicts the express terms of the statute. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1120 [where the statutory language is express and unambiguous, it is conclusive].) Father had been incarcerated for two years when the dependency petition was filed. A parent who has been incarcerated for some time prior to the filing of the petition cannot be said to have physical custody of the minor. (In re V.F. (2007) 157 Cal.App.4th 962, 969-970.)
Because D.B., Jr. did not reside with father when the dependency petition was filed, section 361 was inapplicable, and the juvenile court’s task was not to determine whether the child should be removed from father’s custody, as father contends. Further, the court made the appropriate finding by clear and convincing evidence pursuant to section 361, subdivision (b), that there existed substantial danger to the physical health of the minor, making removal from the custodial parent -- his mother -- necessary for his protection. Thus, there was no error under section 361.
Once a child is removed from the physical custody of one parent at the disposition hearing, the court’s next statutory obligation regarding custody is to inquire whether the noncustodial parent is interested in assuming custody. (§ 361.2, subd. (a).) An appellate court has recently held that incarcerated parents have the same right as other parents to be given the opportunity to request custody under section 361.2. (In re V.F., supra, 157 Cal.App.4th at pp. 965-966.) Under the reasoning of that case, the court should have asked father, as the noncustodial parent, whether he desired custody; if father had requested custody, the court would have determined whether “placement with that parent would be detrimental to the child’s safety, protection, or physical or emotional well-being.” (Id. at p. 966.)
The court did not make the required inquiry, but father’s counsel asked the court to place D.B., Jr. with A.J., and his relatives, A.J. and R.J., appeared and asked the court to place D.B., Jr. with them. Father contends that the requests were the functional equivalent of father’s request for custody under section 361.2, subdivision (a), triggering the court’s obligation to make the appropriate findings in writing or on the record. It is unclear from the juvenile court’s comments whether it construed the requests in that manner, but the court addressed on the record the basis for its determination that D.B., Jr. could not be placed with A.J. and R.J. After inquiring about the relatives’ criminal records, the court stated: “The law requires that they get a waiver.” The court recommended to R.J. that she contact the social worker.
Assuming arguendo that the court’s comments were insufficient findings under section 361.2, subdivision (c), father has not shown why considerations of “‘fundamental fairness’” would require reversal at this stage of the proceedings. (Meranda, supra, 56 Cal.App.4th at p. 1151.) Father had notice of the disposition hearing and he was present with counsel. Thus, father and his counsel had sufficient notice of the alleged error to permit a timely appeal from the disposition order.
See, e.g., In re V.F., supra, 157 Cal.App.4th 962, and In re Isayah C., supra, 118 Cal.App.4th 684, where incarcerated fathers under similar circumstances appealed from the orders denying custody.
Further, father had a second opportunity for review of the issue. Father’s counsel renewed the request for placement with A.J. and R.J. at the August 14, 2006 review hearing. Counsel complained that the Department had not evaluated them. The court held that the issue had not been properly brought before it, and counsel represented that he would file a section 388 petition. Father neither appealed from the August 14 order, nor filed a section 388 petition.
To determine whether a forfeited review should be allowed to go forward, the appellate court must weigh whatever benefits father might obtain from such review against “[t]he state’s [strong] interest in expedition and finality” and “[t]he child’s interest in securing a stable, ‘normal’ home . . . .” (Meranda, supra, 56 Cal.App.4th at p. 1152.) Respondent contends that the absence of the findings required under section 361.2 was harmless, because the court had no authority to approve father’s plan for the care of D.B., Jr. during father’s long incarceration. Because father would not benefit from a review of nonreversible harmless error, we turn to the merits of the parties’ contentions to determine whether the alleged error under section 361.2 was in fact, harmless.
The juvenile court must weigh all relevant factors in determining detriment under section 361.2, subdivision (a). (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.) Relevant factors include the length of the parent’s incarceration and his ability to make appropriate arrangements for the child’s care during that time. (In re V.F., supra, 157 Cal.App.4th at p. 966.) At the time of the June 2006 disposition hearing in which A.J. and R.J. requested custody, and again at the August and December review hearings when father’s counsel requested placement of D.B., Jr. with A.J. and R.J., it was undisputed that the two women had felony criminal convictions. Father did not claim at any of the hearings that exemptions had been obtained by the Department. Without an exemption, a child may not be placed in the home of any relative or other caretaker who has been convicted of any crime other than a minor traffic offense. (§ 361.2, subd. (d)(2); § 361.4, subd. (d)(2); Health & Saf. Code, § 1522.) Appellate courts have consistently held that a juvenile court lacks authority to waive a disqualifying criminal conviction. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1056; Los Angeles County Dept. of Children & Family Services v. Superior Court (2005) 126 Cal.App.4th 144, 152; Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2001) 87 Cal.App.4th 1161, 1165-1166 (Valerie A.).) Accordingly, at no time in the proceedings below could the court have placed D.B., Jr. with A.J. or R.J.
