Opinion
A122051
4-22-2009
In re J.W., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.S., Defendant and Appellant.
Not to be Published in Official Reports
I. INTRODUCTION
J.W. was removed from the care of his mother S.S. (mother) and declared a dependent of the juvenile court in late 2003 (Welf. & Inst. Code, § 300, subd. (b)). Reunification efforts for mother were terminated by 2005, and J.W. has since remained in a permanent plan of long-term foster care, mother having supervised visits. Mother now appeals from orders made on May 15, 2008, at a seventh plan review hearing. She claims error in (1) ordering supervised rather than unsupervised visits and (2) delegating too much authority to the San Mateo County Human Services Agency (agency) over the length and frequency of her visits. We reject her arguments and affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The record supplied by the parties in this case lacks a copy of an unpublished opinion we issued on August 9, 2007, in a previous appeal by mother (In re J[.]W. (A113320)), where we rejected her challenge to an order denying modification (§ 388). Having advised the parties of our intention to judicially notice that opinion, we do so and quote from it as background for this appeal.
Early Proceedings
"[J.W.] was detained in foster care in August 2003, and jurisdiction began in October 2003, when the boy, then age seven, was made a dependent for mothers failure to protect (§ 300, subd. (b)). Sustained allegations were: (1) a long history of drug and alcohol abuse and emotional instability, with impulsive behavior and unwillingness to use community resources to secure shelter or substance abuse treatment; (2) lack of a stable residence, and dismissal from a homeless shelter for drinking and refusal to comply with drug testing; and (3) failure to ensure [J.W.s] regular attendance at school, his irregular attendance being marked by inattention, fear, confusion and aggression. [J.W.] was kept in foster care . . .; his fathers whereabouts were and remain[] unknown.
"Early on, mother displayed a posture of defiance and blaming others . . . . A mental health evaluation by Dr. Renée LaFarge, [prepared for] disposition, identified an antisocial personality disorder with narcissistic features. LaFarge wrote: `[Mother] sees the circumstances surrounding the removal of and reunification with her son . . . in a purely legalistic manner and is awaiting her day in court. She has little understanding/ acceptance that a reunification process is necessary in order to regain custody of him or what that could entail. She believes that she will win her case through a trial, producing evidence that will vindicate her from any wrong-doing. She . . . believes that [J.W.] will simply be returned to her once she proves that the information the court now has is wrong. During the interview this examiner attempted to present the facts regarding a reunification process but [she] became agitated and defensive . . . . LaFarge found that mother loved her son but was unable to acknowledge any responsibility for his current situation. Mother was unable to protect [J.W.] from future harm, had `a strong aversion to any treatment for herself or for her son, and was `not amenable to treatment if it were offered to her.
"The court ordered services anyway, and LaFarges predictions were borne out. Mother resisted treatment, waged an unrelenting war on [the agency], and made no use of services beyond supervised visits and attending some classes that she later insisted did not benefit her. Throughout the reunification period, she pursued a strategy of resisting compliance and trying to undo the jurisdictional findings.
"This inevitably led to tension with her initial appointed counsel, Craig Morey, and in April 2004, at a six-month review, mother moved to represent herself. Judge Marta Diaz, who had presided to that point, granted the motion and relieved Morey. A contested review was set, but by then mother had filed charges against Judge Diaz with the Commission on Judicial Performance, and the judge accordingly recused herself. [M]other was appointed new counsel, Kevin Thurber, [and] further proceedings were before Judge Richard Livermore.
"The `six-month review was long delayed by continuances and by mothers refusal to sign consent forms for [J.W.], which had forced the agency to petition for court orders (§ 388). The hearing occurred on August 20, 2004, a year after [J.W.] had entered foster care and over 10 months into the reunification period. Mothers position remained that neither she nor [J.W.] needed therapy. She refused drug testing or treatment, saw no harm in her admitted use of alcohol and marijuana, attended just a few therapy sessions, and, due to agency concern about harm to [J.W.] during past supervised visits, now had all visits in the presence of the childs therapist. Her counsel argued for more time, and the court, despite `real doubts whether reunification could be achieved within even an extended 18 months, continued services, and set a 12-month review for late September.
"Mother filed a notice of appeal from the `six-month review order, and this became our docket number A107749. Her appointed appellate counsel ultimately filed a no-issue statement, and we dismissed the appeal in January 2005 (In re Sade C. (1996) 13 Cal.4th 952, 994) after mother declined an opportunity to raise issues on her own. . . .
