Opinion
Super. Ct. No. DP013642
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed in part and reversed in part.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the child.
OPINION
RYLAARSDAM, J.
L.L., mother of 12-year-old Christian L. (the child), appeals from a juvenile court judgment entered after a second permanency planning hearing (Welf. & Inst. Code, § 366.26; all further statutory references are to this code) that continued the previously established legal guardianship as the permanent plan, granted her monitored visitation with the child, terminated dependency proceedings, and ordered custody and visitation orders filed with the superior court’s family law division. Mother contends the juvenile court abused its discretion by terminating dependency jurisdiction and directing custody and visitation orders be filed in family law court. Orange County Social Services Agency (SSA) responds that mother waived these claims by stipulating to the juvenile court’s orders, the termination of dependency jurisdiction was proper, and the direction to file exit orders in the family law court constituted harmless error. We shall affirm the juvenile court’s termination of its dependency jurisdiction, but reverse the portion of the judgment transferring jurisdiction to the family law court.
FACTS AND PROCEDURAL BACKGROUND
The child and his half-siblings lived with mother and Kirk D., mother’s live-in boyfriend. Mother and Kirk frequently engaged in domestic violence in front of the children. In June 2006, Kirk physically abused one of the child’s half-siblings. SSA filed this dependency proceeding and an emergency temporary protective order was issued. Initially, mother agreed to terminate her relationship with Kirk, but later reunited with him and refused to seek a permanent restraining order.
SSA filed an amended petition and obtained an order detaining the child. The juvenile court sustained the amended petition’s allegation that mother failed to protect the child and his half-siblings from physical harm or abuse. (§ 300, subd. (b).) At the dispositional hearing, the court placed the child in SSA’s custody and approved both a visitation and a family reunification plan. SSA later placed the child in the home of Mr. and Mrs. P.
Mother complied with some aspects of her case plan and consistently visited with the child, but she refused to terminate her relationship with Kirk. At the 18-month status review hearing, the court terminated reunification services and set the matter for a permanency planning hearing.
The initial hearing was held in April 2008. SSA recommended the juvenile court find termination of parental rights would be detrimental to the child and appoint a legal guardian. The report noted mother had consistently visited with minor and that he “is eager to visit with his mother and interacts easily and affectionately with her.” The child informed the social worker “he does not want to be adopted” and, if he cannot live with his mother, “he wants to remain with his current caretakers.” The caretakers, Mr. and Mrs. P., informed the social worker they knew the child did not want to be adopted, understood the rights and obligations of a legal guardianship, expressed a commitment “to caring for the child... in whatever capacity the [c]ourt deem[ed] most appropriate,” and agreed to “support [the child’s] attachment to his birth family and facilitate visitation between [the child] and his mother and... family.”
Pursuant to the parties’ stipulation, the juvenile court found the termination of parental rights would not be in the child’s best interest, ordered legal guardianship as the permanent plan, appointed Mr. and Mrs. P. to be his legal guardians, approved a visitation plan, and continued the matter for further periodic review hearings.
In a subsequent status review hearing report, SSA recommended reinstating monitored visitation between mother and the child and requested a bonding study concerning their relationship. The child’s counselor expressed her belief “that mother’s behavior during visits may be ‘harmful’” because she was “making statements to [the child] undermining his placement and treatment” which caused him to be “more ‘anxious,’ ‘confused,’” and “hav[e] trouble sleeping.” Mother’s therapist also reported “mother believes she was misled... regarding the meaning of legal guardianship,” “has done what she needs to do in order to have the child... returned to her care,” “and wants him returned home....” The social worker reported the child’s guardians “have expressed an interest in adopting the child,” but “are also willing to remain his legal guardians, if that seems to be the best course.” However, in either event they also recognized “the child has connections to his birth family that need to be maintained....”
After a contested hearing, the court amended the visitation plan to allow only monitored visitation between mother and the child. The court also set a second permanency planning hearing.
In its report for the second permanency planning hearing, SSA recommended terminating parental rights and referring the child for adoption. The report indicated Mr. and Mrs. P. were “committed to the... plan of adoption,” but “recognize[d] that future contact between [the child] and his biological family is important to maintain.” SSA also claimed the child “said he would like to be adopted” by his legal guardians. But on the day of the hearing, the child submitted a letter to the court expressing his ambivalence about adoption and stating he “would rather live” with his mother and Kirk.
The parties then signed a stipulation agreeing the continuing parent-child benefit exception (§ 366.26, subd. (c)(1)(B)(i)) applied, thereby rendering adoption not in the child’s best interests. The parties’ stipulation also recommended dismissal of the juvenile dependency proceeding with legal guardianship maintained as the permanent plan, and that the clerk file its orders with the superior court’s family law division. Pursuant to the stipulation the court entered judgment awarding custody of the child to his legal guardians, granting mother monitored visitation, terminating its jurisdiction over the child, and directing that any modification of its orders be brought in family law court.