In addition, the court should consider the child’s sibling relationship. (In re Luke M., supra, 107 Cal.App.4th at pp. 1422-1423.) The court considered D.B., Jr.’s relationship with his half-brother, with whom he resided, when the court refused father’s August 14, 2006 request to place the child with A.J. and R.J.
Section 361.4, subdivision (d)(2), provides: “If the criminal records check indicates that the person has been convicted of a crime that the Director of Social Services cannot grant an exemption for under Section 1522 of the Health and Safety Code, the child may not be placed in the home. If the criminal records check indicates that the person has been convicted of a crime that the Director of Social Services may grant an exemption for under Section 1522 of the Health and Safety Code, the child may not be placed in the home unless a criminal records exemption has been granted by the county, based on substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child . . . .” Health and Safety Code section 1522 precludes licensure for persons convicted of any crime other than a minor traffic offense.
Father suggests that the Department was required to prove, as a matter of law, that A.J. and R.J. would be unable to obtain exemptions, and that without such proof, the court was precluded from considering A.J. and R.J.’s offenses in determining detriment under section 361.2. We disagree. The disqualifying factor was not that the two women could not obtain exemptions; it was that they had not obtained exemptions. (See § 361.4, subd. (d)(2); Health & Saf. Code, § 1522.) Requiring proof that they could not obtain exemptions would have been a mere academic exercise, as the court had no jurisdiction to place the child with A.J. and R.J. until and unless exemptions were obtained. (See Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 126 Cal.App.4th at p. 152; Valerie A., supra, 87 Cal.App.4th at pp. 1165-1166.) Appellate courts do not review issues that are only of academic importance. (In re Esperanza C., supra, 165 Cal.App.4th at p. 1054.)
Father contends that robbery was the only nonwaivable offense among A.J. and R.J.’s crimes, and that the criminal record before the court showed there was no robbery conviction, but rather a juvenile adjudication under section 602. In light of the undisputed fact that no exemptions had been obtained for the remaining felony convictions, this is irrelevant.
Nor does the court have authority to override the Department’s decision to deny an exemption by ordering the placement, but it may, pursuant to a section 388 petition, review the Department’s discretion in refusing to seek an exemption or in denying an exemption. (In re Esperanza C., supra, 165 Cal.App.4th at pp. 1049, 1050, 1058.)
Father contends that Valerie A., supra,87 Cal.App.4th 1161, is distinguishable because there, the minor had been removed from an offending parent’s custody and placed with a relative. Just as there is no language in section 361.4 that would limit its application to the relatives of the offending parent, there is no language in Valerie A. that can be construed as creating an exception to section 361.4 for the relatives of a nonoffending parent. This court may not read a nonexistent exception into the statute. (Valerie A., supra,87 Cal.App.4th at p. 1168 [“The general ‘best interest of the child’ standard cannot supplant the specific prohibition in section 361.4”]; see also Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at pp. 1119-1120 [express, unambiguous statutory language is conclusive].)
Father does not attempt to distinguish Los Angeles County Dept. of Children & Family Services v. Superior Court, which also held that the juvenile court has no jurisdiction to exempt criminal disqualifications. (See Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 126 Cal.App.4th at p. 152.)
Father suggests that DCFS is at fault for the present state of the proceedings, because it created the circumstances upon which it now relies to justify affirming the judgment. Father cites In re Lauren Z. (2008) 158 Cal.App.4th 1102, where the dissenting justice advocated an exception to Meranda’s waiver rule where the Department’s delays in approving a relative’s home caused the relative to become a stranger to the child, and the child had, in the meantime, bonded too well with the prospective adoptive parents to separate them without emotional harm. (See In re Lauren Z., supra, at pp. 1117-1119 (dis. opn. of Rothschild, J.).)
Father’s contention rests not on circumstances created by the Department, but on allegations unsupported by the record. He claims the Department was at fault because it erroneously reported to the court that A.J. and R.J. had nonexemptible convictions. However, the CSW did not claim the relatives’ convictions were nonexemptible; rather, based on R.J.’s initial explanation that the robbery had been reduced to a misdemeanor, she advised the court that she needed additional information to seek an exemption. We find no evidence in the record suggesting that the CSW’s belief -- that a waiver of a juvenile adjudication was required -- either delayed her seeking waivers of the other convictions or caused father not to appeal the disposition order.
