Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ct. Nos. J209605 & J209606 Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
OPINION
McKinster, Acting P.J.
A.W. appeals an order terminating her parental rights to her daughters, D.M. and T.G., and ordering the children placed for adoption. She contends that termination of her parental rights was foreclosed by operation of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), the so-called beneficial parental relationship exception, because the “amount and quality of visitation” she was afforded was inappropriately limited.
All further statutory citations refer to the Welfare and Institutions Code.
To the extent that A.W.’s contentions were previously determined in prior proceedings in this court, they are governed by law of the case. As to any issues not previously addressed in appellate proceedings, review is forfeited by A.W.’s failure to raise them in the section 366.26 hearing. Consequently, we will affirm the judgment.
BACKGROUND
In September 2006, D.M. and T.G. were made dependents of the juvenile court based on the court’s findings that A.W. had physically abused T.G., including kicking her and hitting her with her fists, a belt, a stick and a hanger, causing bruising and injury; that A.W. knew that T.G. had been physically abused by friends and relatives of A.W. but had done nothing to protect her; that D.M. was at risk of similar abuse; that T.G. had been sexually molested by a male houseguest and that A.W. knew of the incident but failed to believe T.G. and accused her of lying; that D.M. was at risk for similar abuse; that both children had often been left alone without supervision; that A.W. had a substance abuse problem which resulted in her being unable or unwilling to provide care, nurture and support for the children; that A.W. engaged in sales of illegal drugs; that the father of D.M. was currently incarcerated for burglary, robbery and murder and was unable to provide care and support for her; that the father of T.G. was incarcerated for an extended period of time and was unable to provide care and support for her. (§ 300, subds. (a), (b), (d), (g), (j).)
The court ordered no reunification services for either father, finding that reunification would be detrimental to the children. The court ordered services for A.W., including attending programs in anger management, domestic violence, parenting education, substance abuse counseling and drug testing.
By the six-month review hearing, A.W. had completed her programs. All of her drug tests were negative. However, the social worker disagreed with A.W.’s therapist that A.W. had successfully addressed necessary issues. The social worker and her supervisor both felt that A.W. “talked the talk” about having learned appropriate parenting skills but did not yet “walk the walk,” in that she remained self-centered and had little insight into or empathy with her children’s feelings. The children had repeatedly expressed to the social worker that they were afraid of A.W. They did not want to return home because they were afraid that A.W. would hurt them. At the review hearing, A.W. acknowledged that she had been told that T.G. was afraid of her, but apparently could not understand how her past actions could have left the children wary of her or why the children might, based on their past experiences, interpret some of A.W.’s recent statements and conduct differently than A.W. did. She did not believe that the children were afraid of her.
The social worker acknowledged that A.W. had made progress, however, and she recommended a further six months of reunification services. She felt that it was imperative that A.W. engage in conjoint therapy with the children, to address the children’s issues, before they could safely be returned to her custody. She also felt that A.W. needed additional individual counseling.
The court found that reasonable reunification services had been offered to A.W., but that because A.W. had made only “moderate to substantial” progress toward mitigating or alleviating the causes which necessitated placement, the children could not yet safely be returned home. It found a reasonable probability that the children would be returned to A.W.’s custody within six months. It ordered further family reunification services for A.W. and referred A.W. and the children for conjoint counseling.
A.W. appealed that order. (See In re D.M. (Mar 13, 2008, E043081) [nonpub. opn.].) In that appeal, she argued that the court’s finding that reasonable services had been provided to her was not supported by substantial evidence. We agreed that it was at least arguable that the services provided were not reasonable, but concluded that reversal was not required because the juvenile court had not terminated services but had instead ordered an additional six months of services. (Id. [at pp. 6-11].) There was no other remedy that we could have provided. (See In re Alvin R. (2003) 108 Cal.App.4th 962, 973-974.) Accordingly, any error was not prejudicial.
