Opinion
H025141.
7-17-2003
In re MIA S., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. OSSIE S., Defendant and Appellant.
This is an appeal from a juvenile court dependency proceeding in which the juvenile court ordered dismissal of the dependency with custody orders awarding legal and physical custody to appellant, the mother of Mia. Appellant contends the petition failed to allege facts establishing jurisdiction. She contends the jurisdictional finding, the removal order, and the review hearing finding of detriment from return and reasonable services were not supported by substantial evidence. Appellant filed her notice of appeal after the dependency was dismissed, and challenges all the prior findings and orders made by the juvenile court since the jurisdictional hearing. We affirm.
PROCEEDINGS BELOW
This dependency began in August 1999 when then 14-year-old Mia was living with appellant, her stepfather and her two step-siblings. Appellant reported to the police that Mia had run off with her adult boyfriend when appellant and Mias stepfather discovered the two together. The boyfriend was a friend of Mias father. The boyfriend said that he was unaware of Mias age and, when he learned her true age, he dropped her off at a police station. Mia told police she did not want to go home because she was afraid her stepfather would physically abuse her. A Welfare and Institutions Code section 300 petition filed on Mias behalf described this situation and further alleged that Mias stepfather had two prior incidents of physical abuse against Mia, that he was a registered narcotics offender and had been convicted in 1997 of domestic violence against Mias mother, and that appellant was concerned Mias father would not protect her from improper relationships with older men. The petition was later amended to add allegations that the stepfather had yelled at Mia, threatening to "kick [her] ass," that Mia had smelled marijuana coming from her parents bedroom, that Mia was babysitting her siblings so much it was interfering with her schoolwork, and that she had witnessed several incidents of domestic violence between appellant and the stepfather.
After mediation and several continuances, the matter was set for a contested combined jurisdictional and dispositional hearing. The only evidence submitted was the social workers report. On February 1, 2000, the court sustained the petition under Welfare and Institutions Code section 300, subdivision (b), failure to protect. The court placed Mia with her father and ordered reunification services for appellant and visitation. In June 2000, Mia was placed in foster care and the court ordered reunification services for Mias father.
By the time of the six-month review hearing, July 25, 2000, the social worker recommended continued foster care for Mia, with continued participation in individual and family therapy, and continued reunification services for appellant. The matter was submitted, and the court made the findings and orders as recommended.
The 12-month review hearing was held January 23, 2001. The matter was submitted and the court made the recommended findings and orders, including findings that return of Mia to appellant would create a substantial risk of detriment to her physical and emotional well-being, but that there was a substantial probability that Mia would be returned to appellant by the 18-month review. The court ordered continued foster care for Mia and continued reunification services for appellant.
By the time of the 18-month review Mia had run away from her placement and the social worker considered her emotionally unstable as a direct result of the violence and extreme family conflict she had experienced. Appellants therapist opined that given Mias oppositional behaviors and appellants borderline personality disorder, they would be unable to live together. On July 26, 2001, the matter was submitted. The court made the findings and orders recommended by the social worker that return of Mia to appellant would create a substantial risk of detriment to her physical and emotional well-being and ordered termination of appellants reunification services.
Mia remained a runaway until August 15, 2001. In September 2001, the social worker filed a Welfare and Institutions Code section 388 petition for modification requesting Mia be returned to appellant. The court granted the petition, ordering family maintenance services including individual and family counseling for appellant. For the next year, services were offered to the family and the court continued to review the case.
On October 10, 2002, the social worker recommended dismissal of the dependency. Appellant told the social worker, "all of this has brought more stability to the family. Helped open [my] eyes to parenting a teenager, it has brought the family closer and the family has grown." The court dismissed the dependency and appellant was awarded sole legal and physical custody of Mia.
APPLICATION OF THE WAIVER RULE
Appellant contends the petition failed to allege facts establishing jurisdiction. She further contends the jurisdictional finding, the removal order, and the review hearing finding of detriment from return and reasonable services were not supported by substantial evidence. She contends it was an abuse of discretion to terminate reunification services to appellant at the 18-month review hearing.
Appellants notice of appeal specifically states she is appealing from the findings and orders of the court made on August 27, 2002, and October 10, 2002. These were the family maintenance review hearings during which the juvenile court made the findings and orders dismissing the dependency and awarding appellant sole legal and physical custody of Mia. Appellant seeks review not just of these last two orders, but of all the earlier orders as well. The time limits for appealing these earlier orders have expired. (See Cal. Rules of Court, rule 39.1.) Respondent contends review of these earlier orders is barred under the waiver rule described in In re Meranda P. (1997) 56 Cal.App.4th 1143. We agree.