"On November 4, 2004, the eve of [a 12-month review], mother moved once more to act as her own counsel. The court, correctly observing that full admonitions [required] in the criminal context under Faretta v. California (1975) 422 U.S. 806 (Faretta), were not required in the dependency setting (§ 317, subd. (b); In re Angel W. (2001) 93 Cal.App.4th 1074, 1084), nevertheless conducted an exhaustive Faretta-type voir dire and, in the end, granted the motion. [Trial counsel] Thurber approved, saying, `[M]y client wishes to pursue a legal strategy that I, as her counsel, am not willing to follow," and assured the court that she was "competent to do so. The court also granted mothers motion to have Thurber act as standby counsel. . . .
"A delayed 12-month hearing was held on January 3, 2005. Updated information showed that mother was noncompliant and making no further efforts to progress with services. [J.W.] was doing very well after a year in his foster care home, and his court-appointed [special] advocate [(CASA)] recommended that weekly visits continue. The agency recommended finding no substantial probability of return within the statutory 18 months, terminating reunification services, finding [J.W.] not to be a proper subject for adoption, and placing him in long-term foster care with continuing supervised visits.
"Again, mother offered evidence to dispute the jurisdictional findings. . . . The court tried to coax out any information mother had on the services issues before the court, but mother conceded that she had none. [The court adopted report] recommendations, and set a post-permanent-plan status review for June 30, 2005.
"The status review hearing (§ 366.3, subds. (d)-(g)) took place on schedule, with mother confirming at the outset that she still wished to represent herself. A status report related that J.W., now nearly nine years old and `an engaging and smart young man, was doing well and still had weekly supervised visits with mother despite the termination of reunification services. Mother had recently passed an inappropriate note to him, but J.W. had `"let it fall out" near his supervisor without reading it. He was `very comfortable and settled in his foster home, had formed strong attachments there, liked sports, and wanted to live with his mother but understood that this was unlikely to happen anytime soon. He looked forward to the visits, especially when his adult older brother Sonny was present, but when visits did not occur, this did not, as it had earlier, affect his behavior at home or school. The report observed that the stability of his current placement left open `the possibility of a search for an adoptive home . . . in the future, but recommended for now continued long-term foster care and a further finding that [J.W.] was not a proper subject for adoption.
"At this review, mother once again offered no evidence on the issues before the court, now the permanent plan. She offered only evidence to attack the jurisdictional findings—this time faxed documents she had written to a county grand jury. She did argue that her adult son Sonny should have court-ordered visits with [J.W.], and the court accommodated that concern by expressly ordering supervised visits for Sonny, as well as mother. The court then adopted the recommendations, continuing long-term foster care and setting the next plan review for November 29, 2005.
"In late October, before the next review, mother mailed the court a section 388 petition that sought to `set aside/Dismiss all CPS and Court involvement with our family and to investigate `despicable conduct of the DSS and San Mateo County Child Welfare Service Agency and County Counsel. [Mother] alleged malpractice by a `mental health worker and her counsel, knowing use of `fabricated and `false evidence, failure to disclose `exculpatory evidence, and the securing of evidence by `duress and undue influence. Attachments not clearly identified as such numbered nearly 300 pages. They consist largely of writings she had submitted about the case to a wide range of state and federal agencies and officials.
"On November 18, 2005, the court denied the petition without a hearing, on the ground that it `fails to state new evidence or a change of circumstances. Mother filed a timely notice of appeal from that denial on January 17, 2006, . . . and her notice also purport[ed] to appeal `other appealable orders . . . ."
Our August 2007 opinion found no prejudicial Faretta error nor any basis for attacking earlier orders. Forfeiture, we held, barred "reaching the merits of any earlier orders on the facts presented. Our Supreme Court has explained, quoting decisions from our own Division: `"[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." [Citation.] 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. . . . (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.) Mother never appealed the November 2005 order granting pro se status, and she never challenged her pro se status through appeals from the January 2005 order terminating services and adopting long-term foster care, or the June 2005 order continuing that plan. To allow her to undermine all of those orders now would be an unconscionable disregard of the forfeiture rule and policies it implements."
