Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Maureen Aplin, Super. Ct. No. DP011916, Temporary Judge.
Sharon S. Rollo, under appointment by the Court of Appeal; Eric M., in pro. per., for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
BEDSWORTH, ACTING P. J.
Eric M. appeals for the second time from a judgment terminating dependency jurisdiction over his daughter, Elizabeth M., and returning her to the custody of her mother, Stacy A. In the first appeal, we agreed with Eric’s contention the court had erred by issuing an exit order which significantly reduced his visitation, based solely upon a stipulation of questionable validity. As a consequence, we reversed the termination order, and remanded the case to the juvenile court “for the limited purpose of modifying the judgment to reflect that Eric’s visitation schedule remains unchanged from what it was prior to the termination.”
The juvenile court, after some interim hearings, did just that. However, Eric is not yet satisfied, and has chosen to pursue a second appeal on his own behalf, as is his right, after the attorney appointed to represent him on appeal informed this court she could not discern any basis for maintaining the second appeal. (See In re Sade C. (1996) 13 Cal.4th 952.)
We affirm the termination order. Although Eric suggests our resolution of the first appeal demonstrates that counsel representing him in the juvenile court was ineffective, and did not act sufficiently to protect Eric’s interests, we reached no such conclusion; we merely noted it was one possible explanation for the mysteriously interlineated “stipulation” to reduce Eric’s visitation – the other possibility being that the interlineation was accomplished and presented to the court without the knowledge of Eric’s counsel. In either case, that questionable stipulation was dealt with in our prior opinion, and we see no evidence that any other aspect of the termination order would have been altered had Eric’s counsel acted in a different manner. While it remains unclear how the purported stipulation to reduce Eric’s visitation came into existence prior to the last appeal, that reduction has now been reversed in accordance with the directive contained in our prior opinion, and there is no indication Eric’s interests were otherwise harmed.
FACTS
On June 14, 2005, Orange County Social Services Agency (SSA) took 20-month old Elizabeth into protective custody due to allegations of general neglect and caretaker absence. Elizabeth’s parents, Eric and Stacy, were arrested on drug charges and SSA placed Elizabeth at Orangewood Children’s Home. Both parents had an extensive criminal history, and SSA recommended disposition of the case be postponed until criminal proceedings were resolved.
SSA placed Elizabeth with her godparents. Upon Stacy’s release, SSA offered reunification services to both parents. Stacy was granted weekly visitation with Elizabeth and Eric was granted twice-monthly visitation while he remained incarcerated in Orange County. On December 10, 2005, SSA placed Elizabeth with her paternal aunt and uncle, as her godparents were no longer able to care for her.
During these early visits with Eric, Elizabeth recognized her father and enjoyed seeing him; although she sometimes had difficulty with the visitation environment. Eric interacted properly with Elizabeth and was aware of her moods and needs during visits.
On February 28, 2006, Stacy’s visits were increased to twice weekly. On March 23, SSA recommended Eric’s visits be reduced to once per month due to Eric’s transfer to Wasco State Prison, where he was to serve a 10-year sentence. The change was requested because the new facility was far from Orange County and the travel would potentially be difficult for Elizabeth. The court granted that request.
On May 17, 2006, Elizabeth was returned to her mother’s care, as Stacy was able to maintain sobriety and made sufficient progress on her case plan requirements. Eric remained incarcerated, but expressed a desire to become a better parent and participate in the case plan. Elizabeth reacted positively to visiting her father, and Eric was loving and interacted appropriately with the child.
Eric appeared at the July 11, 2006, 12-month review hearing. He requested that his visitation schedule be increased. Stacy, meanwhile, requested the visitations with Eric be reduced to every other month or once every three months. Stacy’s counsel argued that Elizabeth’s age made the seven-hour trip to the prison too difficult. The court, per Commissioner Gary Vincent, stated it would not consider a reduction in Eric’s visitation without a formal motion and evidence presented showing there was good cause for a reduction. Moreover, the court emphasized that Elizabeth’s monthly visitation with Eric was important, and must be conducted in such way as to ensure Eric had as much time as possible with Elizabeth during each visit.
Eric and Elizabeth continued thereafter to enjoy their monthly visits. A social worker facilitated the visits, picking Elizabeth up at 5:00 a.m. on the day of the visit and making the drive to Centinela State Prison (it is unclear when Eric transferred from Wasco to Centinela). The social worker reported that Elizabeth would sleep the first couple of hours of the drive, and that she recognized the prison building and associated it with her father, becoming excited to see him. The visits were appropriate and loving. Elizabeth would generally nap during the drive back and transitioned smoothly into her normal routine without any significant issues.
