Opinion
A150334
07-28-2017
In re P.W., et al. Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Petitioner and Respondent, v. E.W., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J14-01192, J14-01193)
E.W. (Father) contends the juvenile court improperly conditioned his visitation with his children on their legal guardian's determination of their best interests and the children's desire to visit with him. Father does not challenge the order granting guardianship. We affirm the visitation order.
I. BACKGROUND
The factual circumstances and procedural history of this dependency proceeding are set out in our earlier opinion, N.M. v. Superior Court (2016) 5 Cal.App.5th 796, in which we ruled on the petition for extraordinary relief that N.M. (Mother) had filed, seeking to set aside the juvenile court's order scheduling a permanency planning hearing under Welfare and Institutions Code section 366.26. We do not repeat that background here, but instead provide a brief recital of only the facts relevant for this appeal.
Mother does not join in this appeal.
All undesignated statutory references below are to the Welfare and Institutions Code.
P.W. and M.W. (the children) came to the attention of the Contra Costa County Bureau of Children and Family Services (Bureau) in November 2014, after Mother engaged in a physical altercation with P.W. that culminated with her putting her knees on P.W.'s stomach, pinning him to the floor, and biting him on the cheek. Father was incarcerated at the time and his conduct did not provide a basis for the dependency petition. Between 1996 and March 2014, Father had been convicted of five misdemeanors and four felonies, most recently for taking a vehicle without the owner's consent, a felony. When interviewed following the incident that led to the dependency petition, both children said they missed him.
In January 2015, the children were declared dependents of the court pursuant to section 300, subdivisions (a), (b), and (j). Four months later, in April 2015, Father was released from custody and advised the social worker he wanted to reunify with the children. Acknowledging his lengthy criminal history and past substance abuse, Father shared that he had glorified the gangster lifestyle in the past, but realized this was foolish, and was willing to do whatever was required for reunification. In an April 2015 memorandum to the juvenile court before the dispositional hearing, the social worker recommended family reunification services, advising that the children wanted to see and have a relationship with Father, and their caregiver was comfortable supervising visits. At the subsequent dispositional hearing the same month, the juvenile court granted Father supervised weekly visits and telephone calls with the children.
According to the Bureau's next status report, between May and August 2015, Father regularly attended supervised visits with the children, while successfully completing a three-month residential drug and alcohol treatment program. After he left the program, the Bureau reported, Father had some contact with his probation officer. But, between August and November 2015, it advised, he did not contact the Bureau, or visit with the children.
The Bureau's January 2016 status report advised that Father was returned to custody for a probation violation in December 2015, and had had no contact with the children since the last report. Father also had not participated in family reunification services since completing the residential treatment program in August 2015. At the January 2016 review hearing, on the Bureau's recommendation, the juvenile court terminated Father's reunification services and reduced his visitation with the children to two supervised one-hour visits monthly.
During the next review period, the Bureau reported, Father did not contact the social worker or the children. Mother also experienced a significant setback in a joint therapy session with M.W. in that period, leading the Bureau, in May 2016, to recommend termination of her reunification services and the scheduling of a section 366.26 hearing. After several continuances, a contested hearing on these recommendations concluded in August 2016, and the juvenile court set a section 366.26 hearing for December 12, 2016, granting each parent one-hour monthly visits in the interim.
Meanwhile, in May or June 2016, Father was released from custody. Between August and December 2016, the Bureau reported, Father spoke with the children by telephone four times, and the children indicated they wanted to continue this telephone contact. Father also reportedly visited briefly with the children, by chance, when they stopped by his mother's home on Thanksgiving to pick up some gifts. With these exceptions, the Bureau reported, Father had not visited with the children since completing the residential treatment program in August 2015, and the Bureau did not have an address for him.
At the section 366.26 hearing in December 2016, the juvenile court appointed the children's caregiver as their legal guardian and addressed visitation. Noting that visitation previously had been "somewhat sensitive . . . as to the kids and [Mother]," the children's counsel suggested minimum visitation for Mother of "one time per month if the kids would like to have that visitation." (Italics added.) Although Father did not attend the hearing, his counsel requested a similar visitation order for him, "where we do the caveat[,][']if the children wish to.[']" Mother's counsel asked that the guardian be permitted to decide whether a specific visit would occur, if either child objected to a visit.
Other than stating her appearance and agreeing to waive the court's reading of its findings and any irregularities, Father's counsel made no other comment on the record at this hearing.
Eventually, county counsel, representing the Bureau, proposed visits should be "[c]onducted when the guardian feels it's in the child's best interest." The juvenile court judge agreed, remarking, "It really is about the best interest of the children. And as a legal guardian, the legal guardian is put in a position of being able to make that determination. That's the whole point of being a legal guardian, stepping in that role and deciding what's in the best interest of the children." Noting that the caregiver here "ha[d] done a tremendous job," the judge thanked her for the "love[,] attention[,] and stability" she had provided the children.
