Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK73636 Marilyn K. Martinez, Juvenile Court Referee. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Objector and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
MOSK, Acting P. J.
INTRODUCTION
A.A. (mother) appeals from the juvenile court’s order terminating her parental rights to her children H.A. and I.A under Welfare and Institutions Code section 366.26 . Mother contends the order should be reversed because the Department of Children and Family Services (Department) prevented her from establishing the parental visitation exception to the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). We affirm the order.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The Department’s July 15, 2008, detention report provided that H.A. and I.A. came to the Department’s attention when E.B. (father) was observed begging for money at a major intersection with one-year old I.A. Father was arrested for endangering I.A.’s life, and the Redondo Beach Police Department and the Department contacted mother. Mother was arrested for an outstanding warrant when she arrived at the Police station. I.A. was placed in protective custody in a foster home and H.A was detained at large.
On July 15, 2008, the Department filed a petition under section 300 alleging that father’s use of methamphetamine rendered him unable to provide the children with proper care and that father failed to provide appropriate supervision of the children. The petition also alleged that mother was incarcerated and had failed to make a plan for the children’s ongoing care and supervision, placing the children at risk of physical and emotional damage. Mother was released from incarceration and appeared at the July 15, 2008, detention hearing during which the juvenile court released the children to mother and ordered father not to reside with mother or the children. At an August 7, 2008, pre-resolution conference the juvenile court made true findings on an amended petition and ordered mother to participate in individual counseling, parenting classes, drug counseling and random drug testing.
Father is not a party to this appeal.
On September 24, 2008, the Department filed a protective custody warrant request with the juvenile court stating that mother was not in compliance with her court-ordered programs, that mother failed to appear at several appointments, and that mother and the children had been seen with father. The Department sought and obtained a protective custody warrant for the children and an arrest warrant for mother.
According to the Department’s February 5, 2009, detention report, on November 6, 2008, the Department received a telephone call from the East Los Angeles Sheriff’s Department advising that mother and father were suspects in robberies of elderly women and home invasion robberies. On February 5, 2009, the Department filed a petition under section 342 alleging that the parents were fugitives from law enforcement, that the location of the children and the parents were unknown, and that the parent’s abduction of the children endangered the children. On February 5, 2009, the juvenile court sustained the petition and ordered that the children be detained from the parents.
In the Department’s March 18, 2009, jurisdiction/disposition report, the Department reported that on December 12, 2008, the parents had been arrested in Las Vegas, Nevada, and that mother had been transported to, and was in the custody of, the Los Angeles County jail. The report also stated that on March 9, 2009, the children were transported from Las Vegas back to Los Angeles and placed in foster care.
At a February 18, 2010, contested permanency hearing, mother requested additional reunification services based upon the Department’s failure to provide reasonable services. Mother claimed that the Department did not facilitate her visitation with the children because she was incarcerated, the Department improperly delegated that obligation to the foster mother and the childrens’ therapist, and the Department denied or otherwise limited mother’s contact with the children.
Because, as discussed post, we hold that mother failed to file a timely petition for an extraordinary writ challenging the orders terminating her reunification services and setting the section 366.26 hearing, we do not detail mother’s efforts to visit the children or the Department’s alleged actions or inactions in that regard.
At the hearing the juvenile court found that the Department had not made reasonable efforts to enable the childrens’ safe return home and to complete whatever steps were necessary to finalize the permanent plan of the children. The juvenile court granted mother’s request for additional reunification services, ordered the Department to ensure that mother had monitored visits with the children, and ordered that the children receive correspondence from mother. The juvenile court also ordered the Department to assist the children with corresponding and drawing pictures for mother, and to have monitored telephone contact with mother. The juvenile court continued the contested permanency hearing to August 19, 2010.
On May 14, 2010, the Department filed a request to change court order, requesting that the juvenile court terminate mother’s reunification services and schedule a section 366.26 hearing. The request stated that on April 14, 2010, mother was transferred to state prison to serve a two-year state prison term, and that the sentence would not allow mother to reunify with the children by August 19, 2010. According to the Department’s June 22, 2010, interim review report, on March 18, 2010, mother had been convicted of a felony.
