Opinion
H043522
11-30-2017
In re Y.L., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. N.L. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. J47571)
Mother V.M. and father N.L. appeal from an order entered after a post permanent plan review hearing that occurred over two years after the juvenile court declared minor Y.L. a dependent of the court due to neglect and sexual abuse. (Welf. & Inst. Code, § 300, subds. (b), (d). All statutory references are to this Code.) Parents' appellate arguments focus primarily on the juvenile court's refusal to consider a section 388 petition they filed pro se while they were represented by counsel. Parents argue that the juvenile court deprived them of their federal constitutional rights to substantive due process and a fair trial, and erred by not deciding the section 388 petition and by denying visitation. Parents also argue their attorneys in the juvenile court provided ineffective assistance by not pressing for a decision on the pro se petition and by not demanding greater investigation after minor recanted her sexual abuse allegations. Parents blame the juvenile court and respondent Monterey County Department of Social Services (Department) for not returning minor to parents' care, but it appears from the record that parents' refusal to meaningfully participate in the dependency proceedings is the primary reason that minor remains a dependent of the juvenile court. For the reasons stated here, we will affirm the order after judgment.
Mother's and Father's appellate counsel each filed a petition for writ of habeas corpus, alleging ineffective assistance of their juvenile court attorneys. We dispose of the habeas petitions by separate orders filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. JUVENILE COURT PROCEEDINGS
A. CONDUCT LEADING TO DEPENDENCY PETITION
According to the Department's section 300 petition (as amended by statements in the jurisdiction and disposition report), mother was arrested during a traffic stop in October 2013 after law enforcement found methamphetamine in the car she was driving. Minor (born in 2000) and her younger brother went to live with their 18-year-old sister. When parents arrived to pick them up from the sister, minor refused to go with them. Minor told her sister that father had been sexually abusing her, the sister reported minor's statements to law enforcement, and the sisters participated in separate forensic interviews. Minor's sister told the interviewer that father had raped her once, and had frequently touched her inappropriately until she moved out of the family home. Minor told the interviewer that father had been sexually abusing her since she was 11 years old. Father would make vulgar remarks, put minor's hand on his lap, and tried to make her touch his penis.
The Department filed a section 300 petition in December 2013, alleging a failure to protect minor (§ 300, subd. (b)), and sexual abuse by father (§ 300, subd. (d)). Parents contacted the Department a few days after the initial detention hearing through an attorney they retained to jointly represent them.
B. JURISDICTION AND DISPOSITION REPORT AND HEARING
The Department's jurisdiction and disposition report added details about the conduct leading to the dependency petition. Law enforcement found five ounces of methamphetamine in the car mother was driving the day she was arrested. Minor reported that father sold marijuana and methamphetamine. When contacted by the Department, parents demanded that the social worker allow them to speak with minor. The social worker informed them that minor did not want to speak with them. Parents told the social worker to force minor to speak with them, and the social worker refused. Parents' attorney reported that the drug charges against mother had been dropped, and a criminal record check disclosed that father had two misdemeanor convictions.
A psychologist had attempted to conduct a family mental health assessment, but the assessment ultimately involved only minor because mother did not return multiple phone calls and father was in Mexico. Minor displayed moderate distress during the clinical interview, and the psychologist determined that minor's behavior "indicated a clinical level of depressive symptomatology." The psychologist reported that minor was having a " 'very hard time' " with mother's decision to side with father.
Parents denied the abuse allegations, took no responsibility for what had occurred, and blamed minor's older sister for allegedly persuading minor to make up lies about parents. Father had refused to meet with law enforcement to discuss the sexual abuse allegations and had relocated to Mexico in what the Department believed was an attempt to evade investigation. The Department recommended declaring minor a dependent of the juvenile court and continuing minor's placement in foster care. Before any visitation with parents, the Department recommended that parents participate in a family mental health assessment.
At the jurisdiction and disposition hearing in January 2014, mother appeared with parents' privately-retained attorney. The attorney confirmed that parents had waived any potential conflict from the dual representation. When the court asked if the attorney had any comments on the jurisdiction and disposition report, he responded: "Submitted, Your Honor." The court then addressed mother directly to ask if she had anything to "add or say at this point," and she responded: "Not for now. Everything is fine." The court adopted the findings recommended by the Department, which included declaring minor a dependent and ordering family reunification services be provided to both parents.
