Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 75850
Kline, P.J.
J.L. appeals from orders of the San Mateo County juvenile court terminating his reunification services and establishing long-term foster care as the permanent plan for his son, C.M. He contends the court improperly delegated to the minor the decision whether to have visitation with appellant. We shall affirm the judgment.
STATEMENT OF THE CASE AND FACTS
This case began with a petition filed on July 7, 2006, when C.M. was 14 years old, alleging that C.M. came within the provisions of Welfare and Institutions Code section 300, subdivision (d), due to sexual abuse by appellant. The petition alleged that appellant had been sharing a bed with C.M. and had been sexually abusing him for four years, touching his penis and buttocks under his clothing while in bed and, in May 2006, digitally penetrating C.M.’s anus. According to the petition, C.M. refused to return to appellant’s home. C.M.’s mother had not been part of his life since he was two years old and her whereabouts were unknown.
According to the detention report, C.M. was taken into protective custody after reporting the abuse to his friend’s mother, who took him to report it to the police. C.M. had been staying at the friend’s house and did not want to go home to appellant, but denied that he had run away and said appellant knew where he was staying. He told the police detective and social worker that he did not feel safe at home, that his father hits him in the face when he comes home late, and that his father touches his private parts under his clothing in bed every week or so. Appellant denied any inappropriate touching. He told the social worker C.M. had been hanging out with “bad” people and not following rules, and had been suspended for defacing property. When appellant punished him by making him help with hauling garbage, C.M. left appellant’s home. Appellant said he had filed a missing persons report and had been looking for C.M., but the police had not been helpful. He reported that C.M. had had encopresis in the past. The social worker reported that C.M. was “visibly distraught” and in need of counseling, but that appellant seemed “sincere in his convictions and his denial of the allegations.”
At the detention hearing on July 10, 2006, the court detained C.M. and ordered supervised visitation for appellant.
An amended petition was filed on July 28, 2006, adding an allegation of serious physical harm (§ 300, subd. (a)), that appellant had physically abused C.M. on a weekly basis for several years, hitting him with his hands and a belt on the face, arms and legs, and causing bruises to C.M.’s body. According to the jurisdiction/disposition report, the new allegation resulted from C.M.’s report to the police detective and social worker that appellant disciplined him by hitting him on the face, arms and legs with his hand, a stick or a belt. C.M. also further clarified the sexual abuse allegations, explained that he and appellant had shared a bed for the past three years, since moving into a one-bedroom apartment, and stated that he left home about a month before he was taken into protective custody because he “ ‘couldn’t take it anymore.’ ”
Appellant had obtained custody of C.M. in 1996, the child having been removed from his mother’s custody in Florida due to physical abuse. Appellant reported that because of C.M.’s history of encopresis, appellant had to give C.M. medication anally when the child was three or four years old and C.M. had had a rectal examination by a doctor, but these were the only times C.M. was “touched in that way.” Appellant told the investigating police officer that C.M. is a “ ‘liar’ ” with many behavior problems, that C.M. fabricated the molest allegation because appellant threatened to send C.M. to Mexico if C.M. continued to come home late, and that appellant believed C.M. had been coached by the friend’s mother with whom C.M. stayed when he left home. Similarly, he told the social worker that the molest allegation was “ ‘a flat-out lie’ ” and expressed anger that the police did not help bring C.M. back after he began to stay at the friend’s house, “yet they believed [C.M.] and this ‘ghetto family’s’ accusations of molest, and arrested him.” Appellant believed that C.M.’s behavior problems, including the encopresis, prevented appellant from maintaining full time work and led to them having to move from a larger apartment to their present one. He was angry that C.M. had “ ‘turned his back’ ” on him after he had done so much for C.M. He said that he had tried to get help with C.M. from police and other authorities, had gone to therapy with C.M. and wanted what was best for his son, but recognized he could not care for him at this time because C.M. is “ ‘out-of-control.’ ” He told the social worker he wanted reunification services and was willing to go to a support group to discuss C.M.’s behavior problems, but did not believe he needed anger management or parenting education, and would not participate in services until C.M. “ ‘apologizes for what he did.’ ” Appellant stated that it was “ ‘fine’ ” if C.M. did not want to see him but that he had “ ‘a lot of questions’ for his son concerning the ‘false’ allegations.”
The principal of C.M.’s middle school reported that C.M. was “a ‘very troubled child’ ” who was uncooperative and disruptive at school and had problems with truancy and vandalism. Appellant was frequently called in for conferences but did not know how to deal with C.M., yelling at him, telling staff to call the police, and never implementing at home the rules and consequences suggested at the conferences. Staff suspected abuse at home but did not feel they had sufficient cause to make a report.
