Opinion
A152869
06-07-2018
In re R.R. et al., a Person Coming Under the Juvenile Court Law. LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JULIA P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. Nos. JV320494-A & JV320494-B)
In October 2017, the Lake County juvenile court terminated appellant Julia P.'s (Mother) parental rights following a Welfare and Institutions Code section 366.26 hearing. Mother contends the Santa Clara County juvenile court erred as a matter of law in transferring the case to Lake County. We affirm. Mother failed to appeal from the transfer order and, as a result, the waiver rule articulated in In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151 (Meranda P.) bars her from challenging the propriety of the transfer order in this appeal.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
R.R. (born October 2013) and P.R. (born September 2014) (Minors) are the children of Mother and Javier R. (Father). In September 2016, the Santa Clara County Department of Family and Children's Services (Santa Clara Department) filed section 300 petitions alleging Minors were within the jurisdiction of the juvenile court because both parents had been violent towards the other in Minors' presence, Mother had an open criminal case for kicking her pregnant sister, Father was abusing methamphetamine, and Mother was abusing marijuana. According to the petitions, Mother resided on Makati Circle in San Jose, Father resided in Lakeport, and Minors had been residing with Mother prior to the intervention.
At the detention hearing, the Santa Clara County juvenile court ordered Minors detained and directed twice-weekly supervised visits for each parent. The parents completed JV-140 "notification of mailing address" forms; Mother's form listed an address on Locke Drive in San Jose where her mother and aunt lived. The juvenile court set a jurisdictional hearing for October 6, 2016; the parents were provided notice of the hearing.
The jurisdictional hearing was postponed. On October 25, 2016, an amended petition was filed as to R.R. adding allegations that Mother "has mental health issues for which she is not seeking treatment . . . . is frequently angry, hostile, and easily agitated, and she demonstrates both physical and emotional aggression . . . . [and] has attempted suicide at least twice in the past year." On October 26, the Santa Clara juvenile court placed Minors with Father's former legal guardian Marcia A. in Lake County.
The record on appeal does not contain an equivalent amended petition with respect to P.R. The Santa Clara Department's dispositional report proceeded as if the new allegations applied to both Minors.
Mother was not present at the November 14, 2016, jurisdictional and dispositional hearing. Her counsel asked for a continuance. Counsel said she had informed Mother of the November 14 hearing, interviewed Mother on October 27, and left several phone message reminders for Mother. The Santa Clara County juvenile court denied a continuance and sustained the amended petition. The court ordered the children removed from Mother's custody and found that placement with Father would be detrimental. The court set a case plan review hearing on February 8, 2017 and a six-month status review hearing on May 8.
Prior to the February 2017 hearing, the Santa Clara Department's social worker reported that she had not heard from Mother despite the worker's efforts to make contact with her. Father had participated in supervised visits that went well. Mother was not present at the February 8 hearing. Mother's counsel said she had unsuccessfully attempted to contact Mother several times. The Santa Clara County juvenile court inquired whether the case should be transferred to Lake County because the Minors and Father were residing there and Mother was not engaging in services. The court set a hearing on March 1 to consider a transfer-out motion.
The Santa Clara Department's report for the March 1, 2017 hearing stated that the social worker had "recently found out" Mother was incarcerated at the Elmwood Correctional Facility (Elmwood) on theft-related misdemeanor charges. Mother did not yet have a release date. Attached to the report were form JV-548 (motion for transfer-out) and form JV-550 (transfer-out order). On March 1, Mother was transported to the hearing from Elmwood and opposed the transfer. The Santa Clara Department argued that transfer of the case to Lake County would be in the Minors' best interests because they and Father were residing in that county. Mother's counsel argued, among other things, that Lake County was not Minors' county of residence for purposes of transfer. Minors' counsel supported transfer. The Santa Clara County juvenile court ordered transfer, concluding it was in Minors' best interests. The court did not advise the parents of the right to appeal.
The Santa Clara Department social worker served the JV-548 form on Mother at Elmwood on March 2, 2107. On March 9, the Lake County Superior Court served the parents with notice a transfer-in hearing had been set for March 27. The notice was sent to Mother at the Makati Circle address listed on the original section 300 petition. The transfer was accepted on March 27; neither parent was at the hearing.