C. SIX-MONTH REVIEW - REUNIFICATION SERVICES TERMINATED
The six-month review report stated that parents had done nothing required of them by the case plan. The Department believed both parents were in Mexico. Other than one contact from father, neither parent had contacted the Department since the previous hearing. Minor expressed an interest in living with her older sister, and made clear that she did not want to live with parents. Minor was doing well in school, adjusting well to her foster care placement, and was attending individual therapy. Her therapist reported that minor had explored "some of the sexual abuse she experienced at the hand of her father, but she has minimized it." In light of parents' total failure to participate, the Department recommended terminating reunification services and setting the case for a section 366.26 selection and implementation hearing. Neither parent attended the six-month review hearing. A different attorney appeared specially for parents' attorney (parents' attorney had informed the court that an emergency had arisen in San Francisco). The attorney stated that parents' attorney's position was to defer to the court. The juvenile court terminated family reunification services and set the matter for a section 366.26 hearing.
D. SECTION 366.26 SELECTION AND IMPLEMENTATION HEARING
Neither parents nor their attorney appeared at the section 366.26 hearing. The Department's section 366.26 report noted that minor did not want to have any contact with her parents. Minor wanted to remain with her current foster mother until she could move in with her older sister. Parents had not contacted the Department. The Department recommended a permanent plan of long term foster care, with a specific goal of legal guardianship by minor's older sister once she was able to secure suitable housing. The court adopted the Department's recommendations. The matter was scheduled for an administrative review in six months. (That administrative review occurred out of court. Parents did not attend.)
E. FIRST POST PERMANENT PLAN REVIEW HEARING
The first section 366.3 status review report noted that minor had recanted her sexual abuse allegations during a therapy session in May 2015. The social worker believed that minor had recanted "at the urging of her parents" and her older sister. Minor's phone had been confiscated and minor had been forbidden from talking to her parents on the phone "due to inappropriate phone calls (numerous [calls] and the mother suggesting that [minor] say that she is suicidal to get out of foster care)." Following the recantation, the Department held a family team meeting with parents and their attorney. Parents' attorney demanded minor be returned in light of the recantation, and stated the Department had a moral and legal obligation to investigate. Parents were urged to complete a family mental health assessment, and the Department agreed to follow any recommendations in the assessment. Parents refused to complete the assessment. The Department recommended continuing to prohibit visitation between minor and parents until parents completed the assessment to protect minor from "her family's coercion and influence to recant the allegation of sexual misconduct."
Both parents and their attorney appeared at the section 366.3 hearing. When the juvenile court asked about the status of the family mental health assessment, a social worker stated that a doctor had contacted the family about scheduling the assessment and had been told by parents "depending on how the court hearing goes, they will call him back [regarding] whether or not they were interested in completing an assessment." Parents' attorney asked for visitation at the section 366.3 hearing, which the Department opposed because of parents' lack of involvement and because parents had been having unauthorized unsupervised contact with minor. The Department's counsel stated that once parents completed the assessment, the topic of visitation could be addressed again. The court continued the matter so that it could review the assessment once it was completed.
F. FAMILY MENTAL HEALTH ASSESSMENT
Parents and minor participated in a family mental health assessment in November 2015. A psychologist individually interviewed mother, father, and minor. The psychologist observed that mother blamed minor's sister's boyfriend and the "apathy" of the Department for her family's suffering. Mother appeared to waive off any implication that she might "share responsibility for current family growth and change." Father similarly placed the blame for his family's problems on minor's sister's boyfriend. Both parents expected that minor would be returned to them at the next hearing. The psychologist explained that minor's immediate return was unlikely, and that the most realistic opportunity to regain custody was to request and participate in family reunification services.
The psychologist described minor as intelligent, depressed, defensive, and uncomfortable. She offered "no spontaneous, unrehearsed information." Her affect alternated between flat and "sobbing with free-flowing tears." Minor stated that the sex abuse allegations against father were lies compelled by her sister's boyfriend. Diagnostic test results suggested clinically significant levels of anxiety and depression. The psychologist opined that minor "suffers acutely from the perception that her sexual abuse allegation against Father is responsible for causing her entire family great pain." While minor had recently redirected her sexual abuse allegations from father to her sister's boyfriend, the psychologist noted that all "professionals familiar with the case over the last two years expressed certainty that [minor] experienced sexual abuse."
