Opinion
F085769
05-26-2023
D.D., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
D.D., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Carlie M. Flaugher, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Super. Ct. Nos. 19CEJ300233-3, 19CEJ300233-4, 19CEJ300233-7, Kimberly J. Nystrom-Geist, Judge.
D.D., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Carlie M. Flaugher, Deputy County Counsel, for Real Party in Interest.
OPINION
THE COURT [*]
Maternal grandmother D.D. (grandmother), in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) from the juvenile court's orders terminating guardianship of her granddaughters, T.H. (born Oct. 2013), Ta.H. (born Dec. 2014), and Tal.H. (born Sept. 2018) (collectively, the children), and bypassing her for reunification services pursuant to Welfare and Institute Code section 361.5, subdivision (b)(6) (severe physical abuse). Grandmother asks this court to reinstate the guardianship and order reunification services. Having concluded grandmother's writ petition fails to comply with the content requirements of rule 8.452 and that she consented to the termination of the guardianship, we dismiss the petition.
All rule references are to the California Rules of Court.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Petition and Detention
On January 19, 2022, grandmother was granted guardianship of the children through the juvenile court after the parents failed to reunify with them.
On May 2, 2022, the department filed a section 387 supplemental petition on the children's behalf, alleging in count s-1 that they were at substantial risk of suffering serious physical harm due to grandmother's use of inappropriate corporal discipline. The children's sibling, who was also a dependent child and in grandmother's care, had reported grandmother made T.H. eat her own feces as punishment for defecating herself. Additionally, the sibling and Ta.H. disclosed grandmother hit them with a belt, dragged them by the hair, and cursed and yelled at them. The children were placed in protective custody on the day of the disclosures.
The supplemental petition alleged three additional counts (s-2, s-3, and s-4), which were later withdrawn pursuant to a settlement agreement.
On May 3, 2022, the juvenile court held a detention hearing and ordered the children detained. The court ordered the department to offer grandmother parenting classes, a mental health evaluation and recommended treatment, and a domestic violence assessment and recommended treatment. Additionally, the court ordered supervised visitation and set a combined jurisdiction and disposition hearing.
Jurisdiction, Disposition, and JV-180
In its jurisdiction and disposition report, the department recommended the allegations in the supplemental petition be found true, grandmother be denied family reunification services pursuant to section 361.5, subdivision (b)(6), the parents not be provided with additional reunification services, and that a section 366.26 hearing be set. The report indicated a family reunification panel was held to discuss the appropriateness of providing grandmother with reunification services and it was determined that she met the criteria for bypass of services pursuant to section 361.5, subdivision (b)(6). Although grandmother had denied she made T.H. eat her own feces, she admitted she had put soiled underwear in her face several times and told her, "this [is] something a dog would do."
On July 13, 2022, the juvenile court held an initial jurisdiction and disposition hearing. Grandmother's counsel requested a contested hearing. The court set a settlement conference and set the matter for contest.
On October 5, 2022, the department filed an addendum report reiterating its previous recommendation. The report detailed grandmother's visitation with the children and her compliance in services. Grandmother had been participating in weekly supervised visits. During one visit, there was an incident in which grandmother provided the children with electronic devices, which was against the supervising agency's guidelines. As a result, the supervising agency placed grandmother's visits on hold until a child family team meeting could be held. After addressing the concerns at the meeting, grandmother's visits resumed and there were no further concerns noted. Regarding services, grandmother had completed a parenting class, a domestic violence assessment, and a mental health assessment. It was recommended grandmother participate in a child abuse intervention program and ongoing therapy, which she had already been doing.
On November 2, 2022, the parties participated in a settlement conference, which was continued, and the contested jurisdiction and disposition hearing which was originally set for November 2022 was moved to February 2023.
On January 18, 2023, the department filed another addendum report, again reiterating its original recommendation. Although grandmother had been participating in services and appeared to have made outwardly changes, T.H. continued to struggle with her relationship with grandmother.
On January 25, 2023, the parties participated in a second settlement conference and the date for the contested jurisdiction and disposition hearing was confirmed.
On February 17, 2023, the department filed a Request to Change Court Order (JV-180) form, asking the juvenile court to change the order granting legal guardianship of the children to grandmother on the grounds that they were at substantial risk of suffering serious physical harm by grandmother. The department stated grandmother used inappropriate corporal discipline, including yelling and cursing at the children, calling them derogatory names, and making one of the children eat her own feces. The department requested the court terminate legal guardianship and order a section 366.26 hearing. The department stated the requested order was in the best interests of the children because there was no reasonable means to protect them without removing them from grandmother's care, and the children were placed with a relative who was willing to adopt them.