Later in the hearing, the caregiver requested further guidance about her responsibilities in scheduling visitation. The juvenile court responded, "Let's say [M.W.] wants to visit with mom but [P.W.] is feeling like he really doesn't want to for whatever reason[.] [T]hen you can allow [the visit] and supervise it." Observing that the children now were teenagers, the judge continued, addressing the caregiver, "I know you know more than anyone that this has been a long, difficult journey for [P.W.] and [M.W.]." P.W., in particular, "had some struggles in terms of visiting," the judge noted, an apparent allusion to P.W.'s past refusal to visit with Mother. "If [P.W.] continues to refuse to visit and you [the caregiver] don't believe it would serve his best interest to have a forced visit, then the visit doesn't occur." But, the judge added, "I'm hopeful at some point that the kids will want to visit with mom because she's always going to be mom."
As the hearing was concluding, the Bureau's counsel asked about Father's visitation. The children's counsel reported Father had not visited her clients for about 18 months, but had had some phone contact, which might be continued. The caregiver then volunteered that Father had attended one of P.W.'s games in the past month and a half, and had seen the children briefly at Thanksgiving. Responding that this was "excellent," the juvenile court ordered "the same visitation" for Father, which the caregiver agreed to supervise. The court minute order for the hearing attached and adopted the Bureau's recommendation that "the parents have reasonable visitation, to be arranged by the guardian." The page containing the adopted recommendations also included the following handwritten order: "Visitation w[ith] mo[ther and] fa[ther] [will be a] min[imum of] [one] h[ou]r [one time] per mo[nth,] sup[ervised] by [the legal guardian,] when she determines the visits are in the best interests of the children." This timely appeal followed.
II. DISCUSSION
Father contends the juvenile court improperly delegated discretion to the legal guardian and the children in its visitation order. The Bureau contends that the visitation order was proper, and also submits that Father forfeited the issue and invited any error.
We agree Father forfeited the issue. "[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.] [¶] Dependency matters are not exempt from this rule. [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds (§ 366.26, subd. (c)(4)) as stated in M.R. (2005) 132 Cal.App.4th 269, 273-274.) Although appellate courts have discretion to excuse forfeitures, our Supreme Court has instructed that the discretion should be "exercised rarely and only in cases presenting an important legal issue. [Citation.]" (In re S.B., supra, at p. 1293.) Special care particularly is required in dependency proceedings, because they "involve the well-being of children, [and] considerations such as permanency and stability are of paramount importance." (Ibid.) Father was not present himself at the section 366.26 hearing. He acknowledges his counsel did not object to the visitation order. And he does not contend this appeal presents an important issue of law. Accordingly, adhering to our Supreme Court's guidance, we decline to excuse the forfeiture.
Even if we were inclined to excuse the forfeiture, however, we agree with the Bureau that Father affirmatively invited the error. " 'Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.' [Citations.]" (In re G.P. (2014) 227 Cal.App.4th 1180, 1193.) Here, Father claims the juvenile court erred by allowing the legal guardian to determine when visits were in the children's best interests and simultaneously suggesting the guardian properly might refuse to facilitate his visitation if the children did not wish to visit with him. But, as the Bureau notes, Father's counsel specifically requested a visitation order predicated on the children's wishes, i.e., an order "where we do the caveat[,] [']if the children wish to.['] " When Mother's counsel then suggested the legal guardian be permitted to decide whether a visit would occur if the children objected, Father's counsel remained silent, expressing no concern and proposing no alternative.
Father impliedly concedes the point because he failed to file an appellant's reply brief or otherwise contest it. --------
The record shows that Father's counsel affirmatively requested the same visitation as that afforded Mother, including the accompanying restrictions. Father, at that point, had only recently and tentatively reestablished contact with his children, having failed to call or visit for a year. He had had four telephone calls and two visits (one unplanned) with the children over the span of four months. But Father did not himself attend the section 366.26 hearing in December 2016. He also had not attended the three prior hearings (in June, July, and August). At the August hearing, the attorney appearing on behalf of Father's counsel advised that Father had not been in contact with his counsel for about three months (since May). At the December 2016 hearing four months later, Father's counsel made no statement suggesting any contact in the interim. Given Father's minimal participation in these proceedings, and minimal recent contact with the children, his counsel appears to have made a tactical decision to preserve visitation for him on conditions that were amenable to all parties. In specifically suggesting that his visitation should be similar to Mother's and should be conditioned on the children's desires, and then remaining silent when Mother's counsel suggested allowing the guardian to decide whether a visit would occur if a child objected to it, we are satisfied Father invited the error of which he now complains and cannot raise the issue on appeal.
III. DISPOSITION
The visitation order is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Streeter, J.