Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. OJ06003532 & OJ06003533.
Lambden, J.
Alameda County Social Services Agency (agency) filed a petition pursuant to section 300, subdivision (b) of the Welfare and Institutions Code on behalf of J.A. and D.A. Following a jurisdiction and disposition hearing, the juvenile court found the allegations in the amended petition true and removed both boys from the custody of K.H. (mother). Mother appealed that ruling and we affirmed in our nonpublished decision filed January 18, 2007, In re J.A., A114066 (J.A. I.). Subsequently, the lower court held two interim review hearings, where it granted mother a 30-day trial visit between her children and her and, in the second hearing, extended the trial visit. Mother appeals from these two orders and we conclude that she has waived raising these issues on appeal because she failed to object to these visitation rulings in the lower court.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
The procedure and facts related to the court’s jurisdiction and disposition order have already been set forth in J.A. I. In that opinion, we stated in pertinent part: “On March 24, 2006, agency filed a petition on behalf of D.A. and J.A., two sons of mother, alleging that the boys came within the provisions of section 300, subdivision (b). At the time of the petition, D.A. was 12 years old and J.A. was six years old. The petition asserted that on March 13, 2006, mother contacted agency to report that she had hit J.A. with a belt when he was biting or attempting to bite his younger, four-year-old half brother, I.O. Mother stated that she hit J.A. with a belt and, when he moved, she inadvertently struck him on the lower right cheek, causing ‘a one inch loop-shaped mark.’
“The petition further alleged that mother had been active in the ‘Informal Family Maintenance Program’ (IFMP) since September 2005. Mother had entered this program after she had physically disciplined D.A., who has behavioral and mental health problems. While in the IFMP, mother had agreed not to use physical discipline on her children. However, D.A. told the social worker that his mother had been using a belt or a thin black hose on his brothers and him whenever she became angry. He asserted that she was using the belt or hose about once a week for the past few months. D.A. expressed concern that his mother would seriously hurt him or that she would be arrested.” (In re J.A. I., p. 2.)
“The detention hearing occurred on March 24, 2006.” (In re J.A. I., p. 3.) At that hearing, the court explained: “ ‘It sounds to me like the social worker needs to have another team decision making meeting and sit down with the family and come up with a new plan. I mean, if the original plan had been just to move the boys without an official removal, I can understand why the family’s feeling sort of betrayed and it may be that this is a situation where we are going to be able to make in-home orders by the time of the uncontested. ¶ I’ll go ahead and let the detention stand today. You’ve got discretion to place with an appropriate relative. That will include the mother. But I really think that you need to have another meeting here with the other worker and with the family and try to sort all this out.’
“Agency filed its jurisdiction and disposition report on April 7, 2006. The report recommended that the boys be made dependents of the court and be placed out of the care of mother. Agency recommended that mother be offered family reunification services. . . . [Although it also] alleged that mother had refused to communicate with the social worker since the detention hearing. It also noted: ‘The mother appears to believe that it is appropriate that she might threaten to use an object in the disciplining of her children, thus increasing the risk that physical harm might befall one of her children.’ ”(In re J.A. I., p. 4.)
“On May 11, 2006, mother appeared with her attorney for the contested jurisdiction and disposition hearing.” (In re J.A. I., p. 3.) “The court found the allegations of the petition as amended were true.” (In re J.A. I., p. 4.) “Counsel for agency then told the court that the parties were requesting the court to make jurisdiction findings but postpone issuing any disposition order for 45 days. Counsel for the minors stated that D.A. wanted to return home, but J.A. stated that he did not feel safe returning home. Counsel for agency argued: ‘Given the lack of follow through on the services, and the severity of the recent injuries to [J.A.], [counsel for mother] and I both agree that getting [mother] engaged in services and coming back to look at return of the boys to her would be a more appropriate way to handle disposition. [¶] And we came up with four specific items for the court, for all parties and particularly for the mother to follow-up on so that the children could be returned in 45 days.’ ” (In re J.A. I., p. 4.)
