Opinion
G055153
01-22-2018
In re DAVID G., JR., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. DAVID G., SR., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Sue, Deputies County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP025936-001) OPINION Appeal from orders of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Sue, Deputies County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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INTRODUCTION
This is the second appeal by David G. (David Sr.) regarding his son, also called David (David Jr.). David Jr. was detained in February 2015 at age 16 months after his mother, Ciera S., who was heavily into drugs, fed him a marijuana brownie to make him stop fussing. The dependency process dragged on far beyond the prescribed time for a child of David Jr.'s age, and, despite the recommendation of Orange County Social Services Agency (SSA) that David Jr. live with his father, Ciera regained custody of David Jr. in October 2016, under a family maintenance program.
David Sr. appealed the custody order, and we very reluctantly affirmed, in a two-to-one decision. Although the entire panel agreed the case had been mishandled to David Sr.'s detriment, the majority concluded the applicable standards of review - substantial evidence and abuse of discretion - militated against second-guessing the juvenile court's decision.
In re David G., Jr. (Aug. 23, 2017, G054221) [nonpub. opn.].
In May 2017, the juvenile court terminated dependency jurisdiction for David Jr. and issued exit orders. David Sr. has appealed from these orders, on several grounds.
Our hands are tied by the rules of appellate procedure in this appeal even more firmly than they were in the first one. Not only do the standards of review work against David Sr. for the most part, but he raised no objection to the orders at any time before the court issued them. In fact, if he did not exactly stipulate to the orders, he (through his counsel) indicated no problem with them. Accordingly we must affirm the May 2017 orders.
FACTS
The detailed recitation of the initial facts in this case can be found in our prior opinion. Briefly, David Jr. was detained in February 2015 at age 16 months because of Ciera's drug use. David Sr., had been deported to Mexico about the time David Jr. was born, and he learned of his child's detention through text messages. The child's paternal grandparents became David Jr.'s foster parents, while Ciera served a jail sentence and went through drug treatment programs.
Early in the dependency process, SSA recommended that David Sr. obtain custody of his son in Mexico, and everything appeared to be on track to make this happen. As detailed in our prior opinion, however, the reunification process dragged on far longer than the applicable statutes permitted, through no fault of David Sr., and became enmeshed in a tangle of bureaucratic red tape.
In October 2016, David Jr. was returned to Ciera's custody under a family maintenance plan. Ciera was required to keep testing for drug use, and she was to receive in-home coaching to improve her parenting skills. SSA was ordered to prepare a new schedule for visits in Mexico and for telephone calls with his father while David Jr. was with Ciera. A majority of this court affirmed the juvenile court's October 2016 decision, with great reluctance, because of the applicable standards of review.
After ordering David Jr. returned to Ciera's custody in October 2016, the court held a case plan review hearing the following month. SSA reported that Ciera was doing well with her sobriety and there were no perceived problems with David Jr. David Sr. was in telephone contact with his son, and the grandparents were planning to bring the child to Mexico for a visit in December. The court approved the case plan, which allowed visits in Mexico every three months (or more often if the grandparents could manage it), as well as telephone calls or Skype sessions twice a week. The court also ordered visits for David Jr.'s grandparents twice a month and weekly Skype sessions with him.
The court held another hearing in March 2017. The court reviewed SSA's most recent report, which showed Ciera had made substantial progress on all fronts. She had completed a counseling program and an outpatient substance abuse program, her drug tests were negative, she had a sponsor, she was working on her parenting skills with an in-home coach, and she was in compliance with her probation. SSA recommended setting a progress review hearing to address termination of dependency. We do not have a reporter's transcript of the March 2017 hearing; the minute order indicated that the case was continued to May 2017 for a contested review, requested by Ciera's counsel.
SSA filed an addendum report dated May 2, 2017, regarding David Jr. and his half-sibling, who was also living with Ciera under a family maintenance plan. The report included five e-mails to the social worker from the in-home parenting coach, covering the period between March 9 and April 20, 2017. These e-mails conveyed generally favorable reports of Ciera's progress, although the coach acknowledged that David Jr. could be a trying and hard-to-manage child. (He was, at this point, three-and-a-half years old.) A social worker visited the home in early April and found both children "happy and thriving." The social worker noted that Ciera had completed all her programs, including drug testing, and was in compliance with the terms of her probation. Accordingly, SSA recommended termination of supervision and issuance of exit orders.
