Opinion
A123404.
2-26-2009
H.H., Petitioner, v. SAN MATEO COUNTY SUPERIOR COURT, Respondent; SAN MATEO COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.
Not to be Published in Official Reports
H.H. (Mother), mother of A.R., age eleven, and M.H., age eight, challenges the juvenile courts order setting a permanency hearing under Welfare and Institutions Code section 366.26 (section 366.26 hearing) She contends the juvenile court: (1) lacked jurisdiction to issue dispositional orders; and (2) abused its discretion in denying her reunification services. San Mateo County Human Services Agency (the agency) contends Mothers petition was untimely filed and should be dismissed. We conclude the petition was timely filed, reject Mothers contentions, and deny the petition on the merits.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency history
On May 22, 2008, the agency filed juvenile dependency petitions on behalf of A.R. and M.H. alleging they had suffered, or were at substantial risk of suffering, serious physical harm due to Mothers failure to protect them. The petition alleged that Mothers fiancé, D.M., punched A.R. in the stomach and back, slapped him on the face, and hit him with a closed fist. Mother was aware of the abuse but did not intervene. The petition further alleged that Mother was on parole for having killed M.H.s alleged father and was in violation of her parole. The petitions were later amended to add allegations that Mother also physically abused the children and that D.M. physically abused M.H.
According to a detention report, A.R. fled from his home and called the police on May 20, 2008, after D.M. repeatedly punched him in the stomach and "knocked the wind out of him." A.R. told the social worker that D.M. punched him repeatedly for not doing an adequate job of sweeping the side of the house and that Mother said "that is what he deserved for not following directions." A.R. said D.M. hits him once or twice a week and that D.M. has hit him and his sister with his open hand, a belt, and a wooden stick. He said he wanted to live with his maternal uncle, Uncle R. M.H. told the social worker that Mother and D.M. hit and punch A.R. and that D.M. has spanked her with a belt and has hit her hand with a wooden stick. She said she wanted to live with Mother and D.M. or with an aunt. The children did not remember when they last attended school.
Mother told the social worker that D.M. has never hit the children and that her brother was the one who hit A.R. in the stomach. She said she did not discipline her children often and only believed in hitting male children. She said that her mother, who recently passed away, and her brother, Uncle R., were the childrens primary caregivers while she was serving a six-year prison term for killing M.H.s alleged father. Mother did not want the children to be placed with Uncle R. because he used to "beat her up" and was manipulative. The detention report noted the agency had received nine past referrals for the family, including one when Mother shot and killed M.H.s alleged father and A.R. witnessed the shooting. At the time of the report, the children were placed in shelter care and Mother was in jail for an alleged parole violation. The juvenile court followed the agencys recommendation and detained the children, and also ordered daily six-hour visits for Uncle R. and the children.
Mothers parole officer confirmed that Mother had been convicted of voluntary manslaughter in 2001 for shooting M.H.s alleged father in the back and killing him. Mothers parole on this offense was due to expire in April 2009.
These visits were reduced to one supervised visit a week pending further assessment of Uncle R.s home, after the agency learned that Uncle R. was arrested for assault with a deadly weapon and that a family maintenance case had been opened in 2007 after one of his children ingested a high dosage of cocaine while in his home.
A jurisdictional report stated that Mother, who was in jail for the alleged parole violation, was released from jail on June 24, 2008. A.R. did not want to visit his mother because he was scared of her. When the social worker met with M.H. and told her that Mother was out of jail, M.H.s "eyes got big and she appeared to be very frightened." M.H. said she was scared of Mother and said "thank god," when she learned Mother did not have custody of her. M.H. showed the social worker three scars on her upper arm and said that Mother scratched her, causing her to bleed. M.H. said Mother "would watch and `do nothing and laugh" when D.M. hit her. According to the report, the children were "relieved and happy" to be out of Mothers care and were living together in shelter care, where they were thriving.
A social worker met with Mother after Mothers release from jail. When the social worker asked Mother to sign a release of information so M.H. could receive therapy, Mother refused to do so, stating M.H. did not need therapy. Mother denied the abuse and told A.R. that he was a liar and was going to jail for seeking help from the police. Mother was uncooperative and confrontational with the social worker and refused to provide sufficient information for the agency to conduct a search for A.R.s alleged father. Mother also told the social worker that D.M., and not the man she had killed, was M.H.s father. When the social worker asked D.M. whether he was M.H.s biological father, D.M. did not respond immediately and turned to Mother, who yelled at him in an angry manner, stating he was the biological father. Mother became "enraged" when the social worker said she would ask the court for a paternity test and became "agitated" when asked questions relating to paternity.
