Opinion
F086541
02-27-2024
In re E.H., a Person Coming Under the Juvenile Court Law. v. SYDNEY H. et al., Defendants and Appellants. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Sydney H. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Hector B. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. 20CEJ300241-5 Kimberly J. Nystrom-Geist, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Sydney H.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Hector B.
No appearance for Plaintiff and Respondent.
OPINION
THE COURT[*]
Appellants Hector B. (father) and Sydney H. (mother) are the parents of E.H. (the child), who is the subject of this dependency case. Father and mother appealed from the juvenile court's orders issued at the Welfare and Institutions Code section 366.26 hearing on June 28, 2023, which resulted in their parental rights being terminated. After reviewing the juvenile court record, both father and mother's court-appointed counsel informed this court they could find no arguable issues to raise on father or mother's behalf. This court granted father and mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Both father and mother filed letter briefs alleging various complaints regarding the child's removal and lack of opportunities to bond with the child.
We conclude both father and mother failed to address the termination proceedings or set forth good cause showing any arguable issue of reversible error arose from the termination hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
FACTUAL AND PROCEDURAL HISTORY
On August 15, 2022, and then as first amended on August 17, 2022, the Fresno County Department of Social Services (department) filed a petition on behalf of the newborn child, alleging that mother had an ongoing substance abuse problem rendering her unable to care for the child, that she did not have adequate supplies and stable housing, and that she exhibited aggressive and paranoid behavior. It further alleged that mother had failed to reunify with her four older children and her parental rights as to them were terminated in June of 2022, placing the child at similar risk of harm. Father was listed as the alleged father.
See case No. F084673.
Mother filed an ICWA-020 reporting Cherokee Indian heritage.
At detention on August 18 and 22, 2022, the juvenile court found prima facie evidence to support the petition and detained the child. Father was not present at the hearing. Jurisdiction and disposition was set for October 12, 2022.
On September 21, 2022, the department sent ICWA-030 notice to the Bureau of Indian Affairs and three Cherokee tribes, including the maternal and paternal lineage information. The department later received a letter of non-membership from the Cherokee Nation.
Father made his first appearance on October 12, 2022, and was appointed counsel. Father stated he had no known Indian heritage. The juvenile court ordered the department conduct further inquiry into maternal and paternal Indian heritage. Jurisdiction and disposition were continued to November 2, 2022.
The department's jurisdiction and disposition report recommended the child be removed from mother and that she be bypassed for services, due to her parental rights being terminated with her four older children (§ 361.5, subd. (b)(10) &(11)). It recommended father be bypassed due to his alleged father status (§ 361.5, subd. (a)). The department reported there was an active three-year restraining order protecting mother from father following domestic violence, which did not expire until March 28, 2025. The child was placed in a relative's home with her older half siblings.
At the November 2, 2022, hearing, father requested genetic testing, which the juvenile court granted. It also gave the department discretion to offer father services if he was the biological father. The jurisdiction/disposition hearing was continued to January 12, 2023.
At the January 12 and 13, 2023, jurisdiction and disposition hearing, father was present and elevated to biological father status. The petition was amended to reflect father's status on its face, mother was denied reunification services under section 361.5, subdivision (b)(10) and (11), and father under 361.5, subdivision (a). The juvenile court ordered monthly supervised visits for both mother and father. Both mother and father were advised of their writ rights in open court and the matter was set for a section 366.26 hearing on May 10, 2023.
On May 26, 2023, mother filed a section 388 petition for modification, asking that the juvenile court return the child to her care under family maintenance services or offer her reunification services. Mother claimed she has maintained her sobriety and was attending AA/NA meetings, at her own expense. The petition was summarily denied, as the juvenile court found much of mother's supporting documentation predated the existing order.
The report filed by the department for the section 366.26 hearing recommended that the court find the child adoptable and terminate mother and father's parental rights. The child was doing well in the relative caretaker's home with her half siblings, and the caretakers were willing to adopt her. Mother maintained regular visits and was appropriate with the child; father visited twice, in March and April 2023, and was appropriate with the child. The department inquired of the paternal relatives of any Indian heritage, which they denied.