On February 21, 2023, the juvenile court held the contested jurisdiction and disposition hearing. However, grandmother and the department informed the court they had reached a resolution whereby the department would amend the language in the s-1 count allegation, withdraw three counts, and provide grandmother with supervised visits in exchange for grandmother submitting to jurisdiction and agreeing to the request in the department's JV-180 (termination of the guardianship). The s-1 count allegation was amended to read as follows:
" '[D.D.], legal guardian/maternal grandmother of [the children] has failed to provide adequate care, supervision, and protection for the minors in that she used inappropriate discipline on the minors. [¶] On or about April 14th, 2022 [grandmother] put a pair of [T.H.]'s soiled underwear on [T.H.]'s face while scolding her for continued accidents. [Grandmother] has also dragged the minors by their hair and hit them with a belt as a form of punishment. Additionally, [grandmother] has yelled at the minors and made such statements to them, such as "Stop acting like you're a dummy. What part didn't you understand? Why are you acting stupid?" and, "Stop acting retarded."' [¶] All three minors were removed from [grandmother's] care and custody. Subsequently, [grandmother] no longer wants to maintain legal guardianship of the minors; therefore, the minors are now left without provision for care."
Grandmother's attorney stated they were submitting on jurisdiction and informed the juvenile court that she reviewed the waiver of rights (JV-190) with grandmother. Grandmother made an unsworn statement, denying "[a]ll of that stuff that was said." She said she did everything she could to take care of the children and try to keep them in a safe environment. The court expressed concern over grandmother's statement and stated as follows:
"THE COURT: Thank you for your statement. [Grandmother's attorney], your client did just indicate that everything that was said was not true, which causes the [c]ourt great concern. As this was an unsworn statement and we are here today for a contested hearing, your client absolutely has the right to that contested hearing and to submit whatever her evidence is. Can you let me know how you would like to proceed, please[?]
"[GRANDMOTHER'S ATTORNEY]: Your Honor, I did again confirm with my client that the brief statement she made is the only statement that she wanted to make to the [c]ourt. Again, we did speak more than once regarding trial. This was not an easy decision for her to make. If it was something she could easily walk away from, a settlement would have been reached months ago. Again, we've taken many conversations to go over today's agreement. I'm confident that she is ready to move forward and submit on the language agreement that we've reached. Right now I did again confirm with her that her brief statement was all she wanted to present to the [c]ourt and is ready to move forward.
"THE COURT: All right. Thank you. [Grandmother], I received a [JV-190]-I'll just hold it up so you can see it. Are these your initials on this page?
"[GRANDMOTHER]: Yes, it is.
"THE COURT: And is this your signature on the second page?
"[GRANDMOTHER]: Yes, it is."
The juvenile court then reviewed the form with grandmother and summarized the rights she was waiving and the consequences of submitting on the report, which included an advisement that she may not be offered or provided reunification services. Grandmother indicated she understood and agreed to submit on the report. The JV-190 form included grandmother's attorney's signed declaration stating she explained and discussed with grandmother her rights and the consequences of submitting on the report. The court asked grandmother's attorney if she consented to grandmother's decision to submit on the report, which she did consent to.
Next, the juvenile court reviewed the department's JV-180 form and confirmed that the parties were in agreement with the requested orders. Grandmother's counsel responded, "We are in agreement with the outcome. I want to make clear for the [c]ourt and on behalf of my client, that we do not agree to the exact reasons stated by the [d]epartment, but we are in agreement with the orders that are being requested." Thereafter, the court found the supplemental petition as amended true, granted the department's JV-180 terminating the guardianship, and set a section 366.26 hearing.
On February 22, 2023, grandmother filed a notice of intent to file a writ petition.