The November 9, 2007, status review report reflects that on the day the six-month review hearing concluded, A.W. left a message for the social worker that she was “‘giving the girls up for adoption’ and she wanted to waive reunification services . . . [and] ‘move on.’” The next day the Department of Children’s Services (DCS) sent A.W. forms for waiving reunification services, but the forms were never returned. On May 24, 2007, the social worker telephoned A.W. and asked if she was interested in visiting with the children. A.W. told the social worker that she was not interested in visitation and “that she needed to take some time for herself.”
On July 30, 2007, A.W. contacted the social worker and requested visitation with T.G. and D.M. On August 6, 2007, the social worker provided A.W. with a new service plan, referrals for therapy, and information regarding joint therapy with her children and Dr. Hunt. A.W. began individual therapy with Dr. Bresolin on September 3, 2007. In September, A.W. began joint therapy with her children and Dr. Hunt. The joint therapy sessions were interrupted around November, due to a death in Dr. Hunt’s family. The report reflects that T.G. and D.M. were still expressing a desire to stay permanently with D.M.’s stepmother and not return to A.W.’s custody. They were afraid of being hurt if they returned to her custody. After the first visit, however, the children reported that it went better than they expected. Nevertheless, after visitation resumed, the children reported having nightmares and having difficulty concentrating in school. DCS recommended that A.W. receive six more months of services, since she had just recently begun to participate in services after taking time for herself.
At a hearing on November 27, 2007, after realizing that January 27, 2008, would be the date for the permanency hearing (§ 366.22) and that there was not a substantial probability that the minors could be returned to A.W.’s care by that date, DCS stated that it could not recommend that services for A.W. be continued, because “[A.W.] lapsed on her own accord . . . for a significant amount of time.”
In an addendum status report, dated December 18, 2007, several updates were noted regarding services. First, during a joint therapy session, T.G. overheard a conversation wherein A.W. asked Dr. Hunt for a letter explaining that the therapy sessions had been interrupted due to the death in his family, rather than due to the fault of A.W. or the children. The children misinterpreted the conversation as Dr. Hunt siding with A.W. T.G. said, “I thought he was supposed to be on our side?” As a result, on November 5, 2007, DCS submitted a request for the joint therapy sessions to be transferred to the Center for Healing Childhood Trauma, because Dr. Hunt stated that he would need to terminate the joint sessions if they interfered with his individual counseling of T.G. and D.M.
Second, Dr. Bresolin requested more individual therapy sessions for A.W., and stated that her wish for A.W. would be for therapy to continue for an extended period of time. DCS approved 12 more sessions for A.W.
Third, on November 15, 2007, at a visitation appointment, D.M. informed the social worker that she did not want to visit with A.W. any longer. The employee encouraged D.M. to tell A.W. how she felt, but D.M. said she was afraid. The employee offered to tell A.W. on behalf of D.M., and D.M. agreed to the offer. The employee told A.W. that D.M. no longer wanted to visit. A.W. became defensive and said, “I’ll be here next week and you can’t hurt my feelings.” T.G. then told the social worker, “This is why I was crying at school all day.” The social worker suggested that T.G. share that with A.W., which T.G. did. A.W. accused the social worker of being unprofessional. A.W. said to T.G., “I never did anything to you. This has been hard on me, hard on you, hard on everyone. I’m just gonna keep doing what I’m doing. I’ll be here next week and the week after that. You can’t hurt my feelings.” T.G. began crying, and the social worker ended the visit.
At the review hearing on January 28, 2008, the court found that the services that were offered to A.W. were reasonable; that A.W. failed to make substantive progress in her treatment plan; that returning the children to A.W. would be detrimental; and that there was not a substantial probability that the children would be returned to A.W. within the statutory timeframe. The court terminated A.W.’s reunification services and set the matter for a hearing to terminate parental rights, pursuant to section 366.26. The court also suspended visitation, finding that it would be detrimental to the children. The court found that the children were still afraid of A.W.