Respondent represents that “DCFS sought exemptions [but] the exemptions were not obtained . . . .” Respondent’s page citations to the Department’s jurisdiction/disposition report and its July 2006 interim review report do not support its representation. To the contrary, in the jurisdiction/disposition report, the CSW represented that she had requested the juvenile records from R.J. The CSW also stated: “Until the paperwork is provided DCFS does not have all the information needed to see if a waiver is appropriate.” In the interim review report, the CSW stated that she had referred R.J. for a home assessment, but was still waiting for R.J. to provide her juvenile records. There is no mention of waivers being sought or obtained for R.J.’s two additional felony convictions.
In any event, we need not carve out a new exception to Meranda’s waiver rule, because we agree with respondent that the alleged failure to make a finding of detriment for purposes of section 361.2 was harmless. In making a detriment finding under section 361.2, the juvenile court was required to consider the suitability of a noncustodial parent’s plan to place the child with relatives. (In re V.F., supra, 157 Cal.App.4th at p. 966.) Here, had father successfully sought review of the disposition order or subsequent orders on the ground that the court failed to make a detriment finding, any remand would most certainly have resulted in a finding of detriment by clear and convincing evidence, because the legislature has determined that placing a minor in the home of a person convicted of a crime (other than a minor traffic offense) is detrimental to the child. (§ 361.4, subd. (d)(2); Health & Saf. Code, § 1522.) As noted, the court was without authority to place D.B., Jr. with A.J. and R.J., both of whom had felony convictions. (See Los Angeles County Dept. of Children & Family Services v. Superior Court, supra, 126 Cal.App.4th at p. 152 [juvenile court has no authority to waive a disqualifying criminal conviction]; Valerie A., supra, 87 Cal.App.4th at pp. 1165-1166 [same].)
In his post-argument brief, father represents that A.J. ultimately obtained an exemption and moved into a home separate from R.J.’s, so that she would qualify as D.B., Jr.’s caretaker. Father’s representation raises no issue on appeal, because “facts, events, documents or other matters . . . not admitted into evidence cannot be included in the record on appeal and are outside [the] scope of review.” (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 815.) We also disregard respondent’s reference to matters outside the record.
Because the alleged error was harmless, we conclude that father could derive no benefit from appellate review; thus, as father did not raise the issue in an appeal from the disposition order or other orders denying placement with his relatives, he has not preserved it for review. (Meranda, supra, 56 Cal.App.4th at pp. 1150-1152; Janee, supra,74 Cal.App.4th at pp. 208-209.)
d. Due Process and Communication with Counsel
Father also claims that his counsel’s errors fell outside the waiver rule because he was unable to communicate with his new attorney prior to the section 366.26 hearing, at which his parental rights were terminated. Thus, he contends, he was deprived of any reasonable way to remedy the court’s errors. The record does not support this contention. It was father’s choice not to appear personally in court after the jurisdiction/disposition hearing, although he had notice of the hearings. His counsel, Mr. Davis, represented to the court on August 14, 2006, that father wanted D.B., Jr. placed with paternal relatives, suggesting that Davis had communicated with him. Further, Davis told the court that father had communicated with him by letter; thus, father knew how to direct a letter to his attorney. When Davis appeared at the December 2006 review hearing, he did not claim that he had been unable to communicate with father. Father’s new counsel, Mr. Howell, first appeared on father’s behalf June 7, 2007, and told the court that he had not heard from father, but did not represent that there existed some impediment to their communication. Howell practiced in the same firm as Davis, and Howell said nothing at the August 2007 hearing that would suggest father lacked the ability to communicate with him or Davis. It was not until the section 366.26 hearing on November 13, 2007, that Howell told the court he had not communicated with father since taking over the case. Howell’s letter to father had been returned by the prison, but he did not know why. Thus, the evidence shows only that father did not communicate with counsel. It does not show that father was unable to do so.
In any event, it was father’s responsibility, not counsel’s, to express his concerns regarding communication or counsel’s performance in a writ petition prior to the section 366.26 hearing. (Janee, supra, 74 Cal.App.4th at pp. 207, 210.) “A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. . . .” (§366.26, subd. (l)(3)(A).) The required advisement includes the forms necessary to start the writ process, including a “Notice of Intent to File Writ Petition. . . .” (Cal. Rules of Court, rule 5.600(b).) Father’s failure to sign and return the form to the court could be excused only if he had not been given notice of his right to seek writ relief. (Janee, supra, 74 Cal.App.4th at p. 210.) On August 6, 2007, Howell represented to the court that writ information had been served on father, and father does not claim that he did not receive such notice. Thus, father was not without a remedy, as he now contends, and counsel’s alleged errors did not fundamentally undermine the statutory scheme such that father was denied its protections as a whole. (Id. at pp. 208-209.)