DISCUSSION
I. Extraordinary Writ Petition
As a preliminary matter, we address the adequacy of grandmother's writ petition. Rule 8.452 sets forth the content requirements for an extraordinary writ petition. "The petition must be liberally construed and must include: [¶] (A) The identities of the parties; [¶] (B) The date on which the superior court made the order setting the hearing; [¶] (C) The date on which the hearing is scheduled to be held; [¶] (D) A summary of the grounds of the petition; and [¶] (E) The relief requested." (Rule, 8.452(a)(1)(A)-(E).) Additionally, "[t]he petition must be verified," and it "must be accompanied by a memorandum." (Rule, 8.452(a)(2)-(3).) In keeping with rule 8.452(a)(1), we will liberally construe a writ petition in favor of its adequacy where possible, recognizing that a guardian representing him or herself is not trained in the law. Nevertheless, the petitioner must at least articulate a claim of error and support it by citations to the record. Failure to do so renders the petition inadequate in its content and the reviewing court need not independently review the record for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
Grandmother's writ petition is inadequate. Grandmother filled out a Petition for Extraordinary Writ (JV-825), but failed to provide adequate information or wrote in unintelligible answers. Under the section of the form asking for the relief requested, grandmother checked the "other" box and wrote, "witness more proof restate legal guardianship." Under the section asking for the grounds under which the order was erroneous, she wrote, "See written response on addition[al] paper paragraph second and third and four." Under the summary of the factual basis for petition, she wrote, "See Attach: document." Finally, under the area asking for the request being made, she checked two boxes-she drew in her own box stating, "No reunification services," and checked the box for terminating dependency.
Grandmother attached a brief statement to her petition. She explained why her petition had not been filed on time, stating she did not receive the "paperwork" on time, had been helping her children and grandchildren, and had been ill and overwhelmed with the department. She claimed the department had been discriminating against her family, violating their civil rights, and not doing their job. Additionally, she noted she had "been trying to reach out more counseling and more therapy." In closing, she invited this court to contact her at her phone number or text her with any questions. She did not provide a summary of the factual basis for the petition, identify a claim of error, or make any citations to the record. Overall, grandmother's writ petition was incoherent and difficult to interpret.
We conclude grandmother's writ petition is inadequate for review. However, even if we were to review her writ petition for possible errors, we find none. The record clearly reflects she consented to the termination of the guardianship.
II. Waiver
The department contends grandmother waived her contentions because she failed to raise them below, submitted on jurisdiction, and was in agreement with terminating the guardianship. We agree.
A guardian does not waive writ or appellate review of the juvenile court orders by submitting on a report. (In re Richard K. (1994) 25 Cal.App.4th 580, 589.) "By submitting on a particular report or record, the [guardian] agrees to the court's consideration of such information as the only evidence in the matter." (Ibid.) "Notwithstanding a submittal on a particular record, the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved." (Ibid.) "In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion." (Ibid.) On the other hand, a guardian who submits to a recommendation, does waive writ or appellate review. (Ibid. ["submittal on the recommendation dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders"].) "He who consents to an act is not wronged by it." (Id. at p. 590.) Additionally, submitting pursuant to a negotiated settlement constitutes an implied waiver of the right to appeal the underlying subject of the settlement. (In re N.M. (2011) 197 Cal.App.4th 159, 168.)
Here, grandmother very clearly consented to the department's request to terminate the guardianship as part of the settlement agreement. The JV-180 form was amended in court to reflect grandmother and her attorney's agreement with the department's request. Her attorney expressly stated they were in agreement with the orders that were being requested, but not the underlying facts. The juvenile court instructed the judicial assistant to include in the minute order that grandmother agreed to the termination of the guardianship and the setting of a section 366.26 hearing, but did not agree to the department's factual basis. The court reiterated grandmother's agreement at least three times. At no point did grandmother object to the court's statements. Thus, by consenting to the requested order, we conclude she waived her argument.
To the extent grandmother also challenges the bypass of reunification services, we find she also waived that claim. Grandmother signed a JV-190 form, waiving her rights and demonstrating her understanding that she may not be provided with reunification services if she submitted on the report. Her attorney confirmed she had discussed with grandmother the rights she was waiving and the consequences. The juvenile court did the same and reminded grandmother it was the department's recommendation that she not be provided with services. Grandmother stated she understood and still agreed to submit on the report. Accordingly, we find she also waived any challenge to the bypass of reunification services.
At oral argument, grandmother for the first time argued trial counsel coerced her into agreeing to the termination of the guardianship. This was not included in her petition, nor does it appear in the record below. We hear her allegation and concern, but explain that it is improper to make a legal argument for the first time at oral argument. It is because this was not raised in her petition for extraordinary writ that we do not address the issue. (People v. Thompson (2010) 49 Cal.4th 79, 110, fn. 13 [it is improper to raise an argument for the first time at oral argument]; see also CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1. [a reviewing court is bound by the record as it is presented].) Moreover, grandmother appears to be requesting a "do-over" stating a desire to start again at "square one" without alleging any error by the lower court. Absent evidence of court error, we are not empowered to provide this as a remedy.
DISPOSITION
The petition for extraordinary writ is dismissed.
[*] Before Poochigian, Acting P. J., Smith, J. and Meehan, J.