In advance of an April 17, 2017 hearing, a social worker for the Lake County Department of Child Welfare Services (Lake County Department) reported that neither parent had participated in the services ordered by the Santa Clara County juvenile court. At the hearing, Mother's counsel stated that he had been unable to contact Mother. The Department confirmed Mother's whereabouts were unknown.
In a report prepared for a June 5, 2017 hearing, the Lake County Department's social worker stated that neither parent had engaged in services since the transfer. The Department had been unable to contact Mother and she last visited Minors in October 2016. The social worker included a due diligence declaration regarding her efforts to find Mother. On June 5, the Lake County juvenile court terminated reunification services and set a section 366.26 hearing on September 7. The clerk mailed information to parents regarding writ review of the order, mailing Mother at the Locke Drive address. On July 24, a Lake County Department social worker personally served notice of the section 366.26 hearing on Mother at Elmwood.
Mother was present at the section 366.26 hearing on September 7, 2017. Mother's counsel asked the Lake County juvenile court for a continuance, explaining that Mother had not contacted him until September 1. The court continued the hearing to October 4. On September 18, Mother filed a section 388 motion requesting that Minors be returned to her with family maintenance services or that she be provided with six more months of reunification services. She alleged she had recently completed an anger management course and enrolled in a parenting education course, and she was sober and attending Narcotics Anonymous meetings. The Lake County Department's written response argued that Mother had been "deceitful," "did not engage in offered services," and "made no attempt to contact Lake County social workers" since the transfer. The Department opined Mother had not demonstrated a significant change in circumstances.
On October 4, 2017, the Lake County juvenile court denied Mother's section 388 motion, terminated both parents' parental rights, and selected a permanent plan of adoption. This appeal followed.
DISCUSSION
Mother contends the Santa Clara County juvenile court erred in transferring the dependency case to Lake County based on the circumstance that Father and the Minors resided in Lake County. She points out that section 375, subdivision (a) permits transfer only where "the residence of the person who would be legally entitled to the custody of the minor were it not for the existence of a court order issued pursuant to this chapter is changed to another county . . . ." She argues that, because she was the custodial parent at commencement of the dependency proceeding and because her county of residence did not change, transfer was improper. The Lake County Department argues Mother's claim based on the allegedly erroneous transfer of the dependency case was forfeited by her failure to appeal from the transfer order. We agree.
Section 375, subdivision (a) provides, "Whenever a petition is filed in the juvenile court of a county other than the residence of the person named in the petition, or whenever, subsequent to the filing of a petition in the juvenile court of the county where that minor resides, the residence of the person who would be legally entitled to the custody of the minor were it not for the existence of a court order issued pursuant to this chapter is changed to another county, the entire case may be transferred to the juvenile court of the county where that person then resides at any time after the court has made a finding of the facts upon which it has exercised its jurisdiction over the minor, and the juvenile court of the county where that person then resides shall take jurisdiction of the case upon the receipt and filing of the finding of the facts upon which the court exercised its jurisdiction and an order transferring the case."
Section 395 provides in relevant part: "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." (§ 395, subd. (a)(1).) "This statute makes the dispositional order in a dependency proceeding the appealable 'judgment.' [Citation.] Therefore, all subsequent orders are directly appealable without limitation, except for post-1994 orders setting a [section 366.26] hearing when the circumstances specified in section 366.26, subdivision (l ), exist. [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." (Meranda P., supra, 56 Cal.App.4th at p. 1150; accord In re Janee J. (1999) 74 Cal.App.4th 198, 206 (Janee J.).)
In Meranda P. the mother claimed on appeal from an order terminating parental rights (the same posture as the present case) that she had been denied her right to counsel from the detention hearing until the 18-month review hearing and that thereafter her counsel had rendered ineffective assistance. (Meranda P., supra, 56 Cal.App.4th at pp. 1150-1151.) The court of appeal held the claims were barred, stating "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. We decline to carve out an exception to it here even though the issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel." (Id. at p. 1151.)
Meranda P. concluded application of the waiver rule did not infringe the mother's due process rights, noting that the due process analysis required balancing competing interests and reasoning "whatever benefits might accrue to the parent in the absence of the rule, the resulting costs to the child and the state are 'greater.' [Citation.] Of the many private and public concerns which collide in a dependency proceeding, time is among the most important. [Citation.] The action ' "must be concluded as rapidly as is consistent with fairness . . . ." ' [Citations.] The state's interest in expedition and finality is 'strong.' [Citation.] The child's interest in securing a stable, 'normal' home 'support[s] the state's particular interest in finality.' [Citation.] To permit a parent to raise issues which go to the validity of a final earlier appealable order would directly undermine these dominant concerns of finality and reasonable expedition." (Meranda P., supra, 56 Cal.App.4th at p. 1152; see also Janee J., supra, 74 Cal.App.4th at pp. 206-207 [summarizing Meranda P. decision].)