A.W. filed a petition for extraordinary writ relief pursuant to section 366.26, subdivision (l). (A[.]W. v. Superior Court (May 12, 2008, E045020) [nonpub. opn.].) In her petition, she challenged the finding that reasonable services had been provided. She contended because she was not given sufficient joint therapy sessions, the joint therapy services were not reasonable. We disagreed, finding that the services provided were reasonable. (Id. [at pp. 13-14].) She also contended that visitation services were not reasonable because the social worker sabotaged her visitation by encouraging the children to tell her that they no longer wished to visit with her. Again, we disagreed, finding that visitation services were reasonable. (Id. [at pp. 14-15].) We denied the petition. (Id. [at p. 17].)
Section 366.26, subdivision (l) provides that an order setting a hearing pursuant to section 366.26 is not appealable unless the parent files a petition for extraordinary writ review.
A.W. was notified of the section 366.26 hearing scheduled for February 27, 2008. Despite the notice that her parental rights might be terminated, A.W. did not attend the hearing. Through her attorney, A.W. requested a lesser permanent plan, such as guardianship or a planned permanent living arrangement. She did not present any evidence or argument in support of her request.
The children had been in a preadoptive home with D.M.’s stepmother since December 2006. Both girls called her “mother” and wanted to be adopted. The court found by clear and convincing evidence that it was likely that the children would be adopted. It selected adoption as their permanent plan. It terminated the parental rights of A.W. and of the girls’ fathers.
A.W. filed a timely notice of appeal.
The notice of appeal states that A.W. appealed not only from the order terminating her parental rights but also from an order pursuant to section 366.28 made on March 17, 2008. No such order appears in the record, and A.W. had not raised any issue pertaining to such an order in her briefs.
LEGAL ANALYSIS
APPELLATE REVIEW IS BARRED BY THE DOCTRINE OF LAW OF THE CASE AND BY A.W.’S FAILURE TO ASSERT BELOW THE ISSUE SHE NOW SEEKS TO RAISE ON APPEAL
A.W. contends that the court “was foreclosed from terminating parental rights based on its finding that the parent-child relationship exception under . . . section 366.26[, subdivision] (c)(1)(B)(i), did not apply because the amount and quality of visitation afforded the mother and the minors was inappropriately limited.” She relies on In re Hunter S. (2006) 142 Cal.App.4th 1497, which holds that a juvenile court must enforce visitation ordered as part of reunification services before it may terminate parental rights. (Id. at pp. 1504-1508.) In part, the court held that failing to enforce an order for visitation is prejudicial error because it prevents the parent from laying a foundation “to establish the pivotal ‘best interests’ prong of the essential beneficial relationship exception” of former section 366.26, subdivision (c)(1)(A), now subdivision (c)(1)(B)(i). (In re Hunter S., supra, at p. 1508.)
Section 366.26, subdivision (c)(1)(B) provides in pertinent part that the court may decline to terminate parental rights if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
DCS contends that A.W.’s argument is precluded by the doctrine of law of the case because the issue of the reasonableness of visitation was decided in our prior opinion in A[.]W. v. Superior Court, supra,E045020.
“The law of the case doctrine states that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . ., and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’ [Citations.]” (Kowis v. Howard (1992) 3 Cal.4th 888, 893, fn. omitted.) The doctrine applies to decisions of intermediate appellate courts as well as courts of last resort. (People v. Shuey (1975) 13 Cal.3d 835, 841.) The doctrine applies to a prior writ proceeding, where the review of the matter “necessarily includes a consideration of and ruling upon the merits of the petition.” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260, fn. omitted.) Because the doctrine of law of the case promotes finality by preventing relitigation of issues previously decided (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1291), it does not apply to points of law which “might have been, but were not” decided in the prior appeal. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 302.) However, it does extend to questions that were implicitly determined because they were essential to the prior decision. (Estate of Horman (1971) 5 Cal.3d 62, 73 (Horman).)