C.M. did not want to see or talk to his father. He wanted to live with the friend’s mother or a named friend of appellant’s, but was “okay” with going to a foster home.
The social worker found C.M.’s statements about the abuse to be “consistent and believable,” noting that appellant provided no explanation for sharing a bed with his adolescent son, took no responsibility for the current situation, had “a difficult time modulating his anger towards” C.M., and appeared to view C.M. with “only negative feelings.” The proposed case plan included reunification services for appellant and supervised visitation “only with the child’s consent.”
On August 22, the court continued the matter to October 4, 2006, for a contested jurisdictional hearing, at which it ordered C.M. to be present. The court ordered supervised visitation “if minor agrees.”
An addendum report, filed on September 28, 2006, related that C.M. had been moved to a group home after it was determined he needed a higher level of care because of behavioral problems related to proper use of the bathroom. Appellant had been participating in a parenting education program but had not followed through with therapy or referrals to an anger management program. The counselor at C.M.’s middle school reported that appellant refused to participate or permit C.M. to participate in counseling services the school recommended, “ ‘denied all responsibility for raising’ ” C.M., and repeatedly told school staff he was “unwilling to continue caring for his son.” The social worker stated that because appellant had been dishonest in saying he had made every effort to involve C.M. in mental health and other supportive services, she suspected he was also “attempting to mislead the Agency in his denial of abuse and molest.” The social worker again recommended visitation “only with the child’s consent.”
On October 4, 2006, appellant signed a waiver of rights and submitted the petition on the social worker’s reports. The court declared C.M. a dependent child and ordered out-of-home placement, and again ordered supervised visitation “only with the child’s consent.”
On October 5, 2006, a petition “amended to conform to in-court findings of 10/04/2006” was filed. The section 300, subdivision (a) allegation was amended to allege that appellant’s physical abuse consisted of hitting C.M. with his hand and a belt on the buttocks, and that C.M. alleged this resulted in bruises. An allegation of failure to protect (§ 300, subd. (b)) was added, based on appellant refusing to take C.M. home and his mother’s whereabouts being unknown. The allegation under section 300, subdivision (d), was amended to state that C.M. alleged he has been sexually abused by appellant, appellant denies the allegation, and C.M. refused to return to appellant’s home.
On October 25, 2006, the court filed amendments to its findings and orders, which stated, among other things, that visitation was to be supervised and “only with the child’s consent/permission.”
The six-month review report, filed on March 28, 2007, stated that C.M. was “doing well” in his group home, having formed strong relationships with staff and other children; was doing better in school; had been diagnosed with Attention Deficit Disorder; and was participating in group and individual therapy. In early November 2006, appellant told the social worker he was making progress on his reunification plan, including weekly therapy, but seemed “very frustrated with the process and the Department,” and said he “did not understand how his son could have control over whether or not the father gets to see him.” C.M. told the social worker he did not want any contact with his father. When she spoke with appellant about this in late November, appellant asked her to tell C.M. the things the court wanted him to do and “why he should even bother if the ball is in the child’s court.” As of December, appellant’s therapist was closing his case because appellant had missed too many appointments and they were not making progress. In January 2007, asked whether he might consider returning to appellant’s home at any point in the future, C.M. said “he would rather live in the group home until he turned eighteen then return home to live with his father.” The social worker stated that C.M. “has steadfastly refused to have any contact with the father including telephone contacts and written communication. The father has repeatedly asked the undersigned for visitation with the child, but as per the court orders no visitation is to occur without the child’s consent. The child refused to come to today’s hearing because he did not want to see his father in the Courtroom. [¶] . . . [¶] The child has stated to the undersigned on multiple occasions that he will refuse to go home to live with the father and that he does not want to have any contact with the father.” The report again recommended visitation “only with the child’s consent” and, at the hearing on April 3, 2007, the court so ordered.
Although this is the direct quotation from the report, in light of the consistent statements by C.M., throughout the record, that he did not want any contact with his father, it appears the report erroneously used the word “then” rather than the word “than.” This is confirmed by the statement in a subsequent report that C.M. had “reiterated on multiple separate occasions that he has no desire to return to the father’s care and that he wants to stay in the group home or a foster home until he is eighteen.”