DISCUSSION
1. Introduction
Under section 366.3, subdivision (a), when “a juvenile court orders a permanent plan of... legal guardianship pursuant to Section... 366.26,” after “establishment of [the] legal guardianship, the court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship, as authorized by Section 366.4....” The latter statute declares, in part, “[a]ny minor for whom a guardianship has been established resulting from the selection or implementation of a permanency plan pursuant to Section 366.26 is within the jurisdiction of the juvenile court.” (§ 366.4, subd. (a); see also In re Kenneth S. (2008) 169 Cal.App.4th 1353, 1358 [“After a guardian is appointed, the juvenile court may continue jurisdiction over the child as a dependent of the court” or “terminate dependency jurisdiction” and “retain[] jurisdiction over the child as a ward of the court..., but... no longer hold[] ongoing review hearings”].)
“When a legal guardianship is established for a child, the court shall [also] make an order for visitation with the parents unless it finds by a preponderance of the evidence the visitation would be detrimental to the physical or emotional well-being of the child. (§ 366.26, subd. (c)(4)(C).)” (In re Kenneth S., supra, 169 Cal.App.4th at p. 1358.) In this case, mother acknowledges the correctness of the juvenile court’s continuation of legal guardianship as the permanent plan and its ruling on visitation. But she contends the court erred in two respects: First, by terminating its dependency jurisdiction; and second, by directing future efforts to modify custody or visitation be brought in family court. SSA disputes both contentions on the merits and also argues mother forfeited her right to challenge these orders by stipulating to them and not objecting when the court entered its rulings.
2. Termination of Dependency Jurisdiction
As noted above, the juvenile court is authorized to terminate dependency jurisdiction once a permanent plan of legal guardianship is established. Here, the court ordered a legal guardianship for the child at the first permanency planning hearing in April 2008. Although it briefly considered a proposal to change the permanent plan to adoption, it retained legal guardianship at the second permanency planning hearing based on the parties’ stipulation.
Mother asserts the juvenile court abused its discretion by terminating its dependency jurisdiction over the child on the latter occasion. She cites the trial court’s finding the parental benefit exception existed and argues both the legal guardians and the child’s therapist believed adoption was appropriate. As a result, she claims “there was no guarantee... they would be cooperative and facilitate [the child’s] visits with [her].”
But the first issue is SSA’s contention mother’s actions resulted in a forfeiture of her right to challenge the juvenile court’s termination of its dependency jurisdiction. We agree.
“[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, fn. omitted.) “But application of the forfeiture rule is not automatic,” and an appellate court has discretion to consider a forfeited claim even in dependency cases. (Ibid.) Nonetheless, this discretion “should be exercised rarely and only in cases presenting an important legal issue. [Citations.]” (Ibid.) Furthermore, in “dependency cases... the discretion must be exercised with special care” because they “‘are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code’” and “involve the well-being of children” where “considerations such as permanency and stability are of paramount importance. [Citation.]” (Ibid.)
The facts here present a strong case for application of the forfeiture rule. Before the second permanency planning hearing, counsel for all parties except the child’s father initialed and signed a form stating: “Adopt recommendation... as contained herein. [¶]... [¶] Dependent child proceedings terminated... with attached O.C. Juvenile Court custody orders.... Court orders the O.C. Juvenile Court Clerk to file the attached Custody Orders with the Clerk of the... Orange... County Superior Court Family Law Division.” A second document initialed by all counsel except father’s attorney also recommended “The permanent plan of [¶]... [¶] legal guardianship with a specific goal of... dismissal of dependency... [¶]... [¶] is appropriate and is ordered as the permanent plan....” These documents present the type of “unambiguous stipulation” we have previously held results in barring a party from challenging a juvenile court ruling or finding on appeal. (In re Dani R. (2001) 89 Cal.App.4th 402, 405; see also In re Eric A. (1999) 73 Cal.App.4th 1390, 1394-1395.)
Mother acknowledges the forfeiture rule applies to the juvenile court’s termination of its jurisdiction, but maintains we should consider her argument on its merits because it “presents an important legal issue....” We are unpersuaded.
