Opinion
E073329
03-18-2020
In re K.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J274588) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court took jurisdiction over K.G. after her parents were arrested and incarcerated for conspiracy and murder. J.G. (Mother) appeals from the order terminating parental rights, but Mother challenges only earlier orders—namely, the jurisdictional findings, the dispositional order removing K.G. from Mother's custody and bypassing reunification services, and an order placing K.G. with paternal relatives. Mother asserts that she did not challenge those earlier orders in a timely manner because her retained counsel provided ineffective assistance. We conclude that Mother has forfeited her challenges and affirm the order terminating parental rights.
BACKGROUND
On January 18, 2018, San Bernardino County Children and Family Services (CFS) received a referral alleging that 18-year-old Mother and 17-year-old A.E. (Father) had committed murder while K.G. was in the backseat of their car. K.G. was less than one month old at the time. Mother was arrested the day before the referral, but the police had not yet apprehended Father.
CFS located K.G. at the home of maternal uncle. The social worker did not know whether the maternal relatives were "aware of [M]other and [F]ather's lifestyle" and removed K.G. from maternal uncle's home. Maternal uncle and maternal grandmother, who was also at the home, wanted to be considered for placement of K.G.
CFS filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (g), alleging that the parents had committed a violent crime in K.G.'s presence, that Mother was incarcerated and Father was "on the run," and that the parents could not arrange for K.G.'s care and support.
Further undesignated statutory references are to the Welfare and Institutions Code.
Mother appeared in custody at the January 2018 detention hearing. She requested that CFS assess maternal uncle and maternal grandmother for placement. The court detained K.G., whom CFS had placed in a foster home.
CFS interviewed Mother for the jurisdiction/disposition report. Mother reported that Father physically abused her, and she had moved out of Father's home a few months before K.G.'s birth. She was living with maternal uncle at the time of her arrest. According to Mother, she and the alleged murder victim were friends. On January 14, 2018, the victim gave Mother a ride to buy diapers for K.G. She left K.G. with maternal grandmother. The victim stopped at a park to use the restroom. At the park, a robber, whom Mother was unable to identify, pushed her head down into the passenger seat and shot at the victim three times. Mother drove the victim to the hospital, lied to the staff about her name, and left the victim there. She was in shock and did not know what else to do. The victim died from a gunshot wound to his chest. Two days later, Mother was arrested for murder. She maintained that she had nothing to do with the murder and denied having had sexual relations with the victim.
The police reports painted a different picture of the alleged murder. According to the police reports, the 47-year-old victim liked to have sex with younger women or girls, and he was known to carry several hundred dollars in cash at all times. One of the victim's friends said that the victim had frequently paid Mother for sex. The victim's son said that the victim bragged about his sexual relationships with younger women, including Mother. The son reported that the victim had been with Mother for about three years and "he treated her well." The son had recently heard a rumor that Mother tried to steal $100 from the victim. The victim told his roommate something similar—that he had paid Mother $100 for sex, but Mother did not perform any favors in return.
The police believed that Mother, Father, and another man—D.G.—had conspired to rob the victim. D.G. told police that he drove Father to the park on the night in question. D.G. knew that Mother was with the victim, that Father planned to rob the victim, and that Father had a loaded revolver. Father was communicating with someone on his cellular phone just before he left the car and went toward the center of the park. Father returned 10 to 15 minutes later and instructed D.G. to drive away. He told D.G. that he had shot the victim. After the shooting, Mother called D.G. and Father and asked them to pick her up near the hospital. One witness reported seeing social media messages between Mother and a third party. The messages indicated that Mother "intended to take money from [the victim] the night of the murder but they ended up shooting him."
When the police interviewed Mother, she explained that she and the victim had been friends for three years, and he would sometimes loan her money. She said that she did not see the shooter's face and did not identify the shooter. She explained that she fled the hospital because she needed to get home to K.G., she was not thinking, and she was tired. She claimed that she walked to a friend's apartment nearby, where she found the friend and the friend's boyfriend—D.G. Mother said that her friend and D.G. drove Mother to the grocery store for baby wipes and then took her home. Mother also stated that she had not seen or spoken to Father in weeks. She thought that Father would be mad about her relationship with the victim, were he to discover it.