A visit between minor and mother supervised by the psychologist went well, with minor and mother sitting close together and reaching out to touch each other appropriately. The psychologist recommended that minor participate in individual therapy, and also recommended supervised visitation with mother and other family members "[w]hen it is clear that visits with Mother have no lasting negative effects" on minor.
G. PRO SE SECTION 388 PETITION
Although they were represented by counsel at the time, parents filed multiple documents pro se in December 2015, including a "petition for relief per section 388." (Capitalization omitted.) Parents argued in the pro se petition that the Department had failed to adequately investigate minor's recantation. Parents requested "the immediate return of [their] child," or an explanation by the Department of why "it believes reunification is improper." (Bold omitted.)
H. CONTINUED POST PERMANENT PLAN HEARINGS
At a continued post permanent plan review hearing in January 2016, neither parents nor their attorney appeared. The court noted that the family mental health assessment had been filed. Minor's counsel pointed out that parents had filed several documents pro se (including the pro se section 388 petition) despite being represented by counsel. The court noted that such filings were improper, and stated it was "really surprised [parents] are not here." The court noted a substitution of attorneys had been filed for parents, appointed a new attorney for each parent, and continued the matter for three months. Parents' new attorneys were instructed to "make it clear to their clients that they cannot file paperwork on their own behalf."
At the next hearing, the court asked father's counsel to verify that there had not "been any JV-180s [form Request to Change Court Order] that have formally been filed." Father's counsel agreed. Counsel noted that parents had filed the pro se section 388 petition, but that the petition was inadequate because it was not filed on the proper form and there was a "lack of a sufficiency of what would be required in a 388." Counsel stated it "may be appropriate in the near future for me to file a 388," but that "for the time being, I think the permanent plan review stands as it is." The court advised mother and father to "listen to [your] lawyers, take their advice, and listen to their advice." Father responded: "I want to have him removed starting now. I want to take care of this case on my own." The court repeated its admonition that father work with his appointed counsel, and continued the matter.
At a hearing a few weeks later, father's appointed attorney informed the court that father had come to his office and made it "abundantly clear to me that he did not want my services." Father asked the court if he could represent himself for a while "to see if it is possible to represent myself in this hearing, see how it goes, and maybe later assign an attorney." Based on father's statement that his formal education consisted of three years of elementary school, the court denied father's request to represent himself and appointed a new attorney to represent him. The court admonished father once again that he was not allowed to file documents pro se. The Department raised one other issue: minor had discovered a lump in her breast requiring a biopsy, but parents had refused to sign a consent form "unless the child is returned." The court indicated it would authorize the surgery and continued the matter, stating that at the next hearing it would rule on the permanency review "notwithstanding regarding [sic] a 388 petition, if the Court decides to move forward on that."
I. HEARING LEADING TO THIS APPEAL
Both parents attended the April 2016 post permanent plan review hearing leading to this appeal, represented by their appointed attorneys. The court approved the permanent plan of long term foster care with the specific goal of legal guardianship by minor's current foster mother. The court approved the case plan submitted by the Department, including restricted visitation as follows: "There shall be no visitation between the [mother or father] and the child until the Department determines that visitation would be safe for the child or until further order of the court." There was no reference to a section 388 petition at the hearing.
J. REUNIFICATION SERVICES REINSTATED DURING APPEAL
We augmented the appellate record on our own motion to include developments in the dependency proceedings that occurred while this appeal was pending. Counsel for parents filed section 388 petitions in November 2016 requesting that minor be returned to parents' custody, or alternatively that family reunification services be reinstated. The juvenile court granted those petitions in part, ordering that parents receive family reunification services. An updated case plan states that both parents "may have visitation with the child in accordance with the case plan."
II. DISCUSSION
We separate parents' appellate arguments into four categories: the juvenile court's treatment of the pro se section 388 petition parents filed while represented by counsel (and the effectiveness of parents' attorneys' assistance related to that filing); effectiveness of parents' attorneys' assistance in instructing the Department to investigate minor's recantation; whether parents' federal constitutional due process rights were violated; and the propriety of the April 2016 order suspending visitation. Parents join each other's appellate arguments. Before addressing the merits of those arguments, we must determine whether they are within the scope of the order appealed from and also whether subsequent juvenile court orders moot any of the arguments.