At the 18-month review hearing on January 11, 2007, SSA commended Stacy for her “dedication and commitment to all three of her children.” Despite Stacy’s progress, however, SSA recommended that the dependency be continued, and that Stacy be provided additional family maintenance services. With respect to Eric, SSA recommended that his visitation schedule be maintained at once per month while he remained incarcerated.
The court adopted SSA’s recommendations, and continued the dependency, but also set a termination review hearing for April 5, 2007. At the time of that termination review hearing, SSA reported that a social worker was continuing to facilitate monthly visits between Eric and Elizabeth, and those visits were going well. Elizabeth reportedly enjoyed seeing her father and liked visiting because “they ‘play and have fun.’” Elizabeth also did well during the drive to and from the prison facility.
The report also noted that Eric was adamantly opposed to a termination of jurisdiction, because he believed Elizabeth remained at risk in Stacy’s care. However, SSA did not share his fears, noting instead that while it “had minor concerns regarding housing problems that may arise, there are really no identifiable safety risks that warrant continued supervision at this point in time.” As a consequence, SSA recommended termination of jurisdiction.
Eric did not appear at the termination hearing, apparently because he was anticipating being scheduled for surgery and was concerned that leaving the prison for a day might jeopardize his chances. In connection with the hearing, the parties filed a multi-page stipulation re: proposed orders and findings which covered the disposition of certain issues in the event the court ordered termination of the dependency proceedings. The first page of that stipulation was signed by all counsel, including Eric’s counsel, Michael Hughes, although Hughes was careful to include a notation next to his signature which made clear Eric was objecting to the termination itself.
The proposed order regarding Eric’s visitation was contained on the fourth page of the stipulation, and was not separately signed by counsel. In a handwritten paragraph, the proposal originally reflected Eric should continue to have monthly monitored visitation with Elizabeth, with transportation to be provided by a party agreed upon by Eric and Stacy. However, that original proposal was subsequently interlineated in what appears to be a different handwriting. The interlineation altered the proposal to reflect that Eric would be allowed visitation with Elizabeth only once every two months, “weather permitting.” The interlineations were not initialed by any of the parties or their counsel, and there was no indication of either when, or under what circumstances, they had been made. Moreover, it appears that Hughes himself executed the stipulation at some point prior to the hearing, as it was his associate, April Kleis, who actually appeared for Eric.
The hearing was brief, and commenced with Judge James Marion noting he was new to the proceedings and congratulating Stacy for her progress. The court then admitted SSA’s report into evidence, and stated it was adopting SSA’s recommendation. Kleis noted for the record that Eric was objecting to the termination of jurisdiction, but offered no argument, and made no request to offer evidence on the point.
The court then declared “The dependent child proceedings are terminated with the attached O.C. juvenile court custody orders.” There was no discussion or argument regarding the substance of those orders, and no mention at all of Eric’s visitation schedule.
The termination order ultimately entered by the court reflected the altered version of the proposed visitation order, thus reducing Eric’s visitation with Elizabeth by at least one-half from what it had been prior to the termination hearing – and perhaps more if the weather did not “permit.” Eric appealed that order, arguing (1) he had been denied notice and an opportunity to contest the termination order, and (2) that the court erred by reducing the frequency of his visitation as part of that order.
We found the second contention to be meritorious, as there had been no formal request to reduce Eric’s visitation in connection with the termination order, and no evidence submitted to support such a reduction. As for the mysteriously interlineated “stipulation,” we concluded it could not be relied upon as a basis for the reduction. We reversed the termination order, and remanded the case “for the limited purpose of modifying the judgment to reflect that Eric’s visitation schedule remains unchanged from what it was prior to the termination.”
On remand, there were three hearings. At the first, the court reopened the dependency case, and reappointed counsel to represent Eric. The court also ordered that Eric remain in custody locally, to facilitate visitation. At the second hearing, the matter was continued to allow SSA to address the concerns of Stacy and minor’s counsel regarding the relatives who were to monitor the visitation. At the final hearing, the court noted Stacy’s complaints about the status of visitation between Eric and Elizabeth, and took evidence relating to her proposals that the visitation should once again be limited to once every two months while Eric remained in custody, and that it should be professionally monitored once Eric was released from custody. However, Eric’s counsel pointed out that this court’s remand had been limited, and expressly required the juvenile court to merely reenter the termination order, but with a provision restoring Eric’s visitation schedule to what it had been prior to the original termination.