Mother's friend initially told police a story similar to Mother's story, saying that she and D.G. drove Mother home. But the friend eventually admitted that she was lying and had been at work at the relevant time. Surveillance video captured D.G.'s car at the grocery store and Father purchasing baby wipes. The video showed at least three people in the car. Father turned himself in 10 days after the shooting.
CFS also interviewed Father for the jurisdiction/disposition report. Father said that he was not involved in the alleged murder. He did not know why D.G. was making false allegations about Father's involvement. But he did not like the victim because the victim had a reputation for taking advantage of young girls. Father denied any sexual relations between Mother and the victim.
Father identified several relatives for placement, including paternal great aunt and uncle. Maternal uncle again expressed interest in placement of K.G. and was willing to adopt her if necessary. In February 2018, CFS indicated that an assessment of maternal uncle was pending, but CFS decided to place K.G. with paternal great aunt in March 2018. CFS felt that maternal uncle "demonstrated a lack of protective capacity" because he said that he wanted to return K.G. to the parents eventually. Paternal great aunt had also reported some problematic behavior by maternal uncle and his fiancée. Specifically, paternal great aunt believed that maternal uncle had kicked Father while holding a gun and had threatened to take K.G. to Mexico. Paternal great aunt also accused the fiancée of approaching her 11-year-old daughter in the yard, sitting outside her house in a parked car, and entering her recreational vehicle.
At the June 2018 jurisdiction hearing, the parties negotiated the following settlement: (1) the section 300, subdivision (g), allegations would be dismissed; (2) the subdivision (b) allegations would be amended by deleting the statement that K.G. was present when the parents committed the violent crime; and (3) the parents would submit on the amended subdivision (b) allegations. The court stated: "I know there is an agreement to the allegations, so with the agreement, CFS is dismissing the (g) allegations." The parents orally waived their trial rights and orally submitted on the amended subdivision (b) allegations, which stated that Mother was in custody for conspiracy and murder, putting K.G. at risk of serious physical and/or emotional harm. Mother's counsel explained: "Based on my understanding, to expedite this matter, we agreed this matter could be submitted on the reports, and we will waive any trial rights." The court found the amended subdivision (b) allegations to be true.
D.G. told police that his two-year-old son was in the car during the shooting, but there was no evidence that K.G. was present.
The contested disposition hearing occurred later in June 2018. At the outset, the court acknowledged an off-the-record discussion about relative placement because "some of the things initially reported by the social worker turned out to be not completely accurate or verified." CFS intended to file a report updating the court and parties about the inaccurate allegations against the relatives. And while K.G. remained in the home of paternal great aunt, relative assessments were still pending. Mother asked the court to reserve the issue of relative placement for a later hearing, and the court agreed. Mother then called the social worker to testify. Counsel examined the social worker about her recommendation to bypass reunification services and her knowledge of the services available in jail. Mother argued that the court should order reunification services and reasonable visitation for her. The court adjudged K.G. a dependent of the court, removed her from the parents' custody, followed CFS's recommendation to deny the parents reunification services under section 361.5, subdivision (e)(1), and set the matter for a section 366.26 hearing. The court advised the parents of their right to file a writ petition.
Section 361.5, subdivision (e)(1), authorizes the court to deny reunification services to an incarcerated parent if the court determines, by clear and convincing evidence, that reunification services would be detrimental to the child.
In July 2018, CFS reported on its investigation of the allegations against maternal uncle and his fiancée. The fiancée denied going to paternal great aunt's home. When the social worker questioned paternal great aunt, she admitted that she was unsure whether the fiancée was the person who had come to her home. Paternal great aunt also acknowledged that she had not heard maternal uncle threaten to take K.G. to Mexico—that was a rumor. Paternal great aunt felt that there were "a lot of misunderstandings" between the paternal and maternal relatives, and she now believed that maternal uncle had good intentions for K.G. The court scheduled a hearing on relative placement for December 2018. In the meantime, K.G. remained in paternal great aunt's home.