A. SCOPE OF THE APPEAL
Parents each filed a notice of appeal referencing the order entered after the April 2016 post permanent plan review hearing. But with the exception of parents' challenge to the visitation aspect of that order, parents' appellate arguments have nothing to do with the post permanent plan. Instead, most of parents' appellate arguments focus on the juvenile court's actions related to the pro se section 388 petition filed months before the order referenced in parents' notices of appeal. We requested supplemental briefing regarding the timeliness and reviewability of the issues parents raise on appeal. Parents argue that the juvenile court never took action on the pro se petition, and ask that we liberally construe their notices of appeal to include their appellate arguments. The Department does not argue that we should deem any of parents' arguments to be outside the scope of the appeal, and instead argues that the juvenile court's order should be affirmed on the merits. We will therefore liberally construe the notices of appeal and will decide the merits of parents' appellate arguments to the extent they were preserved in the juvenile court and have not been rendered moot. (In re Joshua S. (2007) 41 Cal.4th 261, 272.)
B. MOOTNESS
In its supplemental briefing regarding the reviewability of parents' appellate arguments, the Department noted that the juvenile court had ordered that parents receive family reunification services while this appeal was pending. We augmented the appellate record to review the extra-record evidence discussed by the Department, and requested further supplemental briefing regarding mootness. "When no effective relief can be granted, an appeal is moot and will be dismissed." (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.)
Parents argue their appeals are not moot because parents sought greater relief in their pro se section 388 petition (i.e., termination of jurisdiction and minor's immediate return to parents' custody) than was provided in the later order granting family reunification services. The Department filed no further briefing. We agree that parents requested greater relief in the pro se section 388 petition than what was later provided by the juvenile court. As this court could provide effective relief on the section 388 issue, we will consider the section 388 issue on the merits.
As for parents' argument that the April 2016 order erroneously denied visitation, we note that the most recent approved case plan in the augmented record allows parents "visitation with the child in accordance with the case plan." Parents' appellate challenge to the April 2016 visitation suspension (including their ineffective assistance of counsel claim related to that order) is moot. For the same reason, parents' ineffective assistance of counsel claim related to visitation is likewise moot.
C. PARENTS' PRO SE SECTION 388 PETITION
Parents argue that the court erred by not considering or granting their pro se section 388 petition. Parents also contend their attorneys provided ineffective assistance by not requesting a decision on the pro se section 388 petition and by failing to file a procedurally proper petition.
1. Legal Principles
Section 388, subdivision (a)(1) states, in relevant part: "Any parent ... may, upon grounds of change of circumstance or new evidence, petition the court ... to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." The petition must be verified, and must "set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order or termination of jurisdiction." (Ibid.) California Rules of Court, rule 5.570 (Rule 5.570) states that while a section 388 petition "must be liberally construed in favor of its sufficiency," the petition nonetheless must include, among other things: the date and general nature of the order sought to be modified; a concise statement of the changed circumstances; and a concise statement of the proposed change of the order. (Rule 5.570(a), (a)(6)-(a)(8).) And the petition must be "made on form Request to Change Court Order (form JV-180)." (Rule 5.570(b).)
To state a prima facie case for relief under section 388, the petition must show both a change in circumstances and that the proposed change to the prior order would be in the best interest of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.); In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).) A juvenile court may summarily deny a section 388 petition if it does not state a prima facie case for relief, and the juvenile court's decision is reviewed for abuse of discretion. (Anthony W., at p. 250.) The Supreme Court has long recognized that motions "and briefs of parties represented by counsel must be filed by such counsel" unless the filings relate to the adequacy of counsel's representation. (People v. Clark (1992) 3 Cal.4th 41, 173 (Clark), abrogated on another ground as stated in People v. Edwards (2013) 57 Cal.4th 658, 704-705.) "Where the party is not permitted personally to participate in conducting the case, pro se filings by that party may be returned unfiled [citation] or, if filed, may be stricken." (People v. Harrison (2001) 92 Cal.App.4th 780, 788.)