"An unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." (In re Meranda P., supra, 56 Cal.App. 4th at p. 1150.) In In re Meranda P., the court determined application of the waiver rule did not infringe the due process rights of a mother who had claimed she was first wrongly denied counsel and then provided with ineffective assistance. (Id. at pp. 1150-1151, 1159-1160, 1163.) Meranda P. recognized that the waiver rule is not absolute, but subject to limitation if its application would violate a parents due process rights.
In re Janee J. (1999) 74 Cal.App.4th 198 explained, "to fall outside the waiver rule, defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed. To allow an exception for mere reversible error of that sort would abrogate the review scheme [citations] and turn the question of waiver into a review on the merits." (Id. at p. 209.) The Janee J. court said, "the crux of Meranda P. [is that] the waiver rule will be enforced unless due process forbids it. The case conceded the critical role in ensuring an accurate and just decision played by a capable appointed counsel (Meranda P., supra, 56 Cal.App.4th at p. 1155) but noted significant safeguards built into this states dependency statutes which tend to work against the wrongful termination of a parents right to a child even though a parent may be unrepresented or poorly represented (id. at p. 1154). Those safeguards include a focus on return of the child during the reunification period, independent judicial review every six months, and notice to a parent of all proceedings and the right to counsel at all stages. (Id. at pp. 1154-1155.) Thus in the usual case, application of the waiver rule will not offend due process." (Id . at p. 208.)
InJanee J., the court described "guidelines" for relaxation of the waiver rule to safeguard a parents rights to due process: There must be a defect that fundamentally undermines the protections of the statutory scheme; the errors must be more than mere error that might have been reversible if timely reviewed; and a claim of ineffective assistance of counsel alone is not enough to entitle the parent to relief. (Janee J., supra , 74 Cal.App.4th at pp. 208-209.)
Appellant argues "the facts of the instant case clearly trigger a due process exception to the rule, as the trial courts unlawful orders permitted Mia to block appellants ability to comply with her court-ordered reunification plan, and thus deprived appellant of the ability to avail herself of the due process protections built into the statutory dependency scheme."
Appellant cites In re Nicholas B. (2001) 88 Cal.App.4th 1126, In re Jasmine G. (2000) 82 Cal.App.4th 282, In re Julie M. (1999) 69 Cal.App.4th 41, Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, and Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, in support of various arguments she advances here. These cases are distinguishable in that all involved timely challenges to the unlawful orders in those cases. Appellant compares her case to In re S.D. (2002) 99 Cal.App.4th 1068. In S. D., the Court of Appeal reversed the termination of a mothers parental rights based on ineffective assistance of counsel at a jurisdictional hearing. (In re S.D., supra, at pp. 1083-1084.) The court held review of the parents claim was not barred by the waiver rule. The court held the mothers failure to challenge or appeal the trial courts jurisdiction over the proceedings did not waive her appellate claim that her counsel was ineffective due to counsels failure to raise the issue of the trial courts lack of jurisdiction at trial; counsel misunderstood the jurisdictional statute and failed to assert mothers right to control childs placement, and the mother was unable to recognize counsels failure to properly analyze the law. The record revealed that not only did the petition fail to allege a basis for the court to take jurisdiction, it appeared likely that a sufficient basis could not be pled and proved.
The record here differs considerably from that in S.D. It is not clear from this record that trial counsel misunderstood the jurisdictional statute. The record does not show that a sufficient basis for jurisdiction could not have been pled and proved. Furthermore, the significant safeguards built into this states dependency statutes, which tend to work against the wrongful termination of a parents right to a child, clearly did work here. Appellant asserts that these confidential juvenile courts findings and orders have an adverse impact on her reputation and her familys reputation and the order terminating reunification services to appellant poses a potential of legal prejudice to appellants rights if either of her two younger children would ever be adjudicated dependent and removed. However, unlike the mother in S.D., appellants parental rights were not terminated. Through the social workers use of the section 388 petition for modification, Mia, who turned 18 during the pendency of this appeal, was returned to appellants care and custody. Whatever the asserted shortcomings of counsel or the trial court, it cannot be said on this record that they fundamentally undermined the protections of the statutory scheme so that appellant was kept from availing herself of its protections as a whole. Thus, we conclude that application of the waiver rule to the appeal of the earlier orders in this case does not offend due process.
Appellant makes no argument regarding the findings and orders made on August 27, 2002, and October 10, 2002, the family maintenance hearings during which the juvenile court made findings and orders favorable to appellant and from which she appealed.
DISPOSITION
The findings and orders of the juvenile court are affirmed.
WE CONCUR: Premo, Acting P. J., and Bamattre-Manoukian, J.
Appellant challenges the findings and orders made from the combined jurisdictional and dispositional hearing on February 1, 2000, the six-month review hearing on July 25, 2000, the 12-month review hearing on January 23, 2001, and the 18-month review hearing on July 26, 2001.