Later, when a social worker asked A.R. whether D.M. could be M.H.s father, A.R. responded there was "no way" because Mother had just met D.M. the previous year. D.M. confirmed that he and Mother had been together for only one year and that Mother wanted to put his name on M.H.s birth certificate so he could care for the child.
A dispositional report provided Mothers educational history, stating she completed high school and two semesters of college. She earned 15 certifications in the construction field and was certified, and had worked, as a cabinet maker. At the time of the report, Mother was working on a documentary film about the murder rate in Oakland and violence prevention. She said she loves her children and wants them to live with her, and acknowledged in a written statement that the family needs counseling. She stated she was doing well on parole and had been found not to be in violation of her parole terms. She continued to deny that D.M. physically abused A.R.
The children had adjusted well to their placement and new schools. On August 20, 2008, they told a social worker they wanted to visit Mother. During the first supervised visit on August 25, 2008, M.H. immediately hugged Mother and cried. Mother was responsive and caring toward M.H. A.R. was hesitant to interact with Mother and sat in a chair with his arms crossed. He told her he was upset with her because she said, among other things, that he would go to jail for telling the truth. Mother brought snacks and clothes for M.H. and was "mostly appropriate" during the visits, with the exception of "a couple of incidents," including one in which she told the children they were going to come home to live with her. The visit was "highly emotional." Mother and M.H. cried, and by the end of the visit, both children told Mother they wanted to live with her. M.H. cried and screamed as she was taken to her car. In the three additional visits that occurred between August 25, 2008, and September 24, 2008, Mother was appropriate and caring and asked pertinent questions about how the children were doing in placement and at school. The children responded to her in a loving and caring manner. As of September 16, 2008, A.R. wanted to continue living with his foster parents, and M.H. was not sure where she wanted to live. Both children appeared to be developmentally on target and were receiving mental health services.
The jurisdictional report stated that the children would be at high risk of physical abuse and neglect if they were returned to Mothers care. Both children reported being physically abused while in her care, and Mother had not taken any responsibility for the abuse. Mother did not ensure the children attended school. The children lived with their maternal grandmother and Uncle R. during the six years that Mother was incarcerated and did not visit or maintain a relationship with Mother during that time. The report also noted that a social worker had made several attempts to engage Mother and D.M. in services but that both had failed to cooperate. Mother "repeatedly refused to meet" with the social worker for interviews and had completed only part of an interview. D.M. did not respond in a timely manner to a letter asking him to contact the agency to discuss the case. When he called, he was uncooperative and the social worker was unable to obtain any information. The agency recommended that the juvenile court find by clear and convincing evidence that reunification services need not be provided because Mother has been convicted of a violent felony, and because the childrens best interest would be served by implementing a permanent plan as soon as possible.
Mother and D.M. were in the courthouse on the morning of the jurisdictional hearing on September 29, 2008, but left before the hearing began. Mothers attorney provided no explanation as to why they left. He urged the juvenile court to provide reunification services to Mother despite her prior violent felony conviction, noting, among other things, that the 2001 conviction was "a bit remote" and that Mother was only 18 years old at the time she committed the offense. He argued that Mother was involved in the childrens lives and had positive visits with them, and that she was employed by a financial company working from home, and was working on a documentary film. He submitted several documents, including certificates of achievement and pictures of cabinets Mother had recently made. The childrens attorney said the children were doing very well in their current placement and had told him that morning that they wished to remain with their foster parents.
The juvenile court admitted the agencys jurisdictional and dispositional reports into evidence, sustained the amended petitions, denied Mother reunification services on the basis of her prior violent felony conviction, and placed the children outside the home. Mothers attorney objected to the introduction into evidence of a document contained in one of the reports on the grounds that it was "unclear whether the entire document is certified or not" and that it was not "adequate documentation of [Mothers] violent felony conviction." The juvenile court denied the request, finding Mother had failed to timely object to the reports, and noting that Mother admitted and acknowledged throughout the proceedings that she had been convicted of a violent felony. The juvenile court ordered one or two visits per month for Mother and for a maternal aunt the children had also asked to visit. It found Mother was "not actively involved in the development of [her] case plan" because she was "unable, unavailable, or unwilling to participate." The juvenile court also ordered a paternity test for the alleged father, D.M.