Meranda P.'s formulation of the waiver rule has been followed in numerous subsequent decisions. One example from this district is Janee J., supra, 74 Cal.App.4th 198. In Janee J., the mother claimed "multiple errors of notice and findings at various stages in the proceedings." (Janee J., supra, 74 Cal.App.4th at p. 205.) The court concluded most of the claims were barred by the waiver rule. (Id. at p. 206.) Among other things, the mother claimed "she did not receive timely formal notice, as prescribed by code, that her parental rights could be terminated after six months if she failed to participate in the ordered programs, cooperate with the department, or avail herself of case plan services." (Id. at p. 209.) The claim was waived, despite "the warning's role in assuring a parent due process notice and an opportunity to be heard" and the "heightened role" of the warning in the case, where the normal reunification period was reduced to six months because the minor was under three years old. (Id. at pp. 209-210.)
As Mother points out, there are circumstances under which application of the waiver rule is inappropriate. As explained in In re M.F. (2008) 161 Cal.App.4th 673, at pages 681-682, "The waiver rule balances the interest of parents in the care and custody of their children with that of children in expeditiously resolving their custody status. [Citation.] In most instances, a parent's due process interests are protected despite the application of the waiver rule because the dependency system has numerous safeguards built into it to prevent the erroneous termination of parental rights. [Citation.] [¶] But, the waiver rule will not be applied if ' "due process forbids it." ' [Citation.] Relaxation of the waiver rule is appropriate when an error 'fundamentally undermine[s] the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole.' " For example, in In re M.F., the court declined to apply the waiver rule where the juvenile court erred in failing to appoint a guardian ad litem; the court reasoned, "[f]or the same reasons that [minor's mother] needed a guardian ad litem, she was 'hardly in a position to recognize . . . and independently protest' the failure to appoint her one." (Id. at p. 682; see also In re A.C. (2008) 166 Cal.App.4th 146, 156 [same]; In re Jessica G. (2001) 93 Cal.App.4th 1180, 1190 [declining to apply waiver rule where guardian ad litem erroneously appointed because "Mother was in a Catch 22 situation in which she had a bare remedy with no real knowledge or ability of how to use it and no attorney to whom she could turn to effect it"].) In In re S.D. (2002) 99 Cal.App.4th 1068, at page 1080, the court declined to apply the waiver rule where the mother's counsel "misunderstood the statute and neglected to assert [the mother's] right to control [the minor's] placement, and thus to defeat jurisdiction. . . . Counsel's failure under the circumstances essentially denied [the mother] the right to contest jurisdiction."
In the present case, Mother argues the waiver rule is inapplicable because "the practical effects of the transfer together with the effects of other trial court defects reasonably prevented appellant from being able to avail herself of the due process protections afforded by the scheme as a whole." (Capitalization omitted.) First, she complains the Santa Clara County juvenile court failed to advise her of her right to appeal from the transfer-out order. However, Mother concedes she can identify no statute or court rule requiring such an advisement. And she cites to no authority supporting her contention that lack of notice of the right to appeal is itself a due process violation. (See In re Albert A. (2016) 243 Cal.App.4th 1220, 1238 [no "due process exception to the application of the waiver rule" where statute did not require notice to absent parent of right to appeal disposition]; cf. In re A.O. (2015) 242 Cal.App.4th 145, 147-149 [declining to find issue forfeited where juvenile court failed to follow court rule requiring notice of right to appeal dispositional order].) Furthermore, even though transfer of the dependency case may have created inconveniences for Mother, the Minors were already living in Lake County before the transfer order and nothing prevented Mother from engaging with the Lake County Department social workers around her case plan and visitation. Thus, we reject Mother's contention that lack of notification regarding her right to appeal the transfer order "fundamentally undermined the statutory scheme so that [Mother] would have been kept from availing . . . herself of the protections afforded by the scheme as a whole." (Janee J., supra, 74 Cal.App.4th at p. 208.)