On June 22, 2010, mother and her counsel were present at the hearing on the Department’s request that the juvenile court terminate mother’s reunification services and schedule a section 366.26 hearing. Mother’s counsel argued that the Department’s request should be denied because the Department’s previous failure to facilitate visitation resulted in a miscarriage of justice. The juvenile court found that in the prior four months, the Department had made reasonable efforts toward family reunification, including facilitating visitation and communications between mother and the children. The juvenile court terminated mother’s reunification services and set the matter for a section 366.26 hearing on October 15, 2010. The juvenile court stated that, “The record shall... reflect mother is right now being personally served for that hearing date; and, furthermore, [mother], the clerk has provided you with documents and I’m required to give you a summary: [¶] If you wish to preserve your right to appeal my order just now setting the next hearing to select and implement a permanent plan, you must file a petition for an extraordinary writ. You may use forms JV820 and 825 that have just been handed to you or any similar format. You may discuss this in greater detail with your attorney.”
The Department’s October 15, 2010, report stated that mother had occasional and inconsistent telephone contact with the children. At the October 15, 2010, section 366.26 hearing mother appeared in custody and her counsel requested a contested hearing. The juvenile court requested an offer of proof as to why a contested hearing should be granted. The offer of proof provided by mother’s counsel was that mother had lived with the children and demonstrated a commitment to the children by her written correspondence. According to mother’s counsel, mother and the children had a parent-child relationship and mother was entitled to present evidence to that effect. In response, the juvenile court denied mother’s request for a contested hearing, stating that there was no evidence to support mother’s offer of proof that a parent-child relationship existed such that it would be detrimental to terminate parental rights. The juvenile court terminated mother’s parental rights.
DISCUSSION
A. Mother’s Forfeiture by Failing to File a Petition for Extraordinary Writ Review After the Order Setting the Section 366.26 Hearing
Mother contends she was denied her due process liberty interests in parenting her children. Mother argues that prior to the order setting the section 366.26 hearing, the Department did not facilitate mother’s visitation with the children and, as a result, she was unable to prove the parental visitation exception to the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i).
Mother concedes that she was unable to establish the section 366.26, subdivision (c)(1)(B)(i) exception.
We asked the parties to brief whether mother forfeited her challenge to the termination of parental rights based on the visitation exception by failing to challenge the juvenile court’s order of June 10, 2010, terminating her reunification services and setting the section 366.26 hearing by filing a timely petition for an extraordinary writ. The parties briefed the issue. The Department contends that mother is precluded from challenging the termination of parental rights based on the visitation exception by failing to file a timely petition for an extraordinary writ. Mother contends that she is not challenging the juvenile court’s order terminating her reunification services and setting the section 366.26 hearing, but instead is challenging the juvenile court’s subsequent order terminating her parental rights.
We affirm the order terminating parental rights because mother did not file a petition for writ of extraordinary review. Although mother appeals from the juvenile court’s order terminating her parental rights under section 366.26, despite her contention to the contrary, she essentially seeks to challenge the juvenile court’s order of June 10, 2010, terminating her reunification services and setting the section 366.26 hearing.
“Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “[The mother] was required to muster her evidence [to establish the parental visitation exception in section 366.26(c)(1)(B)(i)] before the termination of reunification services. The kind of parent-child bond the court may rely on to avoid termination of parental rights under the exception provided in [similarly worded, former] section 366.26, subdivision (c)(1)(A) does not arise in the short period between the termination of services and the section 366.26 hearing.” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1196.)
Although mother appeals the juvenile court’s order terminating parental rights, the appeal does not challenge the prior order setting the section 366.26 hearing, and any foundational orders thereto, unless the order setting the section 366.26 hearing was challenged by a timely petition for an extraordinary writ that was not disposed of on the merits. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.450 et seq.; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1156-1157.)
Section 366.26, subdivision (l) provides in pertinent part, “(1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits. [¶] (2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.”
In In re Meranda P., supra, 56 Cal.App.4th 1143, the mother challenged the juvenile court’s order terminating her parental rights contending it was improper because it was the inevitable product of a collection of erroneous orders that preceded it. The mother argued that when each of these prior orders was made she was either wrongly denied counsel or was incompetently represented by appointed counsel. (Id. at p. 1146) The mother did not file a petition for an extraordinary writ to review the order setting the section 366.26 hearing. (Id. at p. 1151.) In affirming the juvenile court’s termination order because the mother did not file a petition for an extraordinary writ, the court stated, “The dispositional order and the several postdispositional review orders collectively provide justification for an order setting the [section 366].26 hearing (§ 366.21, 366.22), which in turn furnishes grounds for a termination order (§ 366.26, subd. (c)(1)). Upsetting any one of these foundational orders on an appeal from the termination order by a parent who has neglected to bring a petition for extraordinary writ review of the order setting the [section 366].26 hearing would necessarily invalidate the order setting such hearing, a result which would seem to defeat the Legislature’s express command that the order setting the [section 366].26 hearing be unimpeachable by appeal ‘at any time’ in the absence of all of the conditions listed in section 366.26, subdivision (l)(1).” (Id. at pp. 1156-1157.)