In re S.B., supra, 32 Cal.4th 1287 recognized an appellate court may consider a forfeited claim on its merits if it presents “an important legal issue. [Citations.]” (Id. at p. 1293.) In Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, this court exercised its discretion to consider a parent’s appellate challenge to the juvenile court’s denial of reunification services that she had arguably waived “because it [was] purely a question of law. [Citations.]” (Id. at p. 1188.) By contrast, this case involves the juvenile court’s application of its discretionary authority to the facts before it. A juvenile court is expressly authorized to terminate dependency proceedings after establishing a legal guardianship subsequent to a permanency planning hearing. (§§ 366.3, subd. (a), 366.4, subd. (a); In re Kenneth S., supra, 169 Cal.App.4th at p. 1358.) Mother concedes the decision whether to maintain or terminate dependency jurisdiction is a matter falling within the juvenile court’s discretion. (In re K.D. (2004) 124 Cal.App.4th 1013, 1018; In re Twighla T. (1992) 4 Cal.App.4th 799, 806.) Thus, whether the juvenile court properly exercised its discretion to terminate its dependency jurisdiction in this case is the type of circumstance falling squarely within the forfeiture rule’s rationale “to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]” (In re S.B., supra, 32 Cal.4th at p. 1293.)
But even on the merits, mother’s argument fails. She contends that “with legal guardians who want to adopt and [the child’s] therapist who does not see the value of the [mother-son] relationship, there is no guarantee that the visitation the juvenile court ordered... will be honored and facilitated.”
Mother relies on In re K.D., supra, 124 Cal.App.4th 1013 which held the juvenile court’s termination of its dependency jurisdiction after establishing a permanent plan of legal guardianship was “fatally inconsistent with its finding that it was in K.D.’s best interest to maintain the parental bond and with its order that visits occur....” (Id. at pp. 1018-1019.) K.D. is distinguishable. It involved a mentally retarded, drug addicted mother and a legal guardian planning to move out of state who had unsuccessfully “suggested that communications such as letters, telephone calls and video messages would be appropriate visitation....” (Id. at p. 1019.) In terminating its dependency jurisdiction, the juvenile court “advised the parents that if visitation did not take place they could file a section 388 petition.” (Ibid.) The appellate court reversed, noting “[t]he court’s advice regarding bringing a section 388 petition was inadequate, especially given the mother’s limitations, to ensure that regular visits continue so the bond the psychologist described and the court deemed beneficial... could be maintained.” (Ibid.)
In re Twighla T., supra, 4 Cal.App.4th 799 presents a more analogous situation. It rejected a claim similar to the one presented here, noting “substantial evidence strongly supported the conclusion that visitation was not likely to be a serious problem in light of the guardian’s cooperative attitude toward visitation,” and “[i]f a problem nevertheless were to develop in the future, appellant would have access to the court through the court’s jurisdiction over the guardianship itself. [Citations.] The fact that appellant might have tactical legal advantages if the juvenile court’s dependency jurisdiction were retained was not sufficient to overcome the trial court’s conclusion that continuing dependency jurisdiction was not necessary under the circumstances.” (Id. at p. 806.)
Contrary to mother, the record does not suggest the legal guardians would obstruct her ability to visit with the child. They repeatedly acknowledged the child’s need to maintain ties with his biological relatives regardless of the permanent plan ultimately chosen by the court. At the contested status review hearing in November 2008, mother even admitted she had been able to communicate with Mrs. P. about scheduling visits with the child. It is true that complaints by the child’s therapist led to the juvenile court’s decision to limit mother to monitored visitation. But at the November 2008 status review hearing, mother admitted she had broken the rules by talking to the child about the case and encouraging him not to take prescribed medication. In this appeal, she does not challenge the juvenile court’s decision limiting her to monitored visitation.
This case is analogous to Twighla T. and distinguishable from the circumstances presented in K.D. Thus, even on the merits, the juvenile court did not abuse its discretion by terminating its dependency jurisdiction over the child.
3. Order Directing the Filing of Custody Orders in Family Law Court
Next, mother contends the juvenile court exceeded its jurisdiction by ordering that any modification of its custody and visitation orders be filed in family law court. SSA again cites the forfeiture rule and, on the merits, argues the ruling amounted to harmless error.
Mother first claims she “did not stipulate to the issuance of family law orders or the filing of those orders in the family law court.” But a review of the quoted portions of the documents cited above reflect that she indeed stipulated to terminating “[d]ependent child proceedings” with directions that the “Juvenile Court Clerk... file the attached Custody Orders with the Clerk of the... Orange... County Superior Court Family Law Division.”
But SSA acknowledges the juvenile court lacked statutory authority to refer its custody and visitation orders to the family court. As noted, a juvenile court establishing a legal guardianship solely as a result of a permanency planning hearing in a juvenile dependency matter retains jurisdiction of the minor “as a ward of the legal guardianship....” (§§ 366.3, subd. (a), 366.4.)
