Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ana L. Espana, Judge. Super. Ct. No. J518059
O'ROURKE, J.
S.H. appeals following the dispositional hearing in the juvenile dependency case of her daughter, G.H. S.H. contends substantial evidence does not support the finding that D.H. is G.H.'s presumed father. We conclude S.H. has forfeited her right to raise this contention and dismiss the appeal.
S.H. filed a notice of appeal after the jurisdictional hearing. That notice of appeal was premature because it preceded the dispositional judgment. (In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) After the dispositional hearing, S.H. filed another notice of appeal. We granted the motion of the San Diego County Health and Human Services Agency (the Agency) to consolidate the appeals.
BACKGROUND
In March 2011 the Agency filed a dependency petition for two-and-one-half-year-old G.H. The petition alleged S.H. suffered from THC dependence and mental illness, including psychosis. She admitted a history of using cocaine, ecstasy and marijuana and abusing alcohol. She was placed on a Welfare and Institutions Code section 5150 hold.
The petition listed D.H. as an alleged father. At the detention hearing, the court amended the petition by adding Jason B. as an alleged father. D.H. appeared at the hearing and requested paternity testing, visitation and voluntary services. The court granted the requests. It ordered liberal supervised visitation for D.H., and gave the Agency discretion to move to unsupervised visitation. The court ordered G.H. detained in the home of the maternal grandmother, where G.H. had lived for most of her life.
The opening brief incorrectly states the record shows "several child welfare referrals for [D.H.] as a father between the years 1991 and 2002." Those referrals were for D.H. as a child and victim.
S.H.'s paternity questionnaire named D.H. as the father and stated she was also having sexual intercourse with Jason during the same period. S.H.'s questionnaire stated G.H. had "spent some time" and "several weekends" at D.H.'s home. D.H.'s questionnaire stated that while she was pregnant, S.H. told him he was the father; G.H. had lived with him for two months in the summer of 2010; and he had supported her by providing food, clothes, diapers, toys and a place to stay.
During D.H.'s supervised visits, G.H. called him "Daddy" and they were affectionate with one another.
We refer to the maternal grandmother as the grandmother, the maternal stepgrandfather as the grandfather, and the grandmother and grandfather together as the grandparents.
Before the dependency petition was filed, D.H. provided financial support for G.H. and visited her regularly. S.H. sometimes left her in D.H.'s care. In March 2011 D.H. told the social worker he would be willing to have G.H. placed with him if he turned out to be the biological father. If not, he might nevertheless be willing to seek presumed father status and placement, but he needed to think about it. One week later, D.H. told the social worker he would pursue presumed status, and would do whatever was needed to show he could care for G.H.
The results of the paternity test, received in April 2011, showed that D.H. was not G.H.'s biological father. The social worker informed D.H. of the results and recommended he take time to consider how he wished to proceed. That evening, D.H. left a voicemail message for the social worker stating he wished to pursue custody of G.H.
On April 14, 2011, at the settlement conference for the jurisdictional and dispositional hearing, D.H. requested presumed father status (Fam. Code, § 7611, subd. (d)). S.H.'s counsel stated, "although, not opposing [D.H.]'s request..., we will be submitting the matter to the court." Counsel said S.H. was unsure whether G.H. "did in fact spend two months, in... 2010, with [D.H.]. S.H. acknowledged, however, that D.H. "had provided for [G.H.] financially." The court granted D.H's request for presumed father status, then entered a true finding on the petition.
Family Code section 7611 states: "A man is presumed to be the natural father of a child if he [¶]... [¶] receives the child into his home and openly holds out the child as his natural child." (Fam. Code, §7611, subd. (d).)
In May 2011, the grandfather, supported by S.H., requested presumed father status (Fam. Code, § 7611, subd. (d)). The court set the request for trial and granted D.H. unsupervised visitation.
A few days earlier, the social worker had told D.H. that if the court ordered G.H. placed with D.H., G.H. would need time for transition. D.H. had responded that he "had no issues with whatever you guys think is best for [G.H.]" and he "would do whatever you guys want me to do." Unsupervised and increased visitation was part of the transition process.
On June 6, 2011, the day of the pretrial status conference for the dispositional hearing, S.H. filed a Welfare and Institutions Code section 388 petition asking the court to vacate the order granting D.H. presumed father status. The court summarily denied the petition. On June 21 the court denied the grandfather's request for presumed father status. The court declared G.H. a dependent and removed her from S.H.'s custody. The court entered a paternity judgment in D.H.'s favor and ordered G.H. placed with him with family maintenance services.
