V.S.v.Superior Court

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWODec 2, 2019
E073741 (Cal. Ct. App. Dec. 2, 2019)

E073741

12-02-2019

V.S., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Real Party in Interest.

Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Deputy County Counsel for Real Party in Interest.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J272114) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Annemarie G. Pace, Judge. Writ denied. Valerie Ross for Petitioner. No appearance for Respondent. Michelle D. Blakemore, County Counsel, Michael A. Markel, Deputy County Counsel for Real Party in Interest.

Petitioner V.S. (Mother) has filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, claiming that the juvenile court's jurisdictional finding under Welfare and Institutions Code section 300, subdivisions (e), and (f), is not supported by substantial evidence. For the reasons set forth below, we deny Mother's writ petition.

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

FACTUAL AND PROCEDURAL BACKGROUND

In July 31, 2017, D.E. (Minor; born Feb. 2017) came to the attention of San Bernardino County Children and Family Services (CFS). CFS received an immediate response referral when Mother was arrested for driving under the influence of narcotics with Minor in her car.

When the investigating social worker went to the sheriff's station, the social worker learned that it was father who called law enforcement because Mother was hysterical and "not in her right mind." Father stated that Mother starting acting "crazy out of nowhere." Moreover, the arresting officer told the social worker that Mother "failed a sobriety test and admitted that she 'used meth two days ago.' " The deputy also reported that Mother's car was a wreck and severely damaged. Thereafter, the social worker spoke with Mother. Mother "reported that before her recent use she was clean since New Year's" and denied participating in substance abuse programs in the past. Mother stated that " 'I can stop whenever I want' and 'I'll never use again, I learned my lesson.' " Mother went on to tell the social worker that she and father were having problems; she discovered that father was unfaithful to her that day and she "lost it." Mother further reported that she and father had a history of domestic violence. There were visible bruises on Mother's legs and arms but Mother was unable to identify what caused them.

Father, D.E. Sr., is not a party to this writ petition. Mother also has another child, J.L., whose custody she shared with J.L's father. J.L. and his father are not parties to this writ petition.

A maternal aunt (Aunt) told the social worker that Mother had a history of substance abuse but Mother got clean after giving birth to Minor. Aunt started to notice changes in Mother about " 'a month ago,' " but the changes did not cause her concern.

In addition to the immediate response referral, on July 31, 2017, CFS received a referral reporting that parents fed Minor Kool-Aid instead of infant formula. Moreover, the referral reported that parents had transported Minor without strapping him into a car seat, and that Minor had "severe diaper rash." The referral further reported that parents engaged in physical domestic violence and Mother had a history of using methamphetamine.

On August 2, 2017, CFS filed a section 300 petition on behalf of Minor alleging failure to protect and no provision for support under section 300, subdivisions (b), and (g). At the detention hearing on August 3, 2017, the court temporarily placed Minor in the care of CFS.

In the jurisdiction and disposition report dated August 24, 2017, CFS recommended that the court find the allegations true and offer family reunification services to parents.

In the report, the social worker reported that according to Mother, she began using methamphetamines at the age of 15. Mother also smoked "dope" when she was younger. Thereafter, Mother had periods of sobriety and was able to stop using when she was pregnant with Minor. Most recently, she relapsed after she stopped nursing Minor but believed her use was limited to "a couple of times." When Mother used, she left Minor with a maternal relative. Mother denied having a substance abuse problem. At the detention hearing on August 3, 2017, she tested negative for all substances. However, five days later, on August 8, 2017, she tested positive for amphetamines at an on-demand drug test.

Father's substance abuse history was similar to Mother's. He began using marijuana when he was 11. At 15 years of age, he "dabbled" in other substances, including methamphetamine and acid. Father stated that he last used methamphetamine with Mother in December of 2016.

The social worker also reported that Mother minimized domestic violence in the home. Although Mother acknowledged verbal arguments with father, she denied any physical violence. On August 9, 2017, however, CFS received a call from a paternal relative who reported a history of father being aggressive with and abusive to Mother. On August 11, 2017, father reportedly physically assaulted Mother by hitting her in the face, which left facial abrasions.

Because both parents "admitted to substance abuse problems" and "engaged in domestic violence," the social worker recommended the removal of Minor from parents. The social worker recommended that parents receive family reunification services. The social worker recommended that Mother's case plan include individual counseling, a domestic violence program, a parenting class, an outpatient substance abuse program, and drug testing. At the hearing on September 19, 2017, the juvenile court approved Mother's case plan.

In the status review report filed on March 7, 2018, the social worker included documents to show that Mother completed her case plan. The social worker, however, was concerned about Mother's failure to benefit from services; parents continued to minimize the safety concerns related to the past domestic violence, one of the reasons for Minor's removal. Therefore, the social worker recommended that Mother's reunification services continue. Mother set the matter contested, and requested the return of Minor.

