Opinion
NOT TO BE PUBLISHED
APPEAL from the orders of the Superior Court of Los Angeles County, No. CK75161, D. Zeke Zeidler, Judge.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant M.J.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant J.J.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
J.J. (father) and M.J. (mother) appeal from the orders of December 9, 2010, terminating parental rights to Jose J., Evelyn J., and Jonathan J. under Welfare and Institutions Code section 366.26. Father contends termination of parental rights to Jose and Jonathan without a finding of detriment violated due process. Mother’s sole contention is her parental rights must be restored if father’s parental rights are restored. As father did not object on due process grounds in the dependency court, he has forfeited the contention that termination of parental rights to Jose and Jonathan was improper, and there is no basis for excusing the forfeiture. The contention also fails on the merits, because the requisite finding of detriment was made. Because no argument is made by parents regarding termination of parental rights to Evelyn, they are deemed to have abandoned their appeal on that issue. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Accordingly, we affirm the orders.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
Jose, born in 1995, Evelyn, born in 1999, and Jonathan, born in 2002, (the children) were born to mother and father, who were married. The children and their half-sister, Y., born in 1992, lived with parents. Father inflicted domestic violence on mother and Y. in the children’s presence. He was convicted of battery on mother and willful child cruelty of Y. in 1996. He abused mother again in 2006 and 2008. Father physically abused Jose. Father hit Jonathan on his back with his open hand. Father sexually molested Y. several times per week for two to three years. He molested her while she was in the bed she shared with Jonathan, who was aware of the molestations. Mother did not protect Y. from father’s molestations.
Y. had a different father.
In late October 2008, the children were detained from parents by the Department of Children and Family Services (the Department) and a section 300 petition was filed. On November 24, 2008, father was taken into custody after admitting he sexually molested Y. He was convicted of sexual abuse, sentenced to three years in state prison, and ordered to register as a sex offender. Father remained incarcerated throughout the rest of the proceedings.
On February 18, 2009, the dependency court sustained the following allegations concerning the children, under section 300, subdivisions (b), (d), and (j). Father sexually abused Y., and mother failed to protect Y. or the children. Father’s sexual abuse endangered Evelyn. Mother’s failure to protect placed the children at risk. The dependency court stated Jose and Jonathan were not at risk of being sexually abused by father. The dependency court dismissed the allegation father’s physical violence against mother placed the children at risk of harm.
On April 1, 2009, the dependency court declared the children dependents of the court. Father, who was in custody, and his attorney were present at the hearing. Father asked the dependency court to return the children to mother’s custody. The dependency court found “by clear and convincing evidence that a substantial danger exists to the children’s physical and or mental health. The Department provided reasonable services to prevent removal.” Custody was taken from parents and given to the Department for suitable placement. Family reunification services were ordered, and father was ordered to complete domestic violence counseling and sex abuse counseling for perpetrators, among other programs. Father was advised of his right to appeal the findings and orders. He did not appeal.
Mother appealed. The judgment was affirmed on February 4, 2010. (In re J.J., Jr., B215364.)
Father failed to reunify with the children, and, on June 24, 2010, the dependency court set the matter for a hearing under section 366.26 on December 2, 2010. Father was advised that to preserve his right to appeal the findings and orders made at the hearing, he must file a notice of intent to file a writ petition. Father did not file a notice of intent to file a writ petition.
On December 9, 2010, the section 366.26 hearing was held. Father was present in custody. Jose, Evelyn, and Jonathan wanted to be adopted. The foster parents wanted to adopt them. Parental rights were terminated.
DISCUSSION
Father contends termination of his parental rights violated due process because the dependency court did not make a finding, under section 361, subdivision (c), that parental custody would be detrimental to Jose and Jonathan. (Cf. Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256 [termination of parental rights under section 366.26 comports with due process, because compliance with the substantive and procedural requirements of the dependency statute establishes parental unfitness by clear and convincing evidence].) We conclude the contention was forfeited and, in any event, is not meritorious.
“A parent’s failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court.” (In re Elijah V. (2005) 127 Cal.App.4th 576, 582; accord, In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [even constitutional rights may be forfeited “‘“by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”’ [Citations.]”]; In re S.B. (2004) 32 Cal.4th 1287, 1293 [“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 Dakota H. (2005) 132 Cal.App.4th 212, 221 [a “party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court”].)
In dependency cases, discretion to consider forfeited claims “must be exercised with special care[.]” (In re S.B., supra, 32 Cal.4th at p. 1293.) “[T]he appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.” (Ibid. [the forfeited issue involved interpretation of a statute and had divided the courts of appeal]; In re M.R. (2005) 132 Cal.App.4th 269, 272 [the forfeiture was excused in order to clarify a recent statutory amendment].) Father asks us to exercise discretion to consider the issue but does not contend an important legal issue is presented. We decline to excuse the forfeiture.
In any event, the contention lacks merit, because the dependency court made the requisite finding under section 361, subdivision (c). Section 361, subdivision (c) provides in pertinent part: “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive[:] [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.”
The dependency court found by clear and convincing evidence a substantial danger existed to Jose’s and Jonathan’s physical and or mental health and found the Department provided reasonable services to prevent their removal and, accordingly, ordered Jose and Jonathan removed from father’s custody. Section 361, subdivision (c) requires no more.
Father contends that, even if the requisite finding was made at the dispositional hearing, the finding was not supported by substantial evidence because the dispositional finding was inconsistent with findings at the jurisdictional hearing. “[His] assault on the validity of the [dispositional] finding comes too late.... [A]ppellate jurisdiction is dependent upon the filing of a timely notice of appeal. [Citations.] ‘An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed.’ [Citations.]” (In re Megan B. (1991) 235 Cal.App.3d 942, 950.) We have no jurisdiction to review father’s contention.
DISPOSITION
The orders are affirmed.
We concur: TURNER, P. J., MOSK, J.