Mother did not file a petition for an extraordinary writ challenging the order setting the section 366.26 hearing. Therefore, she cannot challenge that order on appeal.
Citing In re Brittney (1993) 17 Cal.App.4th 1399 and In re Monica C. (1994) 31 Cal.App.4th 296, mother contends that “denial of visits to an incarcerated parent who is found by the juvenile court to be entitled to court ordered visitation... mandates reversal of an order terminating rights.” Mother’s reliance on these cases, however, is misplaced because they have been superseded by the 1994 enactment of section 366.26, subdivision (l), which is made applicable to orders setting a section 366.26 hearing issued on or after January 1, 1995. (In re Meranda P., supra, 56 Cal.App.4th at pp. 1156, 1159; § 366.26, subd. (l)(5).)
See footnote 4 ante.
Mother also relies on In re Hunter S. (2006) 142 Cal.App.4th 1497 in support of her contention that the order terminating her parental rights should be reversed because the Department failed to facilitate court-ordered visitation. But In re Hunter S. is distinguishable because, unlike here, the mother in that case had filed with the juvenile court a section 388 petition after the court set the section 366.26 hearing. The mother challenged the juvenile court’s denial of the section 388 petition. Thus, the mother in In re Hunter S. was not challenging the order setting the section 366.26 hearing or any foundational orders thereto. She was instead challenging an order denying her petition-an order made after the order setting the section 366.26 hearing. The mother therefore was not required by section 336.26, subdivision (l) to first file a petition for an extraordinary writ.
Section 388, subdivision (a) provides in pertinent part that, “Any parent... [of] a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... to change, modify, or set aside any order of court previously made....”
Here, mother did not file a section 388 petition after the setting order. Mother cannot challenge the Department’s alleged failure to facilitate her visitation with the children.
B. Mother’s Forfeiture by Failing to Raise the Visitation Issue at the Section 366.26 Hearing.
Mother argues that her due process rights were violated. We also asked the parties to brief whether mother forfeited her challenge to the termination of parental rights based on the visitation exception by failing to raise that issue at the section 366.26 hearing. The parties briefed the issue. The Department contends that mother forfeited her challenge because she did not raise the issue at the section 366.26 hearing. Mother contends that doctrine of forfeiture does not apply because the facts are not in dispute and the issue presented-whether the Department’s failure to facilitate mother’s visitation with the children deprived mother of her due process right to prove the parental visitation exception to the termination of parental rights-is a pure question of law. (In re V.F. (2007) 157 Cal.App.4th 962, 968, superseded by statute on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58 [forfeiture not “automatic” if issue of law].)
Mother forfeited her challenge to the termination of parental rights based on the visitation exception by failing to raise that issue at the section 366.26 hearing. “[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, superseded on other grounds by statute as recognized in In re S.J. (2008) 167 Cal.App.4th 953, 962.) “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 proceeding to go to a conclusion which he may acquiesce in, if favorable and which he may avoid if not.’” [Citations.]’” (In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
In In re V.F., supra, 157 Cal.App.4th 962, on which mother relies, the court merely “conclude[d]” that the question of law in that case was not forfeited. (Id. at 968.) The court observed in reaching this conclusion that “A question of law is not automatically subject to the doctrine of forfeiture. [Citations.]” (Ibid., italics added.)
The court in In re S.B., supra, 32 Cal.4th 1287 explained that, “application of the forfeiture rule is not automatic. [Citations.] But the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] Although an appellate court’s discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters.... Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. [Citation.]” (Id. at 1293.)
Mother did not object at the section 366.26 hearing that proceeding with the hearing and terminating her parental rights would violate her due process rights. Nor did mother contend that she was unable to prove the parental visitation exception to the termination of parental rights because the Department did not facilitate her visitation with the children. And, mother did not seek a continuance of the section 366.26 hearing or argue that she was unable to make an adequate offer of proof. Because this is an issue that should have first been raised with the trial court, we consider it forfeited. “‘“[A] constitutional right, ” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.”’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
DISPOSITION
The juvenile court’s order terminating mother’s parental rights under section 366.26 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
We concur: KRIEGLER, J. KUMAR, J.
Judge of Superior Court of the Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.