The opening brief criticizes the Agency for advising S.H. "to waive her own rights to reunification services and then to wait and see whether the grandparents would be named as the child's guardians, " at the same time "the [A]gency was contemplating eventual placement—not with the grandparents—but with one of multiple alleged fathers." S.H.'s criticism is misplaced. The jurisdictional and dispositional report summarized the conversation, which occurred two weeks after the detention hearing: "[S.H.] asked what she would have to do to have [the grandmother] get guardianship of [G.H.]. This worker explained that if she wanted to waive her right to services, the Agency could possibly recommend placement with the grandparents and close the case. Despite having previously stat[ed] that she wanted services, [S.H.] said she was considering waiving her right and asked how to do so. This worker advised her to speak with her attorney. This worker did let her know though that the Agency is involved and there are potential fathers in the case, that they have a legal right to request placement. [S.H.] said that [the grandmother] took care of [G.H.] more than [D.H.] had, and if this happened she does not know if she would want to waive her right to services." At the dispositional hearing, the court ordered reunification services for S.H.
DISCUSSION
The Agency and G.H.'s appellate counsel contend because S.H. did not object to or oppose D.H.'s presumed father request in the juvenile court, she has forfeited her right to challenge the resulting finding on appeal. S.H. contends there is no forfeiture for two reasons. First, she argues that rather than joining in D.H.'s request or otherwise agreeing with the outcome, she submitted the matter to the court based on the Agency's reports and even disputed some of the evidence on which D.H. relied. Second, S.H. argues that in In re A.A. (2003) 114 Cal.App.4th 771, 778, the mother did not object to the original presumed father finding, yet her appeal was heard on the merits. We reject both arguments.
When a parent submits on the Agency's recommendation, she "endorses the court's issuance of the recommended findings and orders" (In re Richard K. (1994) 25 Cal.App.4th 580, 589) and thereby forfeits her right to complain of those findings and orders on appeal (id. at p. 590). When, on the other hand, the parent submits on the Agency's report, no forfeiture results. (Id. at p. 589; In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) A submission on the report is an agreement to the court's consideration of the information in the report as the only evidence, "permitting the court to decide an issue on a limited and uncontested record...." (In re Richard K., supra, at p. 589.)
The Agency's reports filed before the April 2011 hearing did not include a recommendation regarding D.H.'s request for presumed father status. At the phase of the hearing dealing with the request, the Agency did not rely on any reports and its counsel merely stated "the Agency is... not opposed" to the request. Additionally, D.H.'s statement that G.H. had lived with him for two months in 2010, which S.H.'s counsel questioned, appeared only in D.H.'s paternity questionnaire and not in any of the Agency's reports. Thus, it is clear that S.H. did not submit on a report, or on a recommendation. Most importantly, although S.H.'s counsel did dispute D.H.'s claim that G.H. had lived with him for two months in 2010, S.H.'s counsel expressly stated S.H. did not oppose D.H.' request.
D.H.'s counsel cited this statement in his argument to the court.
In In re A.A., supra, 114 Cal.App.4th 771, the mother, one of four appellants, contended the juvenile court had erred by finding that respondent H.O. was the presumed father of child A.A. and appellant R.B. was not A.A.'s presumed father. (Id. pp 776-777.) In the trial court, the mother had asserted that appellant R.B. was A.A.'s presumed father. (Id. at p. 778.) This assertion necessarily constituted an objection to the conferral of presumed status on H.O. because a child can have only one presumed father. (In re Jesusa V. (2004) 32 Cal.4th 588, 603; Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1139.) S.H. contends the mother in In re A.A., supra, did not object in the juvenile court to the presumed father finding, yet her appeal was heard on the merits. S.H.'s premise is incorrect. The statement in In re A.A., supra, regarding the lack of objection appears in a sentence summarizing the juvenile court's findings that R.B. was the presumed father of child R. and a third man was the presumed father of child E. The statement is unrelated to the findings that R.B. was not the presumed father of child A.A., the only child who was the subject of the appeals, and H.O. was her presumed father. (Id. at p. 778.)
Here, the grandfather's request for presumed father status, and S.H.'s support for that request, occurred after the court granted D.H.'s request for presumed father status.
"[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. [Citation.] 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. [Citation.] [¶]... [¶] [T]he appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] Although an appellate court's discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters.... Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. [Citation.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted (S.B.), superseded by statute on other grounds as stated in In re M.R. (2005) 132 Cal.App.4th 269.)
The express statement by S.H.'s trial counsel that S.H. did "not oppos[e] [D.H.]'s request" for presumed father status constituted a forfeiture. S.H. could have objected to the request; she did not. Here, unlike the situation in S.B., addressing the merits would not further the child's stability. (S.B., supra, 32 Cal.4th at p. 1294.) Also unlike the situation in S.B., this appeal does not present "an important issue of law... that has divided the Courts of Appeal." (Id. at pp. 1293-1294.) This is not one of the rare cases where it would be appropriate to exercise our discretion to excuse the forfeiture.
In light of our conclusion, we need not address the Agency's contention S.H. lacks standing.
DISPOSITION
The appeal is dismissed.
WE CONCUR: McCONNELL, P. J. IRION, J.