“The court then found that the allegations of the petition as amended were true and declared the children dependents of the court. It found there was clear and convincing evidence that the children must be removed from the physical custody of mother as leaving them in mother’s home ‘would cause a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the children, and there are no reasonable alternative means to protect the children.’ Reunification services were granted to mother. The court gave agency discretion to allow frequent unsupervised visits between mother and the children.” (In re J.A. I., pp. 6-7.)
Mother filed a timely notice of appeal from the jurisdiction and disposition order, and we affirmed in J.A. I.
Mother filed a petition for review in the Supreme Court, which was denied on April 11, 2007. We issued our remittitur on April 25, 2007.
Agency prepared an interim review report that the social worker filed on August 2, 2006. The report stated that the social worker had provided mother with an individual counseling referral, but mother had missed two scheduled sessions because of a lack of childcare. Mother was referred to Savitri Hari for counseling.
Mother was given a referral to Dr. Warren Taylor for a psychological evaluation of J.A. Mother refused to take J.A. because she had not liked this doctor’s evaluation of D.A. She was provided another referral, but mother did not attend the appointment and claimed that the office, which was in Dublin, was too far. Mother was given another referral and she scheduled an appointment in July 2006, but again failed to attend the appointment. Mother finally appeared at an appointment on July 25, 2006, but she refused to sign the consent forms and refused to proceed with the evaluation because she feared that her child would be misdiagnosed by an intern. The only people available who were not interns were Taylor and the provider in Dublin.
On August 9, 2006, mother and the children appeared in court for an interim status review hearing. Counsel for the children stated that the children were very disappointed because they believed “there would be a very good possibility that they could go home [to their mother] at the end of the summer. Although they love their grandmother very much, it’s very challenging for them to be staying with their grandmother. They are out of their neighborhood. Their grandmother lives in a seniors’ complex. There is not much for them to do there. [¶] They disagreed with being removed from their Mom’s care in the first place and really love their mom and think it’s perfectly safe for them to be at home. And they would very much like to be able to go home before school starts.”
At the end of the hearing, the court authorized a 30-day trial visit between the children and mother in the mother’s home with the condition that mother “access the services, the therapeutic services that have been recommended by the agency for [D.A. and J.A.]. And if that happens, and we’ll come back for a progress report in 30 days, and if that happens and it’s helping, then possibly at that point we can talk about extending the trial visit and maybe even having it become an in-home order at this point. [¶] But I’m not, I want to be really clear with everyone here, I’m not here today setting aside the out-of-home order. It’s still in place. And if there is any problem that tells me that this was not a good idea, then the children will have to be back out of the home again.”
The court also admonished that “it’s very common for––with abuse issues, with physical discipline issues, it’s very common for one child to be the victim and not the others. That doesn’t tell me anything about what has been going on here. And so, it’s very important that nothing happen that suggests to me that there will be any kind of inappropriate physical discipline in the home no matter what is going on with [D.A.] or anyone else.”
Agency filed an interim review report on August 31, 2006. The report stated that Hari informed agency that she had completed three individual counseling sessions with J.A. She described him as “ ‘an intelligent and extraordinary child who is very hyper.’ ” She stated that mother, J.A., and D.A. completed three family sessions, and that mother did all of the talking. She reported that mother “ ‘is in complete denial and is in control of the children.’ ” Hari also informed agency that mother had completed only one of her individual counseling sessions. The report indicated that D.A. was to begin therapeutic treatment with Oakland Children’s Services, but mother refused to sign the intake forms.
The report stated that the children were asked separately how things were going at home; J.A. responded that was “private” and D.A. said things were “good.” The public defender’s office stated that it had not been able to schedule a home visit with mother because she was not home at the scheduled time.
Agency recommended that the extended visit be continued to the six-month hearing because it was concerned that the children had “been coached to not disclose any information about what takes place at the home” and agency had not been able to “assess how the family has been doing over the 30-day extended visit[.]”
The court held the interim review hearing on September 6, 2006. Counsel for the children stated that she had trouble talking to the children, and had talked to them for the first time that day. Counsel had set up a visit with mother, but mother failed to keep the appointment. The children indicated that they would like to continue as recommended.
