Opinion
E070367
09-26-2018
In re J.H. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.H. et al., Defendants and Appellants.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant, D. H. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant, J. D. Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant, S.G. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J254172, J254173, J254174 & J254175) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant, D. H. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant, J. D. Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant, S.G. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, S.G. (Mother), appeals from the order terminating her parental rights to her four children under Welfare and Institutions Code section 366.26, subdivisions (a), (b), (j), and (g). D.H. (Father H.) and J.D (Father D.) join in Mother's appeal. Mother contends there was insufficient evidence to support the trial court's orders suspending her monitored telephone calls with the children. She argues that suspending visitation foreclosed her ability to assert the parent-child bond exception to termination of her parental rights.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
We conclude Mother, and Father H. and Father D. by joinder in Mother's appeal, forfeited Mother's objection to the juvenile court's orders suspending Mother's telephone contact with the children. We therefore affirm the judgment terminating parental rights.
II.
FACTS AND PROCEDURAL BACKGROUND
Mother's children include Amelia (born in 2007), David (born in 2009), L.J. (born in 2011), and Jonathan (born in 2014). Father H. is the presumed father of the four children (daughter and three sons), and Father D. is Amelia's biological father. Mother and Father H. (parents), were married and were living together with the four children when the children were detained on April 7, 2014.
A. Detention
On April 7, 2014, plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received a referral reporting caretaker absence/incapacity and general neglect by parents after Mother was arrested for felony child abuse, and Father H. was arrested for "'fighting with the police.'" When interviewed by a CFS social worker that same day, Mother said she punched David (four years old) in the nose after he, Amelia, and L.J. poured syrup and butter throughout the family home. Mother also reported that "'a while back'" she had used methamphetamines when her mother (grandmother) took her children away from her and would not return them. The social worker observed that Mother presented symptoms of recent substance abuse, including having difficulty tracking the conversation, appearing very thin, and having multiple facial sores and pimples in various stages of healing.
The police officer who responded to the domestic disturbance call reported that Mother had an outstanding warrant for a narcotics related charge, and Father H. had been arrested the year before for domestic violence. There was a restraining order against Father H., which Mother admitted violating by allowing Father H. to return and live in the family home. Father H. had been living there on and off for the past few months. On April 7, 2014, the three older children were detained together in foster care and Jonathan was detained in a separate foster home.
On April 9, 2014, CFS filed section 300 petitions on behalf of the children, alleging parents had a substance abuse problem; they had criminal histories; they had a history of domestic violence; Mother failed to make adequate arrangements for the children's care; and Mother physically assaulted David, which placed his siblings at risk of similar abuse. In March 2010, CFS detained Amelia and David due to parents' drug abuse and domestic violence. Amelia and David were returned to parents in December 2011, and the case was closed. At the detention hearing, the juvenile court ordered the children removed from parents and detained in foster care.
B. Jurisdiction/Disposition
CFS reported in the April 2014 jurisdiction/disposition report that the three oldest children were placed with grandmother. Jonathan was placed in a separate foster home. During Mother's interview on April 15, 2014, Mother admitted she had used methamphetamine twice within the past four months. Mother said she and Father H. did not currently deserve their children. Parents admitted they were in a cycle of violence in the home. During Father H.'s interview on April 15, 2014, Father H. stated he had smoked marijuana since he was 13 years old but denied using methamphetamine. Father H. reported he was arrested for domestic violence in 2013 after Mother called the police claiming he was trying to take the children. Father H. explained that he was removing the children from the home because Mother was about to use methamphetamine. Father H. acknowledged that when he and Mother fought he pushed Mother out of the way, and twice before had grabbed her throat.
Amelia's father, Father D., was currently incarcerated. He had an extensive criminal history and had been incarcerated on and off throughout Amelia's life. Parents reportedly were actively engaged in an outpatient drug treatment program. They were attending parent education classes and arranging for domestic violence and counseling services. Parents were also consistently visiting the children every week. On June 4, 2014, the court authorized Jonathan to be placed with his siblings and grandmother.