By contrast, section 362.4 declares, “[w]hen the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court... and proceedings for dissolution of marriage, for nullity of marriage, or for legal separation, of the minor’s parents, or proceedings to establish the paternity of the minor child... are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue... an order determining the custody of, or visitation with, the child. [¶] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court.... [¶] If no action is filed or pending relating to the custody of the minor in the superior court..., the juvenile court order may be used as the sole basis for opening a file in the superior court of the county in which the parent, who has been given custody, resides. The court may direct the parent or the clerk of the juvenile court to transmit the order to the clerk of the superior court of the county in which the order is to be filed. The clerk of the superior court shall, immediately upon receipt, open a file, without a filing fee, and assign a case number.”
In re Kenneth S., supra, 169 Cal.App.4th 1353 recognized “family court jurisdiction after termination of dependency jurisdiction applies to custody issues arising between two parents, and not issues arising from dependency guardianships. [Citations.]” (Id. at pp. 1357-1358.) “In contrast to dependency guardianships, if a parent retains or regains custody of a dependent child, the juvenile court may terminate its jurisdiction and issue custody, visitation or protective orders (exit orders). Exit orders become a part of any proceeding between the child’s parents for paternity, nullity, dissolution or legal separation in superior court. (§ 362.4.)” (In re Kenneth S., supra, 169 Cal.App.4th at p. 1358.) Thus, where “the juvenile court ha[s] established a guardianship for the children, it d[oes] not have the authority to terminate its jurisdiction over the dependent children and refer the matter to family court. [Citations.]” (Id. at p. 1359.)
This case involves a guardianship arising from a permanency planning hearing under section 366.26, not one arising from a custody or visitation dispute between the child’s parents. In re Andres G. (1998) 64 Cal.App.4th 476 described when a statutorily unauthorized juvenile court ruling should be shielded from attack by consent of the parties. “‘[A]n act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. [Citations.]’ [Citation.] [¶] Whether a party who has sought or agreed to an action in excess of a court’s jurisdiction is estopped to complain depends on the importance of the irregularity and considerations of public policy. [Citations.] [¶] Reviewing courts have repeatedly allowed acts in excess of jurisdiction to stand when the acts were beneficial to all parties and did not violate public policy [citation], or when allowing objection would countenance a trifling with the courts. [Citation.] [¶] On the other hand, courts have voided acts in excess of jurisdiction when the irregularity was too great, or when the act violated a comprehensive statutory scheme or offended public policy. [Citations.]” (Id. at pp. 482-483.)
In Andres G., after finding clear and convincing evidence that substantial danger to the health and safety of two minors existed if they were returned to their parents, the juvenile court, pursuant to a procedure routinely employed by it and the county department of social services, placed the minors under the custody of the department but directed they be detained in their parents’ home. Finding the procedure lacked statutory authorization, the Court of Appeal reversed the ruling even though the parent who appealed the ruling had consented to the procedure. “[W]hether consented to, sought by, or happily accepted by the parties and the juvenile court, [the procedure] systematically contravenes a comprehensive statutory scheme operating in an area of special social interest and has the effect of reconfiguring the responsibilities of the court and Department in a manner not contemplated by the Legislature.” (In re Andres G., supra, 64 Cal.App.4th at p. 483.)
Although the order terminating juvenile court jurisdiction and transferring jurisdiction over future decisions concerning custody and visitation to the family law court was not the result of a systematic procedure, it clearly violated the statutorily-mandated procedure. We conclude mother may challenge this aspect of the judgment because the juvenile court’s ruling “violate[s] a comprehensive statutory scheme [and] offended public policy. [Citations.]” (In re Andres G., supra, 64 Cal.App.4th at p. 483.)
SSA claims the ruling did not prejudice mother because, under section 366.3 and 366.4, “the juvenile court continued to have jurisdiction over the guardianship itself and the [child] regardless of the termination of dependency and the subsequent filing of the exit orders in family law court.” That may be, but the juvenile court’s judgment places jurisdiction of the case in the family law court. Failure to correct this aspect of the judgment could result in the jurisdictional confusion that occurred in In re Kenneth S., supra, 169 Cal.App.4th at pp. 1356-1358.) Therefore, we shall reverse this portion of the juvenile court’s judgment to protect against that eventuality.
DISPOSITION
The portions of the judgment directing the clerk to transmit the judgment to the family law court and providing that any modification of the juvenile court’s custody and visitation orders be filed in that court are reversed. The juvenile court is directed to vacate the portions of its judgment transferring the case to the family law court and to insert in the judgment a provision declaring it retains jurisdiction over the child as a ward of the legal guardianship. The family law court shall then return the record in this case to the juvenile court. As so modified, the judgment is affirmed.
WE CONCUR: SILLS, P. J., MOORE, J.