Procedural history
At the end of the hearing, the juvenile court said to the attorneys: "If . . . whoever hears from these folks first, could inform them of the finite timeframe for which an appeal and a writ must be pursued, that would be useful since theyre not here to hear it personally." On September 30, 2008, the juvenile court issued a document entitled Findings and Orders setting forth its findings and orders from the September 29, 2008, hearing. The last page of the Findings and Orders provides the date, time and location of the section 366.26 hearing and states the hearing will be contested. The record contains a proof of service dated and filed September 30, 2008, indicating the clerk of the court served all parties and their attorneys with the Findings and Orders by hand delivery or mail to their last known addresses. Mother filed a Notice of Appeal from the Findings and Order on November 25, 2008.
On December 11, 2008, this court issued an order stating in part: "The notice of appeal purports to appeal from orders that included the setting of a [section 366.26 hearing] and are therefore not appealable but may be reviewed by following procedures for issuance of an extraordinary writ. [Citations.] [¶] In the interest of justice, this court deems the notice of appeal to be a notice of intent [to seek writ relief]." On December 18, 2008, this court issued a notice stating Mother was required to file a petition on or before January 2, 2009, addressing specific errors and the issue of whether her notice of appeal, which this court deemed to be a notice of intent, was timely filed. That same day, this court issued a notice to counsel that the proceedings might be dismissed unless Mother filed a declaration on or before January 2, 2009, explaining why she did not personally sign the notice of intent.
On January 2, 2009, Mother filed a petition, requesting a stay of the section 366.26 hearing. In addition to arguing the juvenile court erred, she asserted the petition was timely filed because proper notice was not given to her as required by section 366.26, subdivision (l)(3)(A). Mothers attorney provided a declaration stating he could not get in touch with Mother after the dispositional hearing because she does not have a telephone, and that she contacted him in mid-November 2008 to inform him she wanted to contest the order setting the section 366.26 hearing. On January 6, 2009, we issued a temporary stay of the section 366.26 hearing and an order to show cause why the petition should not be granted. We asked the agency to address the issues raised in the petition, including whether the petition was timely filed. On January 20, 2009, the agency filed a brief addressing all issues.
DISCUSSION
The petition was timely filed.
When the juvenile court issues an order setting a section 366.26 hearing, it "must advise orally all parties present, and by first-class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record . . . ." (Cal. Rules of Court, rule 5.600(b) ; see also § 366.26, subd. (l)(3)(A).) Within 24 hours of the hearing, the clerk of the court must mail a notice, along with "[c]opies of Petition for Extraordinary Writ . . . (form JV-825) and Notice of Intent to File Writ Petition and Request for Record . . . (form JV-820)," to the last known addresses of all parties who were not present at the hearing. (Rule 5.600(b)(1), (2).)
All further references to the rules are to the California Rules of Court.
Although a party who wishes to challenge an order setting a section 366.26 hearing is required to file a notice of intent to file a petition for writ relief within 7 days of the date of the order if the party was present at the hearing at which the order was made, or within 12 days if the party was not present at the hearing and was notified of the order only by mail, (rule 8.450(e)(4)(A), (B)), a parent who fails to file a timely notice of intent may obtain relief from the default for good cause shown (In re Cathina W. (1998) 68 Cal.App.4th 716, 721, 722). Good cause may be established by the juvenile courts failure to give oral notice of the writ requirement to a parent who is present at the hearing, or to provide written notice of the writ requirement to a parent who was not present at the setting hearing. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838-839.)
Here, Mother was not present at the hearing when the juvenile court issued its order setting a section 366.26 hearing. Thus, the juvenile court was required to advise her of the requirement of filing a petition for extraordinary writ review by having the clerk of the court mail her a notice, along with "[c]opies of Petition for Extraordinary Writ . . . (form JV-825) and Notice of Intent to File Writ Petition and Request for Record . . . (form JV-820)," to her last known address. (Rule 5.600(b)(1), (2); § 366.26, subd. (l)(3)(A).) The record, however, shows only that the clerk of the court mailed to Mother a copy of the Findings and Orders of September 29, 2008, which contains no information relating to the filing of a notice of intent or a petition for extraordinary writ relief. Because Mother never received the notice required by statute to ensure she was aware of the need and time limit for filing a writ petition, we conclude there is good cause to deem her notice timely filed.
