Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 75850
Kline, P. J.
J.L. appeals from the order of the San Mateo Juvenile Court terminating his parental rights to his now 16-year-old son, C.M. He contends the order must be reversed because the juvenile court’s failure to ensure visitation deprived him of constitutional rights. Appellant previously challenged the juvenile court’s visitation orders in his appeal from the orders terminating reunification services and placing C.M. in long-term foster care. Our decision affirming those orders was filed while the current appeal was being briefed. We now affirm the order terminating appellant’s parental rights as well.
Statement of the Case and Facts
A full recitation of the facts is unnecessary to the present opinion, but can be found in our opinion on the prior appeal (In re C.M. (Oct. 27, 2008, A119558) [nonpub. opn.]). As relevant here, C.M. was detained in July 2006, at 14 years of age, on a petition alleging he 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. It was further alleged that C.M. refused to return to appellant’s home and that C.M.’s mother had not been part of his life since he was two years old and her whereabouts were unknown. An amended petition subsequently added allegations of physical abuse resulting in bruises under section 300, subdivision (a). At the detention hearing, the court ordered supervised visitation for appellant.
All further statutory references will be to the Welfare and Institutions Code.
The jurisdiction/disposition report related, among other things, that appellant denied the abuse allegations and described various behavior problems with C.M., including lying, and that C.M.’s school principal reported behavior problems at school and lack of appropriate response from appellant. The social worker reported that C.M. did not want to see or talk to appellant and recommended visitation “only with the child’s consent,” and the court ordered supervised visitation “if minor agrees.”
On October 4, 2006, appellant signed a waiver of rights and submitted the petition on the social worker’s reports. The petition was amended to conform to in-court findings, alleging occasional physical abuse that C.M. alleged resulted in bruises; sexual abuse that appellant denied; and C.M.’s refusal to return to appellant’s home. The court ordered supervised visitation “only with the child’s consent.”
The social worker’s six-month review report stated that appellant repeatedly requested visitation but C.M. refused to have any contact with appellant. The social worker again recommended visitation only with C.M.’s consent, and the court so ordered. At the 12-month review hearing, in accordance with the social worker’s recommendations, the court terminated appellant’s reunification services, placed C.M. in long-term foster care and ordered no contact with appellant. Appellant filed his notice of appeal from these orders on October 25, 2007.
On March 12, 2008, while the appeal was pending, the San Mateo County Department of Social Services (Department) filed a request to change the court’s permanent plan to adoption because the foster family with whom C.M. had been living since November 2007 wanted to adopt him. The Department indicated that appellant did not agree with this request and did not want his parental rights terminated. The matter was set for a hearing on May 8, 2008.
In the status review report prepared for a previously scheduled permanency planning review hearing, the social worker stated that both the foster parents and C.M. wanted the proposed adoption, and that C.M. continued to refuse contact with appellant. At the hearing, appellant requested a contested hearing on the recommendation for termination of his parental rights. The court rescheduled the May 8 hearing for May 19 and told appellant he would be able to raise his challenges at that hearing.
The report prepared for the May 19 hearing stated that appellant had consistently denied the allegations of abuse; C.M. had consistently refused contact with appellant; and C.M. was “flourish[ing]” in out-of-home placement, displaying none of the behavioral problems that had been present while he lived with appellant. The social worker noted that C.M. had been able to form strong bonds both with his current foster parents and with the staff at the group home where he had previously been placed.
At the May 19 hearing, appellant’s attorney informed the court of the pending appeal challenging the orders for visitation only with C.M.’s consent, describing it as based upon a line of cases holding that a child does not have the right to refuse all visitation with a parent. The court stated its view that C.M.’s “decision not to be with the father is understandable in light of those allegations.” The court found there was clear and convincing evidence C.M. would be adopted and terminated appellant’s parental rights.
The court also terminated the parental rights of C.M.’s mother.
Appellant filed a timely notice of appeal on May 19, 2008.
Discussion
Appellant argues that the juvenile court, throughout this case, failed to ensure any visitation occurred, thereby eroding his relationship with C.M. and eliminating the possibility that the relationship could be repaired. Appellant contends the delegation to C.M. of the decision whether visitation would occur was legally impermissible and deprived appellant of any chance to avoid termination of parental rights. Correctly stressing the vital role visitation plays in the entire dependency scheme, and the fundamental nature of his constitutionally protected interest in his parental relationship with C.M. (see In re Marilyn H. (1993) 5 Cal.4th 295, 306), appellant urges his constitutional right to due process was violated by the juvenile court’s visitation orders.
In his prior appeal from the order terminating reunification services, appellant urged reversal was required because the trial court improperly delegated to C.M. complete control over visitation. We recognized that 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.) We did not review the merits of appellant’s claim, however, because the visitation orders appellant challenged had not been made at the hearing from which the appeal was taken but rather at the prior jurisdiction and status review hearings. (In re C.M., supra, A119558.) Although the visitation orders were appealable, no appeal had been taken from them.
As we explained in our prior opinion, “[s]ection 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.) Although appellant urged us not to apply the waiver rule because the trial court’s error rose to the level of a due process violation, we declined his request. As we explained, 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., supra, 74 Cal.App.4th 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.” (Id. at p. 209.)
In re Meranda P. (1997) 56 Cal.App.4th 1143 applied the waiver rule to a mother who, on appeal from an order terminating her parental rights, claimed that certain orders predating the termination order were rendered in violation of her right to counsel and ineffective assistance of counsel. Despite the importance of the constitutional and statutory rights at issue, and the potentially irremediable consequences of an error, In re Meranda P. held that “[e]nforcing the waiver rule against the mother’s representational claims does not infringe her due process rights.” (Id. at pp. 1151, 1155.) In re 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.’ ([Ibid.]) 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, at pp. 1151-1152.)
We concluded on the prior appeal that 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.) We explained that the juvenile court’s 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 re C.M., supra, A119558.)
Appellant’s briefs on the present appeal suggest no reason the waiver rule would not apply equally to this appeal from the order terminating his parental rights. Our opinion on the prior appeal was filed after appellant had filed his opening brief on the present appeal. Appellant’s reply brief merely acknowledges in a footnote that “this Court’s previous opinion filed October 27, 2008, . . . affirmed the juvenile court’s visitation orders.” The waiver rule applies no less at this juncture than it did previously.
The judgment is affirmed.
We concur: Lambden, J., Richman, J.