2. Factual Background
Parents filed a pro se "petition for relief per section 388" while still represented by their privately-retained counsel. The document was not on form JV-180 and was not verified. Parents did not attend the next juvenile court hearing after they filed the pro se section 388 petition despite having received actual notice of the date for that hearing when it was scheduled at the previous hearing. When the juvenile court appointed new attorneys to represent parents, it admonished the attorneys to "make it clear to their clients that they cannot file paperwork on their own behalf. The filing needs to come from the attorney. [¶] The Court is not going to accept the findings[] at this point unless it comes from the attorney['s] office."
The context of the court's comments—coming immediately after admonishing parents' newly appointed attorneys to instruct parents not to file documents pro se—suggests that the juvenile court was referring to "filings" rather than "findings" as the statement was reported.
At the next hearing, father's counsel agreed with the juvenile court's statement that "I don't believe there have been any JV-180s that have been formally filed." Father's counsel explained that the pro se section 388 petition was inadequate because it was not submitted using form JV-180 and had a "lack of a sufficiency of what would be required in a 388." At the hearing immediately preceding the hearing from which this appeal was taken, the juvenile court had again admonished father that he was not allowed to file documents pro se while represented by counsel. The court also stated it would rule on the post permanent plan review at the next hearing "notwithstanding regarding [sic] a 388 petition, if the Court decides to move forward on that." And at the hearing from which parents appealed, a section 388 petition was never mentioned.
3. The Juvenile Court Properly Refused to Consider the Pro Se Petition
From the foregoing, it appears that the juvenile court refused to consider parents' pro se section 388 petition because they filed it while represented by counsel. At the first hearing after parents filed the petition, the court warned them it would only accept filings from their attorneys. At another hearing, the court noted no form required for section 388 petitions (the JV-280) had been filed. The court ultimately referenced the impropriety of represented parties filing documents pro se at three different hearings. We acknowledge the ambiguity of the court's statement that it would decide the post permanent plan review issue at the next hearing, "notwithstanding regarding [sic] a 388 petition, if the Court decides to move forward on that." But the court could have been referring to the possibility that parents' attorneys would file a new section 388 petition, as father's attorney had suggested might occur. On this record, we find that the juvenile court in effect struck parents' pro se section 388 petition even though it did not explicitly do so.
We find no error in the juvenile court's treatment of parents' section 388 petition. Parents filed the petition pro se while represented by counsel, and the court therefore had discretion to strike it. (Clark, supra, 3 Cal.4th at p. 173.) Even if parents had been unrepresented when they filed the petition, it was procedurally deficient. It was not verified. (§ 388, subd. (a)(1); Rule 5.570(a).) It was not filed using the required form. (Rule 5.570(b).) It did not reference the date or order parents sought to modify (namely the November 2014 section 366.26 selection and implementation hearing order). (Rule 5.570(a)(6).) And rather than "set[ting] forth in concise language" the change of circumstances (§ 388, subd. (a)(1)), the 12-page petition contained an extended statement of asserted facts and criticisms of the actions taken by parents' attorney and the Department. The juvenile court acted within its discretion in refusing to consider the petition.
4. Parents Fail to Demonstrate Ineffective Assistance of Counsel
Parents argue that their attorneys in the juvenile court were ineffective for not pressing the juvenile court for a decision on their pro se section 388 petition, or alternatively for not filing a procedurally proper petition to obtain the relief parents sought.
Parents have a statutory right to competent counsel in dependency proceedings. (§ 317.5, subd. (a).) And parents may have a federal constitutional due process right to counsel when the issues presented directly implicate the parents' fundamental substantive due process right to the care, custody, and control of their children. (In re Arturo A. (1992) 8 Cal.App.4th 229, 238-240.) The standard for ineffective assistance of counsel in dependency proceedings is functionally identical regardless of whether the right arises from statute or the federal constitution. Parents must show not only that their attorneys "failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law," but also that "it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668 (Kristin H.).)
As we have explained, parents' pro se petition was both improperly filed and procedurally deficient. Its clear deficiencies suggest a tactical reason for parents' attorneys to refrain from advocating for it. Parents have demonstrated neither deficient performance nor prejudice in their juvenile court attorneys' failure to press for a ruling on the pro se section 388 petition.