At mediation in June 2014, parents agreed to reunification services, placement of the children with grandmother, and parents separately visiting the children. The supervised visits were not to be supervised by grandmother. During the contested jurisdiction/disposition hearing in June 2014, the court declared the children dependents of the court and found true the petition allegations, with the exception the court dismissed section 300, subdivision (g) allegations (parent incarcerated); amended the petition to omit the word "current" as to Mother's substance abuse; and amended the petition to state Mother "slapped," rather than "assaulted," David. The court ordered the children removed from parents and placed with grandmother. The court authorized reunification services and supervised visitation once a week for two hours per visit for parents. The court denied Father D. reunification services but ordered supervised visitation with Amelia once per month.
C. Six-, 12-, and 18-month Review Hearings
Parents participated in reunification services programs for substance abuse and parenting. Their visits with the children were inconsistent. To accommodate parents' work schedules, CFS authorized grandmother to supervise Father H.'s visits. CFS reported that Mother tested positive for amphetamine in September 2015. Mother admitted to abusing drugs and conceded she might not be ready to take custody of the children. At the six-month hearing in December 2014, the court ordered the children to remain with grandmother, continued reunification services for parents, and supervised visitation for them twice a week for two hours per visit.
CFS reported in its June 2015, 12-month status review report that Father H. had been incarcerated since February 2015, and had been sentenced to two years in prison, exceeding the reunification time frame. Mother had made moderate progress, testing negative to drugs, but missed two drug tests. Mother requested to move to grandmother's home to be closer to the children. At the 12-month hearing on June 5, 2015, the court terminated reunification services for Father H. and continued services for Mother, with weekly visitation twice a week for two hours.
CFS reported in its 18-month status review report filed in October 2015 that Mother had moved to the front house of grandmother's home and was transitioning to unsupervised visits. Mother planned to divorce Father H., who was incarcerated. She was inconsistent with drug testing but the social worker reported that she did not appear to be using drugs. The social worker therefore concluded there were no safety or risk concerns regarding Mother's appropriateness and protective capacity as a parent. However, the social worker reported in a supplemental report filed in October 2015 that CFS had changed its recommendation regarding Mother's reunification services because Mother had recently tested positive for amphetamines and Mother had said she might not be ready to have the children back in her care. The social worker concluded Mother had not benefitted from reunification services and therefore recommended terminating her reunification services.
At the 18-month status review hearing in October 2015, the court terminated Mother's reunification services and limited visitation to once per week for two hours for parents. The children remained placed with grandmother, with the goal of legal guardianship.
D. Father H.'s Section 388 Petition
In February 2015, Father H. filed a section 388 petition requesting the court to vacate the order on June 5, 2015, terminating Father H.'s reunification services. Father H. alleged a change of circumstances, which included being released from custody. CFS responded that Father H. was incarcerated from February 2015 to January 2016 for violating his probation by failing to engage in domestic violence classes. At the March 2016 hearing on Father H.'s section 388 petition, the court ordered informal services for Father H. for up to six months, legal guardianship to remain the children's permanent plan, and supervised visitation for Father H. twice a week for two hours. Father H. withdrew his section 388 petition.
At a nonappearance review hearing on July 13, 2016, Father H. had made progress in completing his case plan and had completed "most of" his 12 sessions of domestic violence classes. The court therefore authorized unsupervised day visitation and overnight and weekend visits when CFS deemed visits appropriate.
E. CFS's Section 387 Petition
On July 27, 2016, CFS received a 10-day child abuse referral, with allegations of general neglect by the relative caregivers (maternal grandparents), and sexual abuse by an unknown individual. CFS investigated and discovered that parents had been sharing their visits and the children had witnessed parents yelling and arguing during visits. Grandmother failed to disclose these concerns to CFS previously. During the investigation, grandmother told the social worker that David had been inappropriately touching L.J.'s private parts for about one year because a paternal uncle, with whom David no longer had contact, had sexually abused David. Grandmother placed the two boys in separate rooms. Grandmother stated that in her culture, they "'keep these kind of things in the family.'" Grandmother reported that parents were always fighting during their shared visits.
Amelia confirmed she had heard parents yelling at each other, and the children yelled at them to stop. Father H. reported that Mother had been interfering with his visits. Mother lived in the front house of grandmother's home. When Father H. visited the children, she came out and argued with him. On August 16, 2016, the children were removed from grandmother's home and placed in foster care.