In the status review report, the social worker noted that when she brought up past domestic violence issues, parents gave the social worker different accounts. Father denied any prior domestic violence and minimized his contacts with Mother from the reporting period. Father also stated that he and Mother were in a relationship and planned "to do this together," and that they did not "want to break up the family."

Contradicting father, Mother denied any contact with father. Mother offered to obtain a restraining order against father if it would assist in the return of Minor to Mother. Mother also denied prior domestic violence. The visitation center and the foster parents, however, reported that Mother came to a visit with a large bruise on her thigh; Mother told them that "the father did it."

The social worker noted parents had completed counseling for mental health, domestic violence and parent education. The social worker recommended that if new issues should arise, parents should continue to participate. The social worker also recommended a 12-step substance abuse program, and substance abuse testing.

On March 9, 2018, in an additional information to the court filed with the court, the social worker reported that parents were no longer in a relationship but wished to participate in a coparenting class.

On April 4, 2018, at the contested section 366.21, subdivision (e), hearing, the juvenile court ordered unsupervised visits for Mother and authorized CFS to return Minor to Mother's custody under family maintenance by approval packet. Parents were ordered not to visit Minor together.

On May 21, 2018, the social worker submitted an approval packet requesting overnight and weekend visits for Mother and Minor. Mother continued to attend her 12-step program and continued "to make steady progress with independence, sobriety and parenting skills." CFS assessed Mother's residence and found it free of safety concerns. On May 31, 2018, the juvenile court approved the request for unsupervised overnight and weekend visits with Mother.

In a status review report filed on August 10, 2018, but signed by the social workers on July 17, 2018, CFS recommended the return of Minor to Mother in family maintenance. However, in an additional information to the court filed on August 10, 2018, and signed by the social workers on August 7, 2018, CFS changed the recommendation to terminate Mother's services and to place Minor in a permanent living arrangement with a goal of adoption. The additional information reported that on August 1, 2018, Mother, being threatened by father, disclosed to the social worker that Mother had been in a relationship with father throughout the reunification period. Father threatened to disclose their relationship to the social worker. Mother, therefore, "figured it would be better if [she] beat him to it and [was] honest with [the social worker]." According to Mother, father was violent with her and beat her up. As a result, Mother miscarried a baby during the reunification period with Minor. Father also resided down the street from the maternal grandmother's home, where Mother lived. Mother stated that "it's basically a drug house and I would go over every night I didn't have [Minor]." Father continued to test positive for methamphetamines and was terminated from an outpatient program for refusal to test and noncompliance with the treatment guidelines. Although Mother completed her 12 months of services, she failed to benefit from services; Mother continued to engage in a domestic violence relationship with father, placing Minor at risk. As a result, Mother's visits reverted to supervised visits with reduced frequency.

Later, Mother denied telling the social worker that she was afraid that father would disclose their relationship to the social worker: "I didn't tell her any of that because I was . . . scared that she was going to find out anything because I haven't done anything to be afraid of." --------

When looking into adoption for Minor, CFS considered several relatives. Aunt reported that she was unable to adopt Minor because Mother needed "to understand there are consequences to her actions and [parents] are under the impression that [Aunt] can adopt [Minor] and return him to [Mother] once the case is closed." The Aunt went on to state that "things don't work that way, if that child for any reason gets hurt it will all fall back on me." Maternal grandmother was unwilling to adopt Minor because of her age and health.

At the hearing on August 20, 2018, Mother set the matter contested seeking Minor's return, or in the alternative, continued reunification services.

In an additional information to the court filed on September 12, 2018, the social worker memorialized a phone conversation with father wherein he stated he moved to Arizona in July of 2018 to look for work. The social worker additionally noted that Mother informed the social worker that father had left Mother for another woman.

On September 24, 2018, at the contested section 366.21, subdivision (f), hearing, counsel for CFS requested that the court receive into evidence the reports filed in this matter. The court accepted them into evidence. Thereafter, Mother testified. Mother explained that she was in an "on-again, off-again" relationship with father after March of 2018. Father, however was seeing someone else, which resulted in an argument sometime in August 2018. Mother denied any domestic violence incidents in her relationship with father. Mother did acknowledge that she would spend nights with father at "the drug house" where residents used drugs. Mother stated that she was not tempted to resume drug usage. Mother admitted that the outpatient substance abuse program taught her not to be in drug environments. She knew it was not "a good idea" but believed she had control and was focused. Mother also explained that she never took Minor along pursuant to the court order forbidding father to see Minor during Mother's visits. Mother reenrolled in a domestic violence class. Mother also continued to attend individual counseling, life skills awareness, and another domestic violence class. Additionally, Mother participated in coparenting, which served as couple's counseling.

Mother's counsel requested a continuation of reunification services and to reinstate Mother's unsupervised visits with Minor. Minor's counsel argued for termination of services given that Mother failed to "learn anything about the effects of domestic violence" and failed to demonstrate any protective capacity. Counsel for CFS joined the request to terminate Mother's services because she "maintained an ongoing relationship with her domestic violent partner, the perpetrator of severe abuse leading to the loss of her child in the past." Moreover, CFS's counsel noted that Mother did not show any self-awareness about the effects of domestic violence in a relationship.