The 12-month review report, filed on September 21, 2007, related the group home social worker’s statements that C.M. was “doing very well,” was “one of the most consistently well behaved boys in the home,” and had had no reported incidents of encopresis since moving to the group home. The current and previous social workers felt family therapy would be “extremely inappropriate at this time due to the child’s severe negative reaction to seeing or having any contact with the father” and forcing C.M. to participate in it would most likely “exacerbate the effect of the abuse” and cause C.M. to “regress the progress in his treatment.” C.M. had accepted gifts the social worker brought him from appellant and agreed to have his photograph taken for appellant, but “steadfastly refuses to have any contact with the father in any respect.” C.M. had “reiterated on multiple separate occasions that he has no desire to return to the father’s care and that he wants to stay in the group home or a foster home until he is eighteen.” Appellant was reportedly “very frustrated,” believing he had been “wrongly ‘convicted of being sexual molester,’ ” and feeling C.M. was refusing to see him because he was “embarrassed for all of the lying he has done since the case was opened.”
The report recommended that appellant’s reunification services be terminated and C.M. be placed in long-term foster care because “the consistency of the child’s statements regarding not wanting contact with the father over the last twelve months indicate to both the undersigned and the child’s counselor at the group home that the child was abused before he was removed” and the child had “flourished in the group home and is developing socially, academically and emotionally in marked contrast to his life before being removed as reported by the father.” It was recommended that C.M. be placed in long-term foster care and that there be no contact with appellant.
On October 2, 2007, the court terminated appellant’s reunification services, ordered no contact between appellant and C.M., and ordered C.M. placed in long-term foster care.
On October 25, 2007, appellant filed a notice of appeal from the October 2, 2007 findings at the 12-month review.
DISCUSSION
Appellant argues that the October 2, 2007 orders must be reversed because the trial court improperly gave C.M. complete control over whether visitation would occur. A trial court’s delegation to a child of complete discretion over visitation is an abuse of discretion. (In re Julie M. (1999) 69 Cal.App.4th 41, 48-49.)
The orders providing for visitation only with C.M.’s consent were not made at the hearing from which this appeal is taken, but rather at the jurisdiction and review hearings on August 22 and October 4, 2006, and April 3, 2007. Under the usual rules governing review of juvenile court orders, appellant would not be able to challenge these prior orders on the present appeal.
“Section 395 provides in relevant part: ‘A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment . . . .’ ‘A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.’ (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) An appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed. (Ibid.) ‘Permitting a parent to raise issues going to the validity of a final earlier appealable order would directly undermine dominant concerns of finality and reasonable expedition,’ including ‘the predominant interest of the child and state . . . .’ (In re Janee J. (1999) 74 Cal.App.4th 198, 207.)” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
In response to our query of the parties whether this “waiver rule” precludes appellant from now challenging the visitation orders, appellant argues the rule should not be applied because the trial court’s error was “of due process proportions.” Respondent, not surprisingly, disagrees.
We explained in In re Janee J., supra, 74 Cal.App.4th at page 208, that the waiver rule “will be enforced unless due process forbids it.” (Accord, In re M.F. (2008) 161 Cal.App.4th 673, 682.) In order to avoid the waiver rule, “there must be some defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole,” and “defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed.” (In re Janee J., at pp. 208-209.) “To allow an exception for mere ‘reversible error’ of that sort would abrogate the review scheme (§§ 366.26, subd. (l), 395) and turn the question of waiver into a review on the merits.” (In re Janee J., at p. 209.)
In re Meranda P. (1997) 56 Cal.App.4th 1143, applied the waiver rule to preclude a mother’s challenges, based on claimed deprivation of the right to counsel and ineffective assistance of counsel, to orders antedating the parental termination order from which she appealed. Recognizing that “the important constitutional and statutory rights to counsel and to the effective assistance of counsel” were at stake (id. at p. 1151), and that “an error unfavorable to the interests of the parent during the course of a dependency may be ‘irremediable’ ” (id. at p. 1155), Meranda P. held that “[e]nforcing the waiver rule against the mother’s representational claims does not infringe her due process rights” (id. at p. 1151). Meranda P. explained: “Three elements must be assessed in order to determine ‘ “what due process requires” for fundamental fairness, specifically, “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” ’ (In re Sade C. (1996) 13 Cal.4th 952, 987.) The interplay of these three factors favors application of the waiver rule because, whatever benefits might accrue to the parent in the absence of the rule, the resulting costs to the child and the state are ‘greater.’ (Id. at p. 992.) Of the many private and public concerns which collide in a dependency proceeding, time is among the most important. (Id. at p. 990.) The action ‘ “must be concluded as rapidly as is consistent with fairness . . . .” ’ (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 32; In re Sade C., supra, at p. 990.) The state’s interest in expedition and finality is ‘strong.’ (In re Sade C., supra, at p. 993.) The child’s interest in securing a stable, ‘normal’ home ‘support[s] the state’s particular interest in finality.’ (In re Sade C., supra, at p. 993.) To permit a parent to raise issues which go to the validity of a final earlier appealable order would directly undermine these dominant concerns of finality and reasonable expedition.” (In re Meranda P., supra, 56 Cal.App.4th at pp. 1151-1152, fn. omitted.)