We also found no constitutional error from allowing her to represent herself on the section 388 petition: "First, we see no basis for any federal constitutional issue. No due process right to counsel exists unless, on the facts, the presence of counsel would have made a determinative difference in the outcome of the proceedings and the absence of counsel rendered the proceedings fundamentally unfair. (In re Claudia S. (2005) 131 Cal.App.4th 236, 251; In re Angel W., supra, 93 Cal.App.4th at p. 1081.) Here, with the termination of reunification services 10 months past, the balance of interests had shifted from reunification to the childs interests in permanence and stability (In re Marilyn H. (1993) 5 Cal.4th 295, 309), and we are cited no authority remotely suggesting that a parent bringing a section 388 petition that far into a plan of long-term foster care has a constitutional due process right to the assistance of counsel. Nor does it appear, on the facts before us, that the presence of counsel would have made a determinative difference. Mother does not even try to argue that a modification petition drafted by counsel would have had any merit, given her lack of progress and refusal to cooperate. Thus, the most that can be said is that any error would be statutory, not constitutional, and tested by the ordinary standard of whether a better result was reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836; In re Angel W., supra, at p. 1082.)"
Later Proceedings
Mother continued for a time to have weekly supervised visits, and Sonny (actually a half-brother) had separate visits that went consistently well, increased in frequency, and progressed from supervised to unsupervised, to overnight. J.W. enjoyed the latter visits very much and grew to form beneficial bonds with Sonnys family and child.
Visits with mother were not so smooth. Weekly supervised visits generally went well but were marked by unpredictable, combative outbursts by mother that would leave J.W. embarrassed, angry with her, uncomfortably cast in a parental role, and emotionally traumatized. In mid-2007, after a particularly traumatizing incident where mother arrived at the visitation center smelling of alcohol and caused a scene with the supervising therapist that required the visitation room to be cleared, visits with mother were canceled altogether for a month and then resumed on a reduced, twice-monthly basis.
J.W. grew to have strong bonds with his foster family and, over time, to remain bonded with mother yet less traumatized by her occasional missed visits and negative behavior. By November of 2007, twice-monthly visits with mother had improved to the point that there was thought of having some supervised visits out in the community, rather than at the visitation center. At the foster mothers suggestion that she and J.W.s CASA be allowed to take mother and child out to dinner in lieu of a regular visit, the social work and J.W.s therapeutic team consented as a good first step toward regular community-based visits. The incident went badly. Mother arrived obviously drunk, loud enough that J.W. asked her several times to lower her voice, verbally abusive and ranting at the supervisors, and unable to give them directions back to her home afterward.
Accordingly, the report for the seventh review, on May 15, 2008, recommended that visits "remain supervised at the Visitation Center, because of the unpredictability of [mothers] behavior." J.W. was nearly age 12, still sensitive and in therapy, and starting on medication to address focus and behavior problems at school. An updated case plan specified the frequency of his visits with mother at twice a month, as before.
At the hearing, mother told the court that she had had two vodka drinks over an hour before the dinner visit, denied being drunk, and felt "there was like a big deal made out of—of nothing." She had asked that J.W. be in court to "speak for himself" about this being made "a bigger deal" than it was. (The report shows that J.W. "did not want to attend this [h]earing," after being advised of his rights.)
The court asked mother, "Did you drink today?" and "You are free of any alcohol right now?" When mother answered "No" and "Yes" to those questions, the court asked if she would submit to a test to determine that. Mother agreed and was led to a probation officer who administered an intoxilyzer-type screening test. The officer testified in court that the results showed a blood-alcohol level of .115. The court expressed its chagrin at being lied to and, after being assured that mother was not driving (the foster mother planned to drive her home), warned: ""[I]n order to have a visit, which will continue to be supervised, you must not have any alcohol in your system. And Im going to order the [agency] to test her prior to that visit [sic]." The court later stressed: "Ms. S[.], its important that you not disappoint yourself, and Im sure [J.W.] doesnt want you to be drinking and affecting him as well. [¶] So in order for you to have those visits, you must be alcohol free."
The court adopted the report recommendations, which included retaining long-term foster care, and set an eighth review for November 13, 2008.
III. DISCUSSION
Both of mothers claims go to perceived deficiencies in visitation as ordered on May 15, 2008, yet it seems highly likely that, with a further review then set to occur on November 13 of last year, both of her claims are moot in light of superseding orders. Any harm from past error, moreover, would seem beyond practical remedy at this point since, as we noted in our last opinion, we are long beyond the critical reunification period. Nevertheless, since no superseding orders have been brought to our attention, we briefly address the claims.
A. Unsupervised Visits
Mothers claim of error in not ordering that visits be unsupervised is a vain attempt to create an issue where none exists. Mother never requested below that her visits be unsupervised, and she never objected to the report recommendation that visits "remain supervised at the Visitation Center[] because of the unpredictability of the mothers behavior," to the social workers proposal at the hearing to "continue supervised visitation," or to the courts ruling to that effect.