After mother explained that traffic and timing had been a problem and caused her to miss scheduled appointments, the court concluded that mother was trying to cooperate. The court noted that it had come to its attention that mother may be spanking J.A., and the court told her to find a different manner of disciplining him. Mother said she understood and her counsel stated that mother once patted J.A.’s bottom after he sprayed his brother with a fire extinguisher. Mother agreed to try alternatives to spanking.
The court extended the trial visit between mother and the children until the six-month review date.
On September 22, 2006, trial counsel filed a motion to withdraw as counsel of record for mother on the basis that there had been a break down in the attorney-client relationship and that mother’s conduct had made it difficult for counsel to represent her effectively.
Mother filed timely notices of appeal from the order dated August 9, 2006, which continued the out-of-home placement and granted a 30-day trial visit between mother and her children and from the order dated September 6, 2006, which extended the trial visit.
DISCUSSION
I. Jurisdiction Findings
Mother argues that her due process rights were violated when the court failed to obtain her waiver of rights (Judicial Council Form JV-190 (Rev. Jan. 1, 1996)) prior to making its jurisdiction findings. This argument is identical to the argument made in J.A. I., and that opinion bars the relitigation of this issue under the doctrine of res judicata. (See, e.g., Mata v. City of Los Angeles (1993) 20 Cal.App.4th 141, 149.)
“ ‘Under the doctrine of res judicata, an existing final judgment on the merits of a cause rendered by a court of competent jurisdiction is, in all subsequent actions, conclusive of the rights of the parties, and their privies, on all material issues that were or might have been determined. [Citations.]’ ‘The application of the doctrine in a given case depends on affirmative answers to these questions: “Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea [of res judicata] is asserted a party or in privity with a party to the prior adjudication?” ’ ” (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 394.)
In the present case, the answer is affirmative to all of the foregoing questions. We decided this identical issue in J.A. I., this decision became final in April 2007, and the identical parties were involved in the lawsuit. Accordingly, the issue of due process for failure to obtain mother’s waiver rights is barred by the doctrine of res judicata.
II. Orders Granting and Extending the Children’s Trial Visit with Mother
Mother concedes that her trial counsel did not object to the trial court’s order granting a 30-day trial visit with her children in her home, nor did she object to the order extending that visit. She claims, however, she has not forfeited the issue under the holding in In re Andres G. (1998) 64 Cal.App.4th 476, 480.
Generally, issues not raised in the trial court cannot be raised on appeal. (Civ. Code, §§ 3515, 3516 [a party forfeits the right to claim error as grounds for reversal on appeal when he or she did not raise the objection in the trial court]; see also In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) “In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) However, a challenge based on the court’s acting beyond its jurisdiction in the fundamental sense is void, and since it may be set aside at any time, such challenges on appeal are not waived when not raised in the lower court. (See, e.g., People v. Ruiz (1990) 217 Cal.App.3d 574, 584; In re Andres G., supra, 64 Cal.App.4th at p. 482.)
In the present case, mother claims that the court’s orders granting and extending the trial visit between her children and her were beyond the court’s jurisdiction and therefore void. Mother claims that that these interim orders were inconsistent with the court’s continued out-of-home placement order and were therefore unlawful. (See In re Damonte A. (1997) 57 Cal.App.4th 894, 896-898; In re Andres G., supra, 64 Cal.App.4th at pp. 479-483.)
Courts have consistently held that a juvenile court in a dispositional order may not remove a child from his or her home based on a finding that the child is in substantial danger in the home, and then immediately place the child back into the dangerous setting; such an order is beyond the court’s fundamental jurisdiction. (See, e.g., In re Damonte A., supra, 57 Cal.App.4th at pp. 897-899 [no statutory authority for juvenile court to remove minors from parental custody because they were at a substantial risk of danger in the parent’s home, and then order the minors temporarily placed in the parent’s home]; In re Andres G., supra, 64 Cal.App.4th at p. 483 [no authority for juvenile court to detain minor in his parents’ home after finding a substantial danger to the minor’s health or safety if he were returned home]; Savannah B. v. Superior Court (2000) 81 Cal.App.4th 158, 161-162 [juvenile court acted beyond its authority when it found the minor was suffering severe emotional damage and there was no reasonable means to protect her without removal from her parent’s custody while simultaneously granting a 60-day visit with the parent]; In re Joel T. (1999) 70 Cal.App.4th 263, 267 [juvenile court acted beyond its authority when it detained minors after finding the return of them to their mother would be detrimental to them and then allowed the minors to remain in their mother’s custody on a trial basis].) As one court has explained, such a procedure entails “an unseemly inconsistency, its effect is to either remove children from the home under circumstances the Legislature did not authorize or to place children in a dangerous setting.” (In re Andres G., supra, 64 Cal.App.4th at p. 481.)