At the contested section 366.26 hearing held June 16, 2023, the department submitted on its report and counsel for the child submitted on the department's recommendation. Father testified that he had not been given many visits with the child and had not had a chance to bond with her.
The social worker testified that visits between mother and the child went well, but that the child's relationship with mother was like "[a] friendly visitor." The social worker described the child as not being "too familiar" with mother and showed no distress when visits ended.
Mother testified that she thought the child should be with her and that the two of them had a bond. Mother believed it would be detrimental to terminate her parental rights because the child deserved to be with her mother.
The department requested that mother and father's parental rights be terminated and that the child be found to be adoptable. Following a lengthy discussion between the juvenile court and the department concerning the ICWA inquiry that was made, the department requested a brief continuance in other to remedy and clarify statements in its report concerning inquiry.
Proceeding on the balance of the arguments, counsel for the child asked that the juvenile court adopt the recommendations of the department to terminated mother and father's paternal rights and find the child adoptable. Counsel cited the child's young age and the fact that her care provider wished to adopt her. Counsel argued no beneficial parent/child relationship exception existed.
Counsel for father submitted on the issue of adoptability, but noted that father was in disagreement with the department's recommendation.
Counsel for mother also objected and stated that mother believed that the beneficial parent/child relationship exception did apply, despite the fact that the child was only in mother's care for one day before she was removed. Counsel argued mother was consistent in her visits, and she was able to comfort the child and care for her at those visits.
The juvenile court continued the case to June 28, 2023, in order to allow the department to provide notice to the Bureau of Indian Affairs and update its documentation on Indian ancestry inquiry. All parties would then have an opportunity to respond.
At the continued section 366.26 hearing held on June 28, 2023, father and mother were both present. The juvenile court found the department's inquiry into Indian heritage reasonable and found the Indian Child Welfare Act (ICWA) did not apply. The juvenile court found the child adoptable, evaluated the In re Caden C. (2021) 11 Cal.5th 614 factors, and terminated mother and father's parental rights.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
By the time a case reaches the section 366.26 hearing, the juvenile court has determined, based on extensive evidence, that the dependent child cannot be safely returned to the parent's custody. Father and mother had an opportunity to challenge any of the evidence contained in the department's disposition and review reports regarding the evidence supporting the child's removal, relative placement considerations, and visitation schedules, etc. Failure to challenge the evidence operates as a forfeiture, preventing the parent from challenging it at a subsequent hearing. Such is the case here. At no time did father or mother or counsel object to the visitation schedules they now complain of. Consequently, the reports were entered into evidence to be relied on by the court in making its rulings. Father and mother are now precluded from challenging that evidence on appeal.
At a termination hearing, the juvenile court's focus is on whether it is likely the child will be adopted and if so, to order termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, the court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the circumstances listed in section 366.26, subdivision (c)(1)(B) (exceptions to adoption). Father and mother do not challenge the sufficiency of the evidence supporting the court's finding the child is likely to be adopted. Nor do they claim the court's termination order was in error because the beneficial parent-child relationship exception to adoption applied. Rather, both mother and father contend they should have been given additional visitation in order to bond with the child. We conclude father and mother fail to show good cause that this issue merits additional briefing.
Having reviewed father and mother's letter briefs, we find neither has made a showing of good cause that an arguable issue exists. (Phoenix H., supra, 47 Cal.4th at p. 846.) Neither letter brief furnishes a valid argument with supporting legal authorities for the purported claims of error. (See In re Sade C., supra, 13 Cal.4th at p. 994 [parents must" 'present argument and authority on each point made' "].) Nor do father or mother show that this claim of error, assuming it is true, constitutes a basis for reversing the underlying orders. Our review of the challenged orders confirms counsel's determination that no arguable issues exist.
In sum, father and mother have not raised any arguable issues stemming from the section 366.26 hearing. Further, though we are not required to, we have reviewed the record as it relates to the hearing under section 366.26, and we have found no arguable issues for briefing. (Phoenix H., supra, 47 Cal.4th at pp. 841-842.) Accordingly, we dismiss the appeal.
DISPOSITION
This appeal is dismissed.
[*] Before Levy, Acting P. J., Franson, J. and Pena, J.