In sum, both father and his counsel were present at the disposition hearing on June 8, 2006, and father thus had the ability to communicate with him at the time an appeal was required to preserve review of the findings and orders regarding jurisdiction, custody and reunification made on or before that date. Later, after the section 366.22 hearing held August 6, 2007, father had the ability and the responsibility to sign and return to the court the form stating his intent to file a petition for extraordinary writ review. (See Janee, supra, 74 Cal.App.4th at pp. 207, 210.) Finally, as the required detriment findings as to father were made prior to the eventual termination of his parental rights, father has not established a violation under Santosky, supra, 455 U.S. at page 760. (See P.A., supra, 155 Cal.App.4th at pp. 1211-1212.) Thus, father has not shown fundamental unfairness in the proceedings that would preclude application of the waiver rule, and we conclude that father has forfeited review of his contentions regarding all findings and orders made prior to the section 366.26 hearing of November 13, 2007. (See Janee, supra, 74 Cal.App.4th at pp. 208-209.)
3. Denial of Request to Continue
Father contends that the court abused its discretion in denying his attorney’s request for a brief continuance of the section 366.26 hearing, to allow him to communicate with father. Father claims the court’s refusal to grant a continuance resulted in ineffective assistance of counsel.
“Upon request of counsel for the parent . . ., the court may continue any hearing . . ., provided that no continuance shall be granted that is contrary to the interest of the minor. . . . [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . .” (§ 352, subd. (a).)
Father was not present, and father’s counsel made no offer of proof at the section 366.26 hearing for which he orally requested a continuance. Counsel stated: “I attempted to send the father a letter after [the] last hearing. That letter was returned. I gave it to my investigator to determine why it had been returned. It was delayed for some time in getting back to me. So I’ve had no communication with my client with regards to this matter. . . . I . . . request a continuance to allow me to have the time to get some response from my client.”
The court pointed out that father had been given proper notice, and had sent the caseworker a waiver of his appearance, demonstrating that he did not wish to be in court. Howell confirmed that father had communicated with prior counsel, Mr. Davis, who was in the same law firm. The court observed: “So he knows how to reach the worker, knows how to reach [counsel]. If he chooses not to come or participate -- and he has indicated that by his signed waiver -- there is no good cause for a continuance.”
“Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion. [Citation.]” (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Under circumstances similar to this case, it was held that where the sole reason given for the requested continuance was to allow counsel to speak to parents who had been afforded notice and had the ability to communicate, good cause was not shown. (See In re J. I. (2003) 108 Cal.App.4th 903, 912.) Here too, the court properly found that good cause was not shown, because father had received notice of the hearing and knew how to communicate with counsel and the CSW, as he had done so in the past.
Father points to inferences that may be drawn from the record, suggesting that he did not know he was represented by counsel, because he checked the box on his waiver of appearance form stating, “I request that an attorney be appointed to represent me and to appear for me at the hearing,” instead of the box stating, “I authorize my attorney of record to represent me . . . .” The reviewing court may not reject reasonable inferences drawn by the trial court: “‘When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at p. 319.) As father had communicated with counsel in the past, the court reasonably inferred that he had chosen not to do so on this occasion, and we decline to substitute a different inference based upon conjecture as to why the wrong box was checked.
Moreover, father has not shown that he was prejudiced by the denial. To show prejudice, father must show that a more favorable result was probable had the matter been continued. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.) Father contends that Howell would have been able to investigate the reasons that Davis had not timely sought review of the detriment findings at the disposition hearing, and why he failed to file section 388 petitions, among other things. As respondent notes, Howell and Davis were both members of the same law firm, and Howell might simply have asked Davis these questions. Howell made no representation to the court that he needed a continuance to confer with Davis, or that he had not done so. Further, there was no representation or evidence that father ever instructed his attorney to contest the disposition or even the termination of his parental rights, or that he would have done so had Howell’s letter reached him.
We conclude there was no abuse of discretion in denying father’s request for a continuance, and no showing that a different result would have occurred had a continuance been granted.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.
“THE COURT: Counsel, I’m advised that the minute order for [June 8] is incorrect. When it says we’re here for a hearing regarding offering reunification services to father, it is supposed to be for mother. So we need to correct that, the court did not order reunification services for the father. Mr. Brussel [DCFS counsel] tells the court that was because his incarceration [release] date isn’t until 2010. I don’t have a recollection, but clearly we’re here with the mother for reunification, not the father. Is that your recollection, Mr. Davis [counsel for father]?
“MR. DAVIS: Yes.”