DCS characterizes A.W.’s argument as a challenge to the order made at the 12-month review hearing suspending visitation. DCS contends that although A.W.’s writ petition, filed after that proceeding pursuant to section 366.26, subdivision (l), did not explicitly challenge the validity of the order terminating visitation, her petition did implicitly challenge that order by complaining that visitation was inadequate. DCS contends, therefore, that we have already addressed that contention in our decision in the writ proceeding, by finding that visitation was adequate.
DCS is correct in part. Although the basis for A.W.’s claim is not entirely clear to us, she seems to argue, in part, that she was not afforded adequate visitation during the reunification process. She states that she was afforded only four conjoint therapy sessions before the court terminated reunification services at the 12-month review hearing, and that “[t]he social worker effectively drove a spike through the heart of any possibility of conjoint therapy visitation being successful or effective by encouraging these very young minors, without the support of their therapist, to tell the mother that they did not want to visit her.” As DCS points out, the adequacy of these reunification services—visitation and conjoint therapy—was addressed in our opinion in A[.]W. v. Superior Court, supra, E045020. (Id. [at pp. 13-16].) Consequently, A.W. may not seek further review of any contention based on the adequacy of those services.
It appears, however, that A.W.’s argument also rests on the premise that the juvenile court abused its discretion at the 12-month hearing by denying continued visitation. She refers to the fact that the juvenile court terminated “conjoint therapeutic visitation” at the 12-month hearing stage and notes that the court had the discretion to continue such “therapeutic visits” for an additional six months. She states that this would have given her and the children a fair opportunity to heal their relationships. That issue was not addressed in our opinion in the writ proceeding. As noted above, DCS contends that the issue was implicit in A.W.’s writ petition. We disagree.
When a juvenile court sets a hearing on termination of parental rights pursuant to section 366.26, it is required to order the termination of reunification services. However, it must also continue to permit the parent to visit the child pending the section 366.26 hearing, unless it finds that visitation would be detrimental to the child. (§§ 366.21, subd. (h), 366.22, subd. (a).) It does not follow, however, that the court’s exercise of discretion in denying visitation pending the section 366.26 hearing is a question that is necessarily before the court in deciding a writ petition challenging the order setting the section 366.26 hearing, for purposes of the law of the case doctrine. In order for the doctrine to apply to an issue which was not explicitly raised and decided in the prior appellate proceeding, the issue must be essential to the prior decision. (Horman, supra, 5 Cal.3d at p. 73.) At issue in the writ petition filed pursuant to section 366.26, subdivision (l) is the propriety of the order setting the section 366.26 hearing. (See, e.g., In re Charmice G. (1998) 66 Cal.App.4th 659, 667-668.) The decision to permit or to deny continued visitation pending the section 366.26 hearing is not an issue which underlies the decision to set the section 366.26 hearing or which has any bearing on that decision; rather, it is a consequence of the court’s decision to set the section 366.26 hearing. Accordingly, it is not an issue which is essential to the resolution of the writ petition for purposes of the doctrine of law of the case. (Horman,at p. 73.) Consequently, because the issue was not actually raised in A.W.’s writ petition and was not addressed in our prior opinion, law of the case does not apply.
Appellate review is nevertheless foreclosed, however. In dependency litigation, nonjurisdictional issues must be raised in the trial court in order to preserve them for appellate review; they may not be raised for the first time on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) At the section 366.26 hearing, A.W. neither attempted to assert the beneficial parental relationship exception nor contended that she was precluded from doing so because the court abused its discretion in denying her continued visitation pending the termination hearing. Consequently, she has forfeited her right to appellate review of that issue.
Finally, A.W. makes various assertions about the “agenda” of the children’s prospective adoptive mother and states that the prospective adoptive mother did not support her right to visitation. The relevance of these assertions to the issue A.W. raises is not clear, however, and we see no need to address them.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: Richli, J., King, J.