Paternal great aunt and uncle filed a de facto parent request in November 2018. At that point, K.G. had been living with them for eight months, and they wanted to adopt her. CFS agreed with the paternal relatives' de facto parent request. But in an addendum report, CFS recommended that the court place K.G. with maternal uncle and his fiancée, who also wanted to adopt K.G. They had been visiting K.G. for several months, and the visits had been going well. While the social worker believed that the paternal and maternal relatives all exhibited good moral character, she felt that paternal great aunt had crossed some boundaries "in dealing with the maternal side of the family." The social worker described it as "unfortunate" that "vague and unsubstantiated allegations" prevented K.G. from initially being placed with maternal uncle. Maternal uncle and his fiancée did not appear to hold a grudge against paternal great aunt, and they were open to her and the paternal relatives remaining involved in K.G.'s life. They understood that the charges against Mother were serious, and they agreed to protect K.G. from Mother.
The court tried the relative placement issue over the course of five days in December 2018 and January 2019. On the first day, the court began by granting the de facto parent request of paternal great aunt and uncle. (The parents submitted on that request.) The court heard testimony from two social workers, the adoption worker, a social services aide, maternal uncle, his fiancée, paternal great aunt, another paternal relative, and Father.
In January 2019, after considering all the evidence, the court ordered that K.G. remain with paternal great aunt. The court concluded that both sets of relatives—paternal great aunt's family and maternal uncle's family—were suitable, and K.G. would thrive with both families. And the court acknowledged concerns about paternal great aunt's behavior. It described her as "trying to control CFS and the outcome here," but it suggested that her behavior was motivated by love for K.G. Overall, the court determined that it was in K.G.'s best interest to remain with her long-term caregiver.
The court terminated parental rights at the section 366.26 hearing in May 2019. In July 2019, Mother filed a notice of appeal stating that she was appealing from "a 366.26 hearing on May 30, 2019."
DISCUSSION
Mother argues that substantial evidence did not support the court's jurisdictional findings or the dispositional order removing K.G. from her custody and denying Mother reunification services. She also argues that the court abused its discretion by placing K.G. with paternal great aunt rather than maternal uncle. Mother forfeited her right to seek review of those findings and orders.
"The first appealable order in a dependency case is the dispositional order." (In re T.W. (2011) 197 Cal.App.4th 723, 729.) The parents must raise any challenge to the jurisdictional findings in an appeal from the dispositional order. (Ibid.) At the disposition hearing, if the court denies reunification services and sets a section 366.26 hearing, the rule that dispositional orders are appealable "'"yields to the statutory mandate for expedited review."'" (In re T.W., supra, at p. 729.) In that case, the dispositional order is reviewable only by way of writ petition, and the "'failure to take a writ from a nonappealable dispositional order waives any challenge to it.'" (Ibid., citing § 366.26, subd. (l)(1), (2).)
Moreover, an order after the dispositional hearing is appealable "as an order after judgment." (§ 395; accord In re Daniel K. (1998) 61 Cal.App.4th 661, 666-667.) The appellant must file a notice of appeal within 60 days after the appealable order. (Cal. Rules of Court, rule 8.406(a); In re Daniel. K., supra, at p. 667.) An "unappealed . . . postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 (Meranda P.).)
Mother appealed in July 2019 from the May 2019 order terminating parental rights. By that time, the June 2018 jurisdictional findings, the June 2018 dispositional order, and the January 2019 placement order were final. She failed to seek writ review after the dispositional hearing or appeal from the placement order. Consequently, she forfeited her right to challenge the findings and orders. She forfeited any challenge to jurisdiction for the additional reason that she agreed to submit on the section 300, subdivision (b), allegations in exchange for dismissal of the subdivision (g) allegations. (In re N.M. (2011) 197 Cal.App.4th 159, 164-165, 167.)
Mother recognizes that she failed to seek timely review of the jurisdictional findings, dispositional order, and placement order, but she argues that her trial counsel's ineffective assistance should excuse those failures. The argument lacks merit.
Shortly after Mother filed her opening brief in this case, Mother filed a petition for writ of habeas corpus raising the same ineffective assistance of counsel claims. (In re J.G. on Habeas Corpus (case No. E073953).) In a separate order, we deny that petition.