Parents argue that their attorneys should have taken "further action" such as filing a new section 388 petition "to preserve the claims raised by the parents." Parents focused on minor's recantation in their pro se section 388 petition, and they requested "the immediate return" of their child or an explanation by the Department of why such immediate return would be improper. It is important to note at the outset that relief short of what parents requested was available to them under existing orders, and a new section 388 petition was unnecessary to obtain that relief. For example, visitation had always been conditioned on parents completing a family mental health assessment. Once parents completed the assessment (after having refused to do so for an extended period of time), visitation between minor and mother commenced. And the assessment recommended expanding visitation to other family members once it was "clear that visits with Mother have no lasting negative effects" on minor.
As we have noted, section 388 requires both a showing of changed circumstances and a showing that the requested relief is in the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) When, as here, the request is made after reunification services have been terminated, "the parents' interest in the care, custody and companionship of the child are no longer paramount" and "there is a rebuttable presumption that continued foster care is in the best interests of the child." (Ibid.) The Supreme Court stressed in Stephanie M. that a "court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Ibid.) It is undisputed here that minor's recantation was a change of circumstances that, while not necessarily exonerating father, at least presented an issue worthy of investigation. The dispute therefore centers on whether a reasonable probability exists that additional advocacy by parents' attorneys would have led the juvenile court to find it in minor's best interest to be immediately returned to parents' custody.
Ample evidence in the record supports the finding that an immediate return to parents' custody was not in minor's best interest. Wholly separate from the issue of minor's recantation, parents had a long history of not attending or participating in the dependency proceedings. Father did not appear for almost two years after the initial section 300 petition was filed; his first attendance at a hearing occurred almost a year after the section 366.26 determination to place minor in long term foster case. Mother appeared at the jurisdiction and disposition hearing, but then did not appear again until almost a year after the section 366.26 hearing. Parents provide no persuasive justification for their lack of participation. The juvenile court was presented at the section 366.26 hearing with a dependent minor whose parents had not participated in the dependency proceedings. It could have easily terminated parents' parental rights at that point. (See In re Sean S. (1996) 46 Cal.App.4th 350, 352 ["Clearly, a parent who voluntarily chooses not to appear at the selection and implementation hearing has functionally abandoned any parental interest in the minor."].)
When parents began attending hearings, they remained hostile to the Department's suggestions. The difficulty in completing the family mental health assessment process demonstrates parents' recalcitrance. In the original jurisdiction and disposition report, the Department indicated that before authorizing visitation it wanted parents and minor to complete a family mental health assessment. That remained the Department's position throughout the proceedings. But parents repeatedly refused to participate in the assessment. Only after the juvenile court conditioned visitation on a psychologist's recommendation after an assessment did parents finally agree to complete it. On this record, we see no reasonable probability that additional advocacy would have convinced the juvenile court that an immediate return to parents' custody was in minor's best interest. Parents' arguments to the contrary are unpersuasive. Father argues "the case went on for nearly two years without Father's voice truly being heard." But the responsibility for his silence lies with father himself; father chose not to attend years of dependency hearings and remained hostile to the Department once he did start to attend.
Parents note that minor stated she wanted to be returned to parents' custody. While obviously an important consideration, the juvenile court had to balance minor's statement against parents' history of absenteeism and their hostility to both the Department and the juvenile court. The court also had to consider that for over a year during the early stages of the dependency proceedings, minor consistently indicated that she did not want to return to parents' custody. Mother argues the juvenile court "ignored the recommendations of its own expert, ... who concluded that [minor] and Mother shared a strong and loving bond." Though the psychologist noted that the single visit he observed was "spontaneous, joyful, and appropriate," his recommendation was merely that supervised visitation continue. Maintaining the status quo regarding custody was entirely consistent with that recommendation.