The juvenile court held a hearing on May 3, 2017. All parties were represented by counsel. David Sr.'s counsel stated, "Your Honor, prior to going on the record, I've been liaisoning [sic] with county counsel. We worked out a visitation schedule. There's certainly no issue with respect to the schedule, but having spoken to [David Sr.], after the schedule was drawn up, he indicated to me that he has had some difficulty in communicating with [Ciera]. So what I wanted to request on his behalf is that he's going to be offered two hours per month of FaceTime. If we could specify [Ciera] makes, I guess, best efforts to allow for that FaceTime to occur, either on Friday or Saturday after 5:00 p.m., since [David Sr.] will be available. If there's a schedule like that, [David Sr.] feels more confident that he'll be able to utilize the FaceTime that he's being offered by the court." The parties and the court proceeded to discuss a schedule for David Sr.'s FaceTime sessions. The court allowed his counsel to add language to the visitation order to the effect that "the most appropriate FaceTime scheduling for [David Sr.] would be Friday or Saturdays after 5:00 p.m., as can be accommodated by [Ciera's] schedule." Everyone submitted on this modification of the proposed orders. The minute order of May 3 noted in particular that David Sr.'s counsel submitted.
FaceTime is an application that allows video-calling on Apple electronic devices. (See http://www.digitaltrends.com/mobile/how-to-use-facetime/ [as of Jan. 18, 2018].)
The final judgment granted legal and physical custody to Ciera and included the following language as part of the visitation order: "If [David Sr.] is in the county of [David Jr.'s] residence, [David Sr.] will have six hours per week unsupervised visits. [David Sr.] and [David Jr.] will have a minimum of 2 hours per month Skype / FaceTime. [Ciera] is to provide [David Sr.] with an up-to-date phone number for [David Jr.]. FaceTime on Friday / Saturday after 5pm as can be accomodated [sic] by [Ciera]."
The last sentence is hand-written.
The proposed order of May 3, 2017, refers to attached visitation and custody orders, but none is attached.
DISCUSSION
David Sr. has raised several issues on appeal. He acknowledges that he failed to object to the orders at the May 2017 hearing, but argues that this failure did not result in forfeiture of the issues underlying this appeal. He contends that the juvenile court conducted the hearing under the wrong code section; the court should have proceeded under Welfare and Institutions Code sections 361.2 and 366 instead of section 364. He also contends that there was insufficient evidence to support the court's determination continued supervision was no longer necessary and that the court abused its discretion when it terminated jurisdiction. Finally, he contends the juvenile court abused its discretion when it granted Ciera sole physical and legal custody.
All further statutory references are to the Welfare and Institutions Code.
I. Correct Code Section
We can address a pure question of law raised for the first time on appeal when the facts are undisputed. The application of the correct code section to the proceedings in the juvenile court is just such a question. (In re Charles G. (2017) 14 Cal.App.5th 945, 949 and fn. 2.)
Section 364, subdivision (a), provides, in pertinent part, "Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing." (Italics added.) Section 364, subdivision (c), provides, in pertinent part, "After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300 , or that those conditions are likely to exist if supervision is withdrawn." (Italics added.)
Section 361.2, subdivision (a), provides, in pertinent part, "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child."
Section 361, subdivision (c), sets forth the circumstances, such as substantial danger to physical health or emotional well-being or sexual abuse, under which a court may order a dependent child to be taken from the physical custody of a parent with whom the child resides.
Most California appellate courts have held that section 364 applies to dependent children who have been removed from their parents' custody and later returned as well as to children who have never been removed. (See, e.g., In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154, fn. 9 (Aurora P.); In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.) As the court observed in In re N. S. (2002) 97 Cal.App.4th 167, the Welfare and Institutions Code requires the juvenile court to hold hearings, under either section 366.21 or section 364, regarding whether to continue agency supervision of all dependent children, even those who have been returned to parental custody after an initial out-of-home placement. Section 361.21 applies only when the child is out of the parent's custody. Therefore section 364 must apply to a child in a parent's custody regardless of when he or she arrived there; otherwise there is no statutory mandate for holding hearings regarding continued supervision of children who have been removed but were subsequently returned to parental custody. (Id. at pp. 171-172.)