In August 2016, CFS filed a section 387 petition (supplemental petition), alleging grandmother had failed to follow the court-ordered visitation arrangements. She permitted parents to share supervised visits, failed to protect the children from exposure to domestic violence, left the children in parents' unsupervised care, and failed to report concerns to CFS regarding David's sexualized behaviors. At the detention hearing on the supplemental petition (Objection to Packet hearing), Mother stated that the children had been primarily in her care, not in grandmother's care. The court ordered the children removed from grandmother's home and placed in foster care.
At the contested jurisdiction/disposition hearing on the supplemental petition in December 2016, the court found the children came within section 387, that the supplemental petition allegations were true, and that clear and convincing evidence supported removing the children from grandmother. Supervised visitation was ordered for Mother (once a week for two hours), for Father H. (once a week for two hours), and for Father D. (once a month for one hour).
F. Mother's Section 388 Petition
In November 2016, Mother filed a section 388 petition requesting the court to vacate its orders terminating her reunification services (October 7, 2015, order) and detaining the children from grandmother (August 19, 2016, order). Mother alleged her circumstances had changed in that she had divorced Father H., had not had any contact with him, and was participating in a rehabilitation program. Mother requested the court to reinstate her reunification services. The court denied Mother's section 388 petition on the ground there were no new circumstances and granting the petition was not in the children's best interests.
G. Suspension of Mother's Visits
In March 2017, CFS submitted an approval packet requesting the court to suspend Mother's visits with the children based on the following circumstances. On January 29, 2017, the children were placed with a paternal aunt in Sacramento (Father H.'s sister). On January 30, 2017, paternal aunt reported to the police that, after Mother spoke to her children on the telephone, Mother told paternal aunt that she was upset with paternal aunt because she had custody of the children. Mother threatened to send people to paternal aunt's home and said paternal aunt would regret getting involved with her children and being a foster parent to them. Mother told paternal aunt, "'I'm going to send the police to your house. You don't know who you're playing [with].'" Paternal aunt spoke to the social worker about the matter and was told to file a report with the police as evidence of Mother's harassment. On February 6, 2017, Mother contacted paternal aunt again. Paternal aunt informed Mother that there was to be no more telephone communication and to contact the social worker. Paternal aunt reported to the social worker that after the children were placed with her, Amelia, David, and L.J. told paternal aunt that "'Mommy said that she was coming to get us and she was supposed to follow us up here when we were coming. I don't know why she didn't follow us that day.'" Paternal aunt further reported to the social worker that the children had said that "their mother had discouraged them from socializing with their cousins with whom they reside with." Mother told the children "'"they are not your cousins, and you don't need to associate with them."'" Paternal aunt reported that David became visibly upset and began crying. When asked what they thought of their current placement, the children said they were going to remain there for a long time.
CFS advised the court that, "Due to the mother's threatening remarks regarding finding the caregiver's home and sending unknown and unsafe individuals to the caregiver's home in the presence of the children, visits between the children and the mother [are] found to be detrimental at this time. The mother has made numerous threatening comments such as wanting to kidnap the children and refusing to comply by the court orders regarding not discussing the case with the children. The mother's false hope promises [have] created emotional turmoil in the children, as exhibited by crying and being confused as to who to bond with in their current placement. The undersigned [social worker] has attempted to contact the mother to discuss visitation orders and the case, but the attempts have been unsuccessful. The mother has continued to not comply by the court orders and her comments of threat to the children's current caregiver puts the children at risk of harm and danger. Thus, it is respectfully recommended for the mother's visits to be suspended."
During the April 18, 2017, Objection to Packet hearing, the children's attorney, Ms. Coghill, agreed with CFS's recommendation that the court suspend Mother's visits as detrimental to the children. Mother's current court-ordered supervised visitation was once a week for two hours. Ms. Coghill noted that, according to the information in the packet, Mother was threatening to kidnap the children, which was a serious risk to the children's safety. In addition, Mother had not assisted in transitioning the children to living with paternal aunt. Ms. Coghill described Mother's behavior as erratic and irresponsible, and therefore she was causing detrimental emotional damage to the children. Mother objected to the suspension of her visits and telephone calls with the children. Mother requested that, instead, her calls be monitored.
After the court heard argument, it ordered Mother's visits and telephone calls suspended because of their detriment to the children. The court ordered Mother not to have any contact with the children and not to be present during Father H.'s visits with the children.