Next, Mother contends the Santa Clara juvenile court failed to send the JV-548 transfer-out form to Lake County juvenile court. The proof of service on the form reflected Mother's current address at Elmwood. She asserts that, because the Lake County juvenile court did not have that form, notice of the Lake County transfer-in hearing was sent to the Makati Circle address that was listed on the original section 300 petition. Mother argues, "[h]ad the JV-548 form been in the record sent to Lake [County], that would almost certainly have avoided the lengthy period in which the Lake County Department allegedly was not able to locate [Mother's] whereabouts for service and communications."
Mother also argues the Lake County Department would have made an effort to transfer the case back to Santa Clara County had they received the JV-548 form and noticed that the case should not have been transferred because Mother did not reside in Lake County. We reject the claim, which requires us to speculate about what the Department would have noticed, what it would have believed about the propriety of transfer, what it would have done if it believed the transfer was improper, how the Lake County juvenile court would have responded, and whether Mother would have participated any more had the case been returned to Santa Clara County while the children remained in Lake County.
The Lake County Department did have difficulty providing Mother effective notice of the proceedings. But Mother bears most of the responsibility for the problems communicating with her because she failed to keep the social workers, her attorneys, and her family appraised of her whereabouts. Mother was in jail a portion of the time when the social workers were unaware of her location, but Mother does not suggest she was unable to inform the social workers of her whereabouts. The record contains two due diligence reports filed by Lake County Department social workers. On May 19, 2017, social worker Amber Linder prepared a declaration for the May 22 six-month review hearing. The declaration details efforts starting in mid-May to find Mother through online searches (including a service that searches jails), phone calls and letters to relatives, and a letter to the Locke Drive address in San Jose where Mother asked to receive mail. Linder eventually reached Mother's sister and mother, who did not know Mother's whereabouts. On June 23, social worker Michael Schweitzer prepared a declaration for the section 366.26 hearing scheduled for September 7. He re-stated social worker Linder's efforts and detailed his additional efforts in early and mid-June, including texting and calling Mother. He reached Mother on her phone, and she confirmed the Locke Drive mailing address was proper. Schweitzer drove to the Locke Drive address and Mother's family confirmed she used it as a mailing address but said they did not know her whereabouts and had not spoken to her "in a long time." On June 21, Schweitzer again called Mother at the number where he had reached her earlier in the month, but the phone was no longer in service. On July 24, Schweitzer personally served Mother with notice of the section 366.26 hearing at Elmwood.
In re O.S. (2002) 102 Cal.App.4th 1402 is inapposite. There, the court of appeal held the father's counsel was ineffective for failing to raise an objection based on notice where the social workers made no effort to find the father and where the father lacked actual notice of the proceeding. (Id. at pp. 1405-1410.) --------
As explained in the background summary, Mother failed to make any effort to participate in the dependency proceedings until shortly before the section 366.26 permanency planning hearing. She knew the dependency proceeding was ongoing and could have resolved any problems with notification by reaching out to the social workers. The Meranda P. and Janee J. cases are clear that parents are responsible for "acting to protect [their] own interests." (Janee J., supra, 74 Cal.App.4th at p. 210; see also ibid. ["if mother truly had no idea that she had to make good on her plan within six months, she never indicated this to the department or to anyone else, as far as our record reveals"]; Meranda P., supra, 56 Cal.App.4th at p. 1158 ["Even if she could not articulate a legal issue such as right to counsel or ineffective assistance, [the mother] obviously knew that she did not have custody of [her child]. If she felt the loss of custody was improper for whatever reason, she had ample opportunity to express her concerns. . . ."].) As with Mother's claim based on failure to receive notice of the right to appeal, any notifications Mother failed to receive due to mailing mistakes by the juvenile courts or social workers did not "fundamentally undermine[] the statutory scheme so that [Mother] would have been kept from availing . . . . herself of the protections afforded by the scheme as a whole." (Janee J., at p. 208.)
"The [waiver] rule serves vital policy considerations of promoting finality and reasonable expedition, in a carefully balanced legislative scheme, and preventing late-stage 'sabotage of the process' through a parent's attacks on earlier orders." (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) Termination of parental rights at the section 366.26 hearing was due to Mother's lack of participation in reunification services, not due to the possible mistakes identified by Mother on appeal, which did not prevent her from keeping in contact with counsel and the social workers and participating in services. Accordingly, Mother has not shown a basis to decline to apply the waiver rule in the present case.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.