The court in this case ordered the removal of David Jr., in February 2015. David Sr. did not ask the juvenile court for custody at that time or at any time thereafter. (See In re Adrianna P. (2008) 166 Cal.App.4th 44, 55 "[B]efore the child may be placed in out-of-home care, the court must first consider placing the child with the noncustodial parent, if that parent requests custody."].) Instead, he acquiesced in David Jr.'s placement with his grandparents (David Sr.'s parents) as foster parents. David Jr. was never placed with his father so section 361.2 does not apply in this case. (See In re A.A. (2012) 203 Cal.App.4th 597, 605-606.)
II. Forfeiture
David Sr. acknowledges that forfeiture rules apply in juvenile dependency appeals. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) He argues, however, that they do not apply in this case because SSA had the burden of proof and because he raises questions of law.
We have addressed the question of law David Sr. has raised on appeal. As discussed above, the court used the correct code section, section 364, when it issued the May 2017 order.
David Sr. also argues that forfeiture does not apply when SSA bears the burden of proof, citing several cases in which a parent secured review of a finding of adoptability without raising the objection in the lower court. Allocating the burden of proof is a matter of statutory construction, which we review de novo. (Aurora P., supra, 241 Cal.App.4th at p. 1157.)
As the Aurora P. court explained at length, allocating the burden of proof depends on, first, the nature of the status quo and, second, the party trying to upset the status quo. (Aurora P., supra. 241 Cal.App.4th at pp. 1157-1164.) "'The burden of proof is to law what inertia is to physics - a built-in bias in favor of the status quo. [Citation.] [Fn. omitted.] That is, if you want the court to do something, you have to present evidence sufficient to overcome the state of affairs that would exist if the court did nothing.' [quoting Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1388.] The burden of proof is allocated 'functionally, assigning the role of "plaintiff" to the party seeking to upset the status quo.' [Citation.]" (Aurora P., supra, 214 Cal.App.4th at p. 1159.)
The status quo of section 364 is the termination of jurisdiction. "The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." (§ 364, subd. (c), italics added.) Therefore SSA would have the burden of proof only if it sought to upset the status quo by continuing jurisdiction or supervision.
In this appeal, it is David Sr., not SSA, who seeks to upset the status quo of termination of jurisdiction. He would therefore have the burden of proof. (See Aurora P., supra, 214 Cal.App.4th at pp. 1161-1162 [minors seeking to persuade court to depart from statutory presumption in favor of termination had burden of proof].) In his reply brief, David Sr. conceded that SSA did not bear the burden of proof. He therefore abandoned his argument that the burden of proof somehow excused his forfeiture.
III. Remaining Issues
David Sr. contends insufficient evidence supported the juvenile court's conclusion that supervision over David Jr. was no longer necessary and that the court abused its discretion when it terminated jurisdiction and awarded custody to Ciera.
But we cannot review these issues. The transcript of the May 3, 2017 hearing, makes it plain that David Sr. had no objection to the orders before the court at the time. His counsel had spoken to him about them, and the only modification he requested was a more specific schedule for his FaceTime sessions. Moreover, SSA recommended termination of dependency in March, six weeks before the hearing where it was considered; David Sr. cannot maintain he was surprised by the turn of events. The record indicates that David Sr. consented to the orders, even if the consent was halfhearted. He cannot now raise objections that could have been dealt with in the juvenile court. (See In re Richard K. (1994) 25 Cal.App.4th 580, 590 ["by submitting on the recommendation without introducing any evidence or offering any argument, the parent waived her right to contest the juvenile court's disposition since it coincided with the social worker's recommendation. He who consents to an act is not wronged by it."])
David Sr. strongly implies, without actually saying so, that his counsel's representation of him at the May 2017 hearing was somehow defective. He repeatedly complains that he did not have an opportunity to object to the termination and exit orders, even though he was represented by counsel, who told the court that he had been in touch with David Sr. and had his authority to proceed. "An attorney's authority to represent his purported client is presumed in the absence of a strong factual showing to the contrary." (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13.) There are no such facts in this record. --------
DISPOSITION
The orders of May 3, 2017, are affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.