After hearing the arguments of all counsel, the court stated it would simply follow this court’s directive and modify the prior termination order to reflect that Eric’s visitation schedule was reinstated to what it had been prior to that original termination. The court otherwise refused to alter the order, including its provision that sole legal and physical custody was vested in Stacy. “The status of the custody remains status quo as directed to me from the appellate court. . . . Visitation is the only thing that we are dealing with per the appellate court, and that is the only thing the court is taken up with today.”
I
Eric first argues that the termination judgment was tainted by the ineffective assistance of the counsel who represented him in the juvenile court. He contends that this court, in its prior opinion, described his counsel as “highly suspect.” But that is incorrect. What we actually characterized as “rather suspect” was the interlineated stipulation used to decrease Eric’s visitation. We suggested there were a couple of different explanations for how that stipulation might have come into existence, and that neither of them was satisfactory. But in the absence of any evidence, we drew no conclusions about whether Eric’s counsel might have been (a) complicit in the decision to reduce Eric’s visitation, without apparent justification; (b) merely mistaken in failing to object to the proposed reduction; or (c) completely unaware of the stipulation he had intended to enter into had been altered.
What we did do was order the interlineated portions of the stipulation be, in effect, nullified, so that Eric’s visitation schedule would be restored to what it had been prior to the original termination judgment. As a consequence of our order, whatever impropriety may have occurred in the creation of that stipulation has been addressed. Eric was simply not entitled to greater relief than that, no matter how the stipulation had actually come into being.
To the extent Eric is suggesting that the mere possibility that his counsel might have done something inappropriate, or even merely negligent, in the creation of the stipulation, justified the appointment of new counsel to represent him on remand, we disagree. No such request was made in the prior appeal, nor is there any indication in the record that Eric himself objected to the reappointment of his prior counsel when it was made after remand. The contention is consequently waived. “[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would ‘“‘permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’” [Citations.]’ [Citation.]” (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.)
Moreover, our own review of the record after remand suggests that Eric’s counsel took all appropriate action to ensure that Eric received the benefit of our prior opinion during the course of the remanded proceeding, and thus there is no basis to conclude that his reappointment actually harmed Eric in any way. “A parent seeking review of a claimed violation of [Welfare and Institution Code] section 317.5 must show a violation of the statute, i.e., that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. Courts are not unfamiliar with this test. [Citations.] [¶] The parent must also establish that the claimed error was prejudicial. We agree with those cases holding that violation of a statutory right to counsel is properly reviewed under the harmless error test enunciated in People v. Watson [(1956)] 46 Cal.2d 818, 836. . . . Thus the parent must demonstrate that it is ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ (People v. Watson, supra, 46 Cal.2d at p. 836.)” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Eric made no such demonstration in this case, and we can discern no basis for concluding that such a demonstration might have been successfully made by competent counsel on appeal.
Welfare and Institutions Code section 317.5, subdivision (a) provides that “[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.”
II
Finally, Eric notes that upon remand, he should have been entitled to a “‘new stipulation’ favorable to ‘this court’s recommendations’ absent a lengthy actual hearing;” but that the court nonetheless conducted a “‘full termination hearing,’” in which it allowed Elizabeth’s mother to introduce evidence in support of her request to (again) modify visitation. Eric argues that since the juvenile court chose to improperly conduct a full evidentiary hearing, rather than merely alter the original termination judgment in accordance with this court’s prior direction, he then should have been allowed to present his own evidence in support of a different custody order.
Eric is correct regarding the impropriety of the evidentiary hearing on remand. Because our directions regarding how the termination order should be altered on remand were explicit, and quite limited, we cannot understand the perceived need for an evidentiary hearing. But in the end, and perhaps due to the protestations of Eric’s counsel, it appears the juvenile court also recognized that its task on remand did not actually extend to reconsidering any aspect of the termination judgment. Consequently, the court ultimately, and properly, entered a termination judgment which was altered only to reinstate Eric’s prior visitation schedule.
Because the juvenile court did not actually rely on any of the evidence presented by Elizabeth’s mother to make changes to the termination judgment, Eric was not harmed by the mere fact an evidentiary hearing took place. Nor was he harmed by the fact the hearing did not also encompass evidence pertaining to his desire for a different custody order. The juvenile court simply had no power, given our limited remand, to make any change in that custody order. Had it done so, we can only assume it would have been Elizabeth’s mother, rather than Eric, who would be appealing the termination judgment this time.
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.