"[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." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Mother has forfeited the issue of unsupervised visits by never objecting or asking the court to do what she now urges it should have done (In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [lack of objection waived issues about sibling visitation and lack of reasons for same]), and we have no pertinent ruling to review. Nor is this an important and unsettled legal issue that merits review in our discretion, notwithstanding forfeiture below. (In re S.B., supra, 32 Cal.4th at pp. 1293-1294.) It is a pedestrian question of whether visits needed to be supervised.
In an effort to create a question of law on undisputed facts that we might reach without objection below (see, e.g., In re V.F. (2007) 157 Cal.App.4th 962, 968 [removal and lack of removal finding]), mother proposes that we announce a mandatory duty that the court in a post-permanent-plan review must statutorily order visitation "as liberal as possible" consistent with the best interests of the child. The effort fails because her cited authority only provides that, when a court rejects adoption and termination of parental rights (§ 366.26, subd. (c)(4)), it "shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child" (id., subd. (c)(4)(C)). The detriment finding has no application to the order here, where the court had adopted the permanent plan years before and, at this review, did order continued visits. Nor does mother profit from relying on a command that visitation be "as frequent as possible, consistent with the well-being of the child" (§ 362.1, subd. (a)(1)(A)); that provision applies when the court is "ordering reunification services" (id., subd. (a)). The court here had terminated reunification services years earlier.
Mothers alternative effort to raise a non-forfeited substantial-evidence challenge (see, e.g., In re Javier G. (2006) 137 Cal.App.4th 453, 464 [sufficiency of evidence to justify removal]; In re Erik P. (2002) 104 Cal.App.4th 395, 399 [same as to adoptability]) fails as well. Because the detriment finding she seeks was not required, it follows that she cannot complain of insufficient evidence to support it.
The issue of unsupervised visits is forfeited.
B. Delegation of Authority over Visits
Mother claims that the courts visitation order "failed to give the [agency] any direction regarding the frequency and length of visits" and was thus invalid as improperly delegating "complete discretion to determine whether visits occur[]." We disagree.
The courts ultimate written order was for "Visitation between the child" and "Mother," and that visits be "under the supervision of Children & Family Services, with supervision to be delegated to . . . a responsible adult when deemed appropriate by the social worker." This did not, as mother suggests, leave it to the agency "to determine whether visits" will occur. To the contrary, visits absolutely would occur, and while it might have been better to specify the twice-monthly frequency that had been the norm for mother in recent months, we must read the quoted language together with the approval of the case plan update, which specified the frequency as "2x a month" (and for the half-brother, whatever fit his schedule—"usually once a month"). Further implying that visits were definitely expected to occur as planned was this handwritten order: "If mother has any hint of alcohol on her the visits will be cancelled . . . Dept. to test prior to visits." This, of course, mirrored oral warnings to mother, "you must not have any alcohol in your system," and that the court was "going to order the [agency] to test her prior" to each visit. This reflected concern about the prior drinking incidents, and mothers untruthfulness in court that day about not drinking when, in fact, a screening test showed her to have a blood alcohol level of .115.
Mothers effort to cast the order as leaving visits "completely" within the agencys discretion is therefore baseless. In fact, the court ordered twice monthly visits consistent with the updated case plan it adopted. As conceded in mothers reply brief, the agency "had historically provided [her] with supervised visits," and the updated plan was for them to continue twice monthly. That was everyones apparent understanding below, and no unconstitutional delegation occurred in that regard. (Cf. In re James R. (2007) 153 Cal.App.4th 413, 439.)
To the extent that mother complains of the order that visits be "under the supervision of [the agency], with supervision to be delegated to . . . a responsible adult when deemed appropriate by the social worker," this, too, was a permissible delegation. It was essentially a permitted delegation to the social worker of power to determine details of the visits, including their time, place and manner. (In re James R., supra, 153 Cal.App.4th at pp. 435-436.) We see nothing constitutionally offensive about giving the social worker (a member of the agency statutorily bound to act as a cooperative arm of the juvenile court; id. at p. 443) the power to further delegate physical supervision of visits otherwise controlled by the agency. If the social worker had to personally supervise every visit, this could seriously limit or impede the timing and success of visits.
IV. DISPOSITION
The challenged order of May 15, 2008, is affirmed.
We concur:
Lambden, J.
Richman, J.
All unspecified section references are to the Welfare and Institutions Code.