The agency also argues the petition must be dismissed because Mother failed to sign the notice of intent. The agency relies on rule 8.450(e)(3), which provides that a notice of intent must be signed by the party intending to file the petition, and on Lisa S. v. Superior Court (1998) 62 Cal.App.4th 604, 606-607, which dismissed a petition because the parent did not sign the notice of intent and did not show good cause for her failure to do so. The authorities on which the agency relies, however, are inapposite because here, Mother filed a notice of appeal, which this court deemed to be a notice of intent. Because a party is not required to personally sign a notice of appeal (see rule 8.400(c)(1) ["The appellant or the appellants attorney must sign the notice [of appeal]" (italics added)]), we conclude Mother is not required to show good cause for not signing the notice of intent.
Mother has forfeited her claim that the juvenile court lacked jurisdiction.
"[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (Ibid.) Mother asserts the juvenile court "had no jurisdiction to make dispositional orders" because "at the contested jurisdictional hearing on September 29, 2008, no evidence was introduced; no testimony was presented[,] . . . [the agency] did not move into evidence any reports[,]" and "[t]he court sustained the petitions on reports that had not been offered nor received in evidence." Mother has forfeited this claim because she did not raise it below. (See People v. Mendez (1991) 234 Cal.App.3d 1773, 1781-1782 [a courts "act in excess of jurisdiction is valid until set aside, and a party may be precluded from setting it aside, due to waiver, estoppel or the passage of time" (italics added)].) Although Mother objected to the courts dispositional orders on the ground that she was entitled to reunification services, and objected to the introduction into evidence of a document contained in one of the reports, she did not raise any objections relating to the lack of evidence or testimony or the agencys failure to formally introduce the reports into evidence, even when the juvenile court expressly stated it was relying on the reports to sustain the petitions and make dispositional orders. Had Mother objected, the asserted errors, if any, could easily have been corrected. Under the circumstances, Mothers failure to object precludes her from raising these issues for the first time on appeal.
The document was apparently some sort of documentation of Mothers prior violent felony conviction for shooting and killing M.H.s alleged father.
The juvenile court did not abuse its discretion in denying reunification services.
Mother contends the juvenile court abused its discretion in denying her reunification services. The contention is without merit.
Section 361.5, subdivision (b)(12), on which the juvenile court relied in denying reunification services, states that services need not be provided when the court finds by clear and convincing evidence that the parent has been convicted of a violent felony as defined by Penal Code section 667.5. Services are not to be provided under this section unless the juvenile court finds by clear and convincing evidence that reunification is in the childs best interest. (§ 361.5, subd. (c).)
Mother concedes she was convicted of a violent felony and does not dispute that section 361.5, subdivision (b)(12) applies to her. She argues, however, that she "she has made significant strives to rehabilitate herself and [is now] worthy of reunification services." She notes, among other things, that she was only 20 years old at the time of her conviction, has completed her schooling, is employed and working on a documentary relating to violence prevention, and has been doing well on parole. She notes she has had good visits with her children, who are happy to see her and told her they wanted to live with her again.
Although the above facts show Mother has made some progress since her release from prison, other facts relating to the children show that providing Mother with reunification services would not be in the childrens best interest. Mother was unavailable to parent her children for six years while she served a prison term for killing M.H.s alleged father. After being released from prison, she subjected the children to an unsafe and violent environment in which she and D.M. physically abused them. She denied there was any abuse and refused to accept responsibility for the issues that brought the family before the juvenile court. She did not ensure the children attended school. Although she acknowledged in a written statement that the family needs counseling, she failed to cooperate when the social worker attempted to engage her in services. Mother "repeatedly refused to meet" with the social worker and had completed only part of one interview at the time the jurisdictional report was prepared. She left the courthouse without explanation before the dispositional hearing took place.
Although the visits that took place in the month before the dispositional hearing went well, the children expressed fear of their Mother and did not wish to see her throughout most of the proceedings. According to their attorney, the children were doing well in their placements and had told him the morning of the dispositional hearing that they wished to remain with their foster parents. As the jurisdictional report indicated, the children were entitled to a permanent plan as soon as possible. The record fully supports the juvenile courts finding that there was no "clear and convincing evidence that reunification is in the child[ren]s best interest." (see § 361.5, subd. (c).)
DISPOSITION
The petition for extraordinary writ is denied on the merits. (§ 366.26, subd. (l)(1); rule 8.452(i)(1); see Kowis v. Howard (1992) 3 Cal.4th 888, 893-895 [written opinion on petition for extraordinary relief precludes reconsideration of or further challenge to orders in any subsequent appeal].) Our opinion is final as to this court forthwith. (Rule 8.490(b)(3).) We hereby lift the stay on the proceedings and order the juvenile court to proceed with the section 366.26 hearing.
We concur:
Pollak, J.
Jenkins, J.