Cases refusing to apply the waiver rule illustrate the sort of circumstances in which due process requires this result. In In re S.D. (2002) 99 Cal.App.4th 1068, the mother’s attorney had conceded jurisdiction based on an erroneous understanding of the law: The attorney told the juvenile court that jurisdiction was appropriate because the mother was incarcerated and unable to care for the child, while section 300, subdivision (g), in fact, only applies if the parent is unable to arrange for care of the child, and the mother in question had relatives ready to assume such care. (Id. at pp. 1074-1075, 1077-1078.) Noting that Meranda P. did not state an absolute rule of enforcing the waiver rule in ineffective assistance of counsel cases, In re S.D. found this was not the “usual” dependency case where statutory safeguards would protect against erroneous termination of parental rights even if the parent was not properly represented. In re S.D. explained that “the error here was entirely legal, and quite fundamental. . . . [T]he parent is hardly in a position to recognize, and independently protest, her attorney’s failure to properly analyze the applicable law.” (Id. at p. 1080.)
In re M.F., supra, 161 Cal.App.4th 673, vacated an order terminating parental rights because the trial court failed to appoint a guardian ad litem for the mother, herself a minor, until after the services were terminated and the hearing on termination of parental rights was pending. Although the mother had not filed a writ petition after her reunification services were terminated, In re M.F. declined to apply the waiver rule because the “failure to appoint a guardian ad litem in an appropriate case goes to the very ability of the parent to meaningfully participate in the proceedings. For the same reasons that [the mother] needed a guardian ad litem, she was ‘hardly in a position to recognize . . . and independently protest’ the failure to appoint her one. (In re S. D., supra, 99 Cal.App.4th at p. 1080.)” (In re M.F., at p. 682.)
As the court noted in In re M.F., caselaw has also refused application of the waiver rule where a guardian ad litem was improperly appointed for the parent. In re Jessica G. (2001) 93 Cal.App.4th 1180 , found that appointment of a guardian ad litem for the mother without proper notice and opportunity for hearing violated her due process rights because it put control of the litigation in the guardian’s hands. Rejecting the suggestion that the mother waived her right to complain because she appealed from the order terminating parental rights rather than filing a writ petition when the guardian was appointed, Jessica G. explained: “How could Mother have done so? Her attorney looked to the guardian ad litem, and that person could hardly be expected to endorse a writ questioning the legality of her appointment. Mother was in a Catch-22 situation in which she had a bare remedy with no real knowledge or ability of how to use it and no attorney to whom she could turn to effect it. Insisting that she take a writ at that point or lose her right to later complain about violation of her constitutional rights would itself pose constitutional issues.” (In re Jessica G., at p. 1190.)
In the present case, appellant’s argument that the waiver rule should not apply is based on the unquestionably fundamental nature of his constitutionally protected interest “in the companionship, care, custody and management of his children” (In re Marilyn H. (1993) 5 Cal.4th 295, 306) and the vital role of visitation in the reunification process. Despite the great significance of the right at issue, however, an erroneous visitation order is not a “defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole.” (In re Janee J., supra, 74 Cal.App.4th at pp. 208-209.) Unlike the parents in the cases mentioned above, the court’s visitation orders did not prevent appellant from participating meaningfully in the proceedings. Appellant was aware of each visitation order at the time it was made, was represented by counsel, and failed to appeal the orders. Appellant has shown no violation of due process in applying the usual rules of waiver to this case.
In his letter brief responding to our question about application of the waiver rule, appellant asked us to consider a new issue not raised in his prior briefing, arguing that the trial court erred in terminating appellant’s visitation because it did not make a finding that visitation would be detrimental to the child. “[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.]” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, pp. 647-648; People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26; Ritter & Ritter, Inc. Pension & Profit Plan v. Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 129.) Appellant has offered no explanation, much less good cause, for raising this issue in supplemental briefing responding to a question posed by the court, long after the filing of his opening and reply briefs on the appeal.
The judgment is affirmed.
We concur: Lambden, J., Richman, J.