The juvenile court agreed that there was an "extreme lack of benefit" in this case. The court stated, "Mother's testimony highlights that she has not benefitted from the services provided by the Department," and that there was no substantial probability of return. The court, therefore, terminated Mother's services and set a section 366.3 hearing for March 22, 2019.

On October 22, 2018, CFS submitted a packet requesting to reduce Mother's visits to twice a month for two hours because of Minor's behavioral concerns. Mother objected and requested a hearing on the issue. After conducting a hearing on November 13, 2018, the court signed the packet reducing Mother's visits.

On January 3, 2019, Mother filed a section 388 petition asking for family maintenance with Minor. In support of her petition, Mother argued the same evidence presented at the contested section 366.21, subdivision (f), hearing. Mother also argued that Minor's return was in his best interest because he was very bonded to her. The court summarily denied Mother's petition because Mother tried "to reargue what was presented at trial."

On January 22, 2019, Mother filed a notice of appeal challenging the denial of her section 388 petition. On July 12, 2019, in case No. E072021, we affirmed the denial of Mother's section 388 petition.

In the interim, a postpermanent review hearing was held on March 22, 2019. The permanent plan remained placement in foster care with a plan of adoption.

On September 23, 2019, another postpermanency review hearing was held. At the hearing, the recommendation was to change the permanent plan to adoption as the caregivers, paternal grandparents, desired to adopt Minor. Mother's counsel objected but failed to present any evidence or argument. Mother addressed the court stating, "I just want to say something. I just want to say none of this legally trickery [sic] matters anymore. You all have my property. I've gone on the record as a woman. Now all rights—now with all rights retained, I'm the only one here withstanding and I'll see you in my court." When the court asked if she wanted to hear her writ rights, Mother responded, "I don't care." The court said it was going to read them anyway; Mother announced that she was walking out and the court noted, "Mother is walking out."

In Mother's absence, the juvenile court set the section 366.26 hearing for January 21, 2020. Two days later, on September 25, 2019, Mother filed a notice of intent to file writ petition and request for records, to review order setting a hearing under section 366.26.

DISCUSSION

In her writ, Mother argues that "substantial evidence does not support the court's findings that Mother's contact with father outside of her home when the baby was in the care of another adult showed that Minor was at risk of serious physical/emotional harm." In support of her argument, Mother stated that "while Mother had overnights and weekend visits with her son, she went to see the father only on the nights she didn't have the baby. There was no evidence that spending the nights she didn't have the baby with dad caused her to ignore her parental responsibilities when she did have the baby." In essence, in this section 8.452 writ, Mother is arguing that there is no substantial evidence supporting the court's order from the section 366.21, subdivision (f), hearing on September 24, 2018. We agree with CFS that Mother has waived this issue by failing to appeal from that order.

Section 395, provides in relevant part: "A judgement in a proceeding under Section 300 may be appealed in the same manner as any final judgement, and any subsequent order may be appealed as an order after judgment." Section 395 "makes the dispositional order in a dependency proceeding the appealable 'judgment.' [Citation.] Therefore, all subsequent orders are directly appealable without limitation. . . . [Citations.] 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.] This 'waiver rule' holds 'that an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order,' even when the issues raised involve important constitutional and statutory rights." (In re Z.S. (2015) 235 Cal.App.4th 754, 769-770, italics added.)

In this case, at the postpermanency review hearing on September 23, 2019, the juvenile court made the following findings: (1) that it is in the best interest of Minor to consider termination of parental rights; (2) the permanent plan of adoption is appropriate and ordered as the permanent plan; and (3) a hearing under section 366.26 is to be held to determine the most appropriate permanent plan.

During the hearing on September 23, 2019, the juvenile court did not make any finding that Mother's contact with father outside of her home put Minor at serious physical or emotional harm. This finding was made at the section 366.21, subdivision (f), hearing held on September 24, 2018, when the court terminated Mother's reunification services. Because a section 366.26 hearing was not set at that time, Mother should have filed an appeal to challenge the court's finding. She failed to do so. Instead, three months later, she filed a section 388 petition to relitigate the section 366.21, subdivision (f) hearing. The juvenile court denied the petition and we affirmed the lower court's ruling.

As noted above, a notice of appeal must be timely filed after each hearing that results in an appealable judgment or order. (In re Z.S., supra, 235 Cal.App.4th at pp. 769-770.) "[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.' " (Ibid.; see also Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) Thus, an appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time to appeal has passed. (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.)

Here, because Mother is attempting to challenge a finding made at the section 366.21, subdivision (f), hearing in September of 2018, and not from the postpermanency hearing on September 23, 2019, the issue raised in her section 8.452 writ petition has been waived. Therefore, Mother's writ petition is denied.

DISPOSITION

The writ petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J. We concur: McKINSTER

Acting P. J. RAPHAEL

J.