As a general matter, the forfeiture rule applies even where the parent claims ineffective assistance of counsel. (Meranda P., supra, 56 Cal.App.4th at pp. 1159-1160; see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2019) § 2.193[4], p. 2-763 ["[A]n ineffective counsel claim must be made in a timely manner or it will usually be lost"].) In Meranda P., the parent appealed from the order terminating parental rights but raised untimely challenges to orders predating the section 366.26 hearing. (Meranda P., at pp. 1150-1151.) Like Mother, the Meranda P. parent asserted that her failure to timely challenge the earlier orders was the result of ineffective assistance of counsel. (Id. at p. 1151.) The court rejected the argument and concluded: "[I]f a parent, for whatever reason, has failed to timely and appropriately raise a claim about the existence or quality of counsel received at a proceeding antedating the [section 366.26] hearing, we will apply the waiver rule to foreclose the parent from raising such an objection on appeal from the termination order." (Id. at p. 1160.)
The Meranda P. court held that applying the forfeiture rule to ineffective assistance claims did not infringe a parent's due process rights (Meranda P., supra, 56 Cal.App.4th at pp. 1151-1155), and it was consistent with the goals of dependency law (id. at pp. 1155-1156). "[A]uthorizing parents to attack final appealable orders by means of an appeal from a subsequent appealable order would sabotage the apparent legislative intention to expedite dependency cases and subordinate, to the extent consistent with fundamental fairness, the parent's right of appeal to the interests of the child and the state. [Citation.] The Legislature has made known its desire not to allow the child's future to be held hostage to a postponed appeal." (Id. at p. 1156, fn. omitted.)
Mother relies on two cases criticizing or distinguishing Meranda P., but neither case persuades us to excuse Mother's forfeiture. The first case did not involve an untimely challenge to final orders. In In re Eileen A. (2000) 84 Cal.App.4th 1248, the parent argued that her trial counsel was ineffective for failing to file a section 388 petition before the court terminated parental rights. (Id. at p. 1253.) The parent asserted that changed circumstances warranted the initiation of reunification services. (Ibid.) The court criticized Meranda P. for "intimat[ing]" that ineffective assistance claims are "per se barred after a [section 366.26] hearing has taken place." (Id. at p. 1256.) Whether that is a correct reading of Meranda P., it is not the issue here. We are not holding that all ineffective assistance claims are barred after a section 366.26 hearing. We conclude only that Mother's claim is barred because she is using it to challenge orders that became final long ago.
The second case, In re S.D. (2002) 99 Cal.App.4th 1068, excused the parent's forfeiture because the ineffective representation was the failure to recognize that the juvenile court lacked jurisdiction. (Id. at pp. 1070-1071.) The parents in In re S.D. were "small-time crooks" who had recently been incarcerated for credit card fraud. (Ibid.) The juvenile court took jurisdiction under section 300, subdivision (g), solely on the basis that the parents were incarcerated and could not arrange care for their child. (In re S.D., supra, at pp. 1074-1075.) There was no evidence to support that finding, and in fact, the record "strongly suggest[ed]" that the parents had several options for childcare during their incarceration. (Id. at p. 1071.) The appellate court characterized the matter as the "unusual dependency case" that "never should have been one." (Id. at p. 1070.) Under those circumstances, the court permitted the parent to challenge jurisdiction in an appeal from the order terminating parental rights. (Id. at pp. 1071, 1079-1082.)
The In re S.D. exception is not applicable here for at least two reasons. First, jurisdiction was the result of a negotiated settlement, and Mother orally waived her trial rights. Second, independently of the settlement, the court did not fundamentally lack jurisdiction. Substantial evidence showed that Mother and Father were involved in serious and violent crimes: Mother was engaged in prostitution, she and Father had conspired to rob her customer at gunpoint, and Father killed the customer in the process. Mother and Father were not "small-time crooks" like the parents in In re S.D., supra, 99 Cal.App.4th at p. 1070. Mother's and Father's direct involvement in serious, violent crimes put their newborn at substantial risk of serious physical harm. (§ 300, subd. (b).)
In sum, Mother forfeited her challenges to the jurisdictional findings, dispositional order, and placement order. Those findings and orders were final long before she appealed from the order terminating parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
We deny CFS's request for judicial notice of records in Mother's criminal case. The materials are unnecessary to our resolution of the appeal. (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: SLOUGH
Acting P. J. FIELDS
J.