CFS stated in its postpermanent plan review report, filed in May 2017, that Mother's visits were suspended because she had been threatening the children's caregiver, who was the children's paternal aunt. Mother had threatened that she would find the caregiver's home and send "unknown and possibly unsafe individuals [there]." Mother also said she planned to kidnap the children and violated court orders not to discuss the case with the children. CFS reported that Mother continued not to comply with the court orders, and her threats to paternal aunt put the children at risk of harm and danger. Mother's visits and telephone calls were suspended because of concerns of detriment to the children's safety and well-being through continued contact with Mother. CFS reported that there had not been any reported concerns since the suspension of Mother's visits. CFS further reported the children were doing well in their current placement and were receiving services to address general concerns. Jonathan was being assessed for autism.
At the June 2, 2017, postpermanent plan review hearing, the court ordered that guardianship was no longer an appropriate permanent plan for the children and that adoption was an appropriate plan. The court found that it was therefore in the children's best interests to consider termination of parental rights and set a section 366.26 hearing. The children were ordered to remain in their current placement with paternal aunt. The court ordered Mother's visitation and telephone contact with the children remain suspended on the ground it was detrimental. The court authorized supervised visitation for Father H. and Father D.
H. Section 366.26 Hearing and Section 388 Hearing
CFS reported in its section 366.26 hearing report filed in January 2018 that the children were doing well in paternal aunt's home, where they had been living since January 2017. Amelia, David, and L.J. were developing within normal range. Jonathan had been diagnosed as developmentally delayed and was believed to have autism. The children said they wanted to be adopted by paternal aunt. Paternal aunt was committed to adopting the children, including Amelia, who is not related to paternal aunt. The children were bonded to paternal aunt and to her two biological children. Paternal aunt was willing to allow the children to have a relationship with their parents as long as it was safe to do so and in the children's best interests.
At the section 366.26 hearing on April 11, 2018, Mother filed a section 388 petition requesting the court to vacate the April 18, 2017, order suspending her visitation, and reinstate telephonic visitation. Mother alleged changed circumstances of having attended a 20-week domestic violence class, which she said gave her insight into abusive relationships and their impact on her children. She said the course also helped her understand why her behavior was wrong. The court denied Mother's section 388 petition on the grounds the petition did not state changed circumstances and granting it was not in the children's best interests.
At the section 366.26 hearing on April 11, 2018, Father H. and Father D. testified. At the continued hearing on April 17, 2018, the court found the children would likely be adopted, found no exception to termination applied, and terminated all three parents' parental rights.
III.
FORFEITURE
CFS argues Mother forfeited her objection to the juvenile court order suspending Mother's visitation on April 11, 2018, by not timely appealing the order. We agree.
"'A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.' [Citations.] As a result of these broad statutory terms, '[j]uvenile dependency law does not abide by the normal prohibition against interlocutory appeals.' [Citations.] The dispositional order is the 'judgment' referred to in section 395, and all subsequent orders are appealable. [Citation.] '"A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." [Citation.]' [Citations.]" (In re S.B. (2009) 46 Cal.4th 529, 531-532.)
As explained in In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151, "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." In Meranda P., supra, at p. 1151 the court declined to carve out an exception to the waiver rule even though the issues raised involved the important constitutional and statutory rights to counsel and to the effective assistance of counsel.
"Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ' waiver,' the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the '"intentional relinquishment or abandonment of a known right."'" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) --------
Likewise, in the instant case, the waiver rule applies to the court's April 18, 2017, and June 2, 2017, orders suspending Mother's visitation and telephone contact with the children. Mother did not file an appeal from any of the appealable postdispositional orders suspending her visitation and telephone contact with the children, and the time within which to do so has long since passed. (In re Meranda P., supra, 56 Cal.App.4th at p. 1151; Cal. Rules of Court, rule 2.) She did not appeal the order at the Objection to Packet hearing on April 18, 2017, suspending Mother's visitation and telephone contact with the children. She also did not appeal the postpermanent plan review order on June 2 2017, in which the court again ordered continued suspension of Mother's visitation, including telephone contacts, and set the section 366.26 hearing. In addition, Mother did not petition this court for extraordinary writ review of the order setting the section 366.26 hearing. Mother thus forfeited her objection to the juvenile court orders suspending telephone contact with the children.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.