Mother compares this case to Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.). Blanca P.'s four children were detained on allegations that Blanca P. inflicted corporal injury on one of her sons. A foster mother noticed that Blanca P.'s three-year-old daughter Daisy had a vaginal opening that "the foster mother herself opined was too large for a three-year-old." (Id. at p. 1742.) During a child abuse services team interview, Daisy was asked if anyone ever touched her " 'pee-pee,' " and over the course of multiple questions Daisy indicated her mom, a boy, and her " 'Pappy' " had done so. (Ibid.) The juvenile court sustained allegations that Daisy's father had molested her. (Id. at pp. 1741, 1745.) Parents "faithfully continued with their therapy and compliance with their reunification plan" throughout the dependency proceedings. (Id. at p. 1745.) And a psychologist who investigated the allegations concluded in an expert report that he " 'seriously doubt[ed]' " that the father had actually molested any of the children. (Ibid.) At an 18-month review hearing, the juvenile court refused to reconsider whether the father had actually molested Daisy and set the matter for a section 366.26 hearing based on a social worker's testimony that the parents had not taken responsibility for the molestation. (Id. at p. 1747.) On review by petition for writ of mandate, the Court of Appeal concluded the juvenile court erred by refusing to reconsider the accuracy of the initial determination that Daisy had been molested, and issued a writ of mandate instructing the juvenile court to hold a new 18-month hearing. (Id. at pp. 1759-1760.)
Blanca P. is distinguishable. The most important distinguishing factor between the two cases is the discrepancy between the Blanca P. parents' participation and parents' participation here. It was undisputed that the Blanca P. parents had "complied with their service plans by all objective measures" (Blanca P., supra, 45 Cal.App.4th at p. 1747, italics omitted), whereas here parents did not participate at all in family reunification services and were not present at the section 366.26 hearing where minor was placed in long term foster care. The nature of the molestation allegations is also markedly different in the two cases. In Blanca P., the psychologist was able to state with reasonable certainty that no molestation whatsoever had occurred (Blanca P., at p. 1745), whereas the psychologist who interviewed minor noted that all "professionals familiar with the case over the last two years expressed certainty that [minor] experienced sexual abuse" by someone.
Parents have failed to demonstrate that their attorneys in the juvenile court provided ineffective assistance by not more forcefully advocating for minor's immediate return to parents' custody.
D. ALLEGED FAILURE TO DEMAND A FULL INVESTIGATION
Parents argue that their attorneys were ineffective because they "did not demand of the Department and/or set forth a full investigation of [minor's] recantation of the original and serious sexual abuse allegations." The record contradicts their argument. According to a status report summarizing the family team meeting that occurred after minor recanted, parents' attorney "stated the Department had a moral and legal obligation to investigate the recantation statement and letters presented by [minor] and return her to her parents." The attorney who was later appointed for father informed the court that he was "trying to work with the social worker and the minor's attorney ... about possibly setting up visits." That attorney also discussed the possibility of filing a section 388 petition, but then was substituted out at the next hearing at father's urging after a meeting with father where it "became abundantly clear to [the attorney] that [father] did not want my services." Parents have not demonstrated deficient performance on this issue.
E. PARENTS' CONSTITUTIONAL ARGUMENTS ARE FORFEITED
Parents argue that the juvenile court's refusal to either consider their pro se section 388 petition or order further investigation by the Department violated parents' federal constitutional due process rights to a fair trial and to the care, custody, and control of their child. Parents acknowledge they did not object on constitutional grounds in the juvenile court, and they also acknowledge the general rule that a failure to object forfeits the argument on appeal. (Citing In re T.G. (2013) 215 Cal.App.4th 1, 14 ["In dependency litigation, '[a] party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court.' "].)
Parents argue we should exercise our discretion to consider their forfeited constitutional arguments because the case presents the "important public policy" issue of "whether it is legally sound to have evidence of a recantation of a serious charge of sexual abuse but then make no orders or findings in light of this new evidence." Parents' argument ignores the procedural posture of these ongoing dependency proceedings. Parents retain their parental rights and remain free to file properly-supported section 388 petitions to change or modify previous orders. (See Marilyn H., supra, 5 Cal.4th at p. 309 ["Section 388 provides the 'escape mechanism' that ... must be built into the [dependency] process" to comply with substantive due process.].) As the augmented record indicates, parents availed themselves of that opportunity and the juvenile court agreed to provide parents family reunification services. Because parents are able to assert their constitutional rights in the ongoing dependency proceedings, we decline to reach their constitutional arguments here.
III. DISPOSITION
The April 2016 order after judgment and the juvenile court's treatment of the pro se section 388 petition are affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.