Opinion
NOT TO BE PUBLISHED
Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Super. Ct. No. SJ11263. Hideo Chino, Commissioner.
IRION, J.
Alejandra T. seeks review of orders terminating her reunification services regarding the dependency of her son, Patrick T., and referring the case for a Welfare and Institutions Code section 366.26 hearing. She contends the court denied her due process by not allowing her to call her therapist to testify out of order at a jurisdictional hearing. We deny the petition.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 23, 2004, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Patrick under section 300, subdivision (b), alleging he was at substantial risk of serious harm because of domestic violence between his parents and Alejandra's mental illness. The juvenile court sustained the petition and ordered Patrick's father, Richard M., and Alejandra to comply with the provisions of their reunification plans.
At the six-month review hearing on January 3, 2005, the court found neither parent had complied with their case plan requirements and terminated services. One year later, on January 3, 2006, Alejandra petitioned under section 388, seeking reinstatement of services. At the 18-month review hearing on January 25, the court granted the parents six more months of services. On September 12 it placed Patrick in Alejandra and Richard's custody. But on November 7, the Agency filed a supplemental petition under section 387, alleging Patrick had multiple bruises on his face consistent with grab marks. After a jurisdictional and dispositional hearing on January 19, 2007, the court dismissed the section 387 petition, removed Patrick from Richard's custody, placed him with Alejandra and ordered the Agency to provide her with family maintenance services.
On April 10, 2007, the Agency filed an additional supplemental petition under section 387, alleging Alejandra was no longer able to provide adequate care to Patrick because on March 26 she tested positive for methamphetamine, yet denied drug use. The court made a prima facie finding on the petition, ordered Patrick detained and ordered Alejandra to undergo a psychological evaluation and participate in the Substance Abuse Recovery Management System program.
In a letter dated November 6, 2006, Alejandra's therapist said he had begun treating Alejandra in November 2005 and she was doing very well, working on expressing her emotions and expressing herself more clearly and improving her listening skills. He further stated that when he saw Patrick and Patrick's younger brother, they always appeared well-dressed, well-fed and relaxed and they played with the toys available and showed no signs of abuse. In a letter dated May 18, 2007, the therapist reiterated these opinions, but stated when Alejandra is under stress she is likely to be reactive, emotional and impulsive and use poor judgment. He said, however, that he did not believe she posed any risk to her children.
At the jurisdictional hearing on September 10, 2007, the court allowed testimony out of order by one of Alejandra's witnesses, but denied her request to call her therapist to testify out of order. After the Agency presented evidence and testimony, Alejandra's counsel stated he had no other evidence to present on the issue of jurisdiction. After considering the evidence and argument, the court found the allegations of the petition true.
During the dispositional hearing on September 11 and 17, 2007, Alejandra's therapist testified he disagreed with Alejandra's psychological evaluation, which recommended that Patrick not be returned to her. He disagreed with the diagnosis in the evaluation that Alejandra had a schizotypal personality disorder. He opined she instead had some histrionic and obsessive compulsive features. He said she suffered from depression and bipolar disorder and had conflicts with people, but she was receiving therapy and medication. He had observed her with Patrick and watched him become more responsive to her. He did not believe she posed a risk to Patrick
After considering the evidence and argument, the court removed Patrick from Alejandra's care and placed him in foster care. It terminated services and set a section 366.26 hearing.
Alejandra petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.
DISCUSSION
Alejandra contends the juvenile court violated her right to due process when it did not allow her to call her therapist at the jurisdictional hearing. However, the court did not deny a request to allow the therapist to testify. It only denied Alejandra's request for the therapist to testify out of order before the Agency presented its case.
At the beginning of the jurisdictional hearing, Alejandra requested to call two witnesses out of order. The court allowed the first witness to testify. Alejandra's counsel then requested calling Alejandra's therapist out of order. The court decided instead to have the Agency begin its case-in-chief. After the Agency rested its case, Alejandra's counsel did not call the therapist to testify about statements attributed to him contained in the social worker's report or to present rebuttal evidence. The therapist did testify, however, during the dispositional hearing. "The essence of due process is fairness in the procedure employed . . . ." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) We see no due process violation on these facts.
Moreover, Alejandra did not object when the court decided not to take the therapist's testimony out of order, but to begin the Agency's case-in-chief. "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 re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) 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.] . . . [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Forfeiture applies to claims of statutory error and to claims of violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th 193, 198.) Alejandra did not object when the court denied her request to take the therapist's testimony out of order and she did not offer his testimony in rebuttal after the Agency rested. Thus, she has forfeited her argument.
Further, Alejandra cannot show the result would have been any different had her therapist been allowed to testify out of order during the jurisdictional phase of the hearing. The court stated:
"I've reviewed the psychological evaluation and the evaluation is quite clear that she's [Alejandra's] not in a position to assume custody, despite the fact of [the therapist's] testimony and his recommendations, which I don't believe are appropriate under the circumstances."
Alejandra has not shown there is any likelihood of a different result even if the court had allowed the therapist to testify earlier in the proceedings. (People v. Watson (1956) 46 Cal.2d 818, 836; In re S.B. (2005) 130 Cal.App.4th 1148, 1162.)
DISPOSITION
The petition is denied.
WE CONCUR: NARES, Acting P. J., McDONALD, J.