We agree with Damonte A. and its progeny that an order that both removes a child from his or her parents’ custody due to danger to the child’s welfare and simultaneously places the child in the parents’ household is invalid. The present appeal, however, did not involve a dispositional placement order. Mother appealed the disposition order that was issued in May 2006, and we affirmed that ruling in J.A. I.
The current appeals are from orders following status review hearings; the first status review hearing occurred on August 9, 2006, almost three months after the disposition hearing. At the hearing on August 9, 2006, the lower court found that the children’s safety would not be jeopardized by permitting them to have a 30-day visit with mother in her home on a trial basis. As the trial court expressly stated, it was not issuing a placement order and it was not setting aside the out-of-home order when issuing the visitation order. This trial visit was predicated on the condition that mother participate in the recommended therapeutic services. This visit was extended in the subsequent order to permit agency sufficient time to assess the trial visit. The court in the present case did not, as did the courts in Damonte A., Joel T., Andres G., and Savannah B., place the children back in the home simultaneously with a finding that the home posed a substantial danger to them. Rather, the court allowed visitation in mother’s home after mother had been participating in the reunification services and after mother promised to continue with the recommended therapeutic services.
Section 361, subdivision (c), which governs disposition hearings and requires the court to find by clear and convincing evidence that removal of the children from the parent’s home is necessary, is inapplicable to status review hearings. Section 366.21 governs status review hearings and this statute does not require that the trial court find by clear and convincing evidence that the parent’s home poses an unreasonable risk of danger to the children.
Section 361, subdivision (c)(1) provides in relevant part: “(c) A dependent child may not be taken from the physical custody of his or her parents . . . , unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . : [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . custody. . . .”
The present interim visitation orders were not from a six-month review hearing. Section 366.21, subdivision (e) provides that “[a]t the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.”
Here, at the status review hearing, the lower court made a ruling regarding visitation, not placement. The statute governing visitation orders between parents and dependent minors is section 362.1. Section 362.1, subdivision (a), provides in relevant part: “In order to maintain ties between the parent or guardian and any siblings and the child, and to provide information relevant to deciding if, and when, to return a child to the custody of his or her parent or guardian, or to encourage or suspend sibling interaction, any order placing a child in foster care, and ordering reunification services, shall provide as follows: [¶] (1)(A) Subject to subparagraph (B), for visitation between the parent or guardian and the child. Visitation shall be as frequent as possible, consistent with the well-being of the child. [¶] (B) No visitation order shall jeopardize the safety of the child. . . .”
Under the applicable statutes, the lower court had the authority to issue a visitation order granting a 30-day trial visit between mother and the children and then to extend that visitation because the agency had insufficient time to assess that visit. “Visitation arrangements demand flexibility to maintain and improve the ties between a parent or guardian and the child while, at the same time, protect the child’s well-being.” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1376.) “[T]he court in the exercise of its judicial discretion should determine whether there should be any right to visitation and, if so, the frequency and length of visitation.” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) Accordingly, we conclude that the lower court did not engage in any inconsistency and followed the fundamental procedures prescribed by statute.
Since we conclude that the lower court did not act beyond its jurisdiction, mother had to object to the visitation orders below to preserve any objection to them on appeal. Not only did mother fail to object, but her trial counsel represented that mother understood the court’s ruling and mother expressly affirmed at the first status review hearing that the court’s ruling was clear to her. We therefore conclude that mother has forfeited raising any objection to the order granting a 30-day trial visit between mother and her children and the order extending this visitation.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.