Opinion
B298551
01-22-2020
In re Royal M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SARAH O. et al., Defendants and Appellants.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Sarah O. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant Vincent M. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Kimberly Roura, Senior Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK23038A&B) APPEAL from orders of the Superior Court of Los Angeles County, Joshua Wayser, Judge, Thomas E. Grodin, Juvenile Court Referee. Affirmed. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Sarah O. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant Vincent M. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Kimberly Roura, Senior Deputy County Counsel for Plaintiff and Respondent.
____________________
INTRODUCTION
Sarah O. and Vincent M., parents of 12-year-old Royal M. and 10-year-old L.M., appeal from the juvenile court's orders terminating their parental rights under Welfare and Institutions Code section 366.26. Sarah contends the juvenile court erred in initially "labeling [her] . . . an alleged parent" and not appointing counsel to represent her and later terminating her parental rights without making a finding she was an "'unfit' parent." Vincent joins in those contentions and argues reversing the order terminating Sarah's parental rights requires reversing the order terminating his. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Detention and Jurisdiction Hearings
In May 2017, while Royal and L.M. were living with their father and his current spouse, Helen M., the Los Angeles County Department of Children and Family Services detained the children and filed a section 300 petition based on allegations of Vincent and Helen's domestic violence and Helen's alcohol abuse. In its detention report the Department stated that Sarah was reportedly incarcerated in Oklahoma, but that the Department had not yet been able to confirm that.
At the detention hearing, which Sarah did not attend, the juvenile court found Sarah was the children's "alleged mother." The court stated, "I'm not making a finding with respect to the mother being the mother, because I have to get some form of documentation. She will be an alleged mother for now." The court ordered the Department to continue efforts to contact Sarah to "figure out what she wants to do . . . [a]nd whether she wishes counsel." The court detained the children and placed them with Vincent's relatives.
In July 2017 the juvenile court held a jurisdiction hearing, which Sarah did not attend. Vincent attended and did not contest jurisdiction. The juvenile court sustained the petition under section 300, subdivision (b), based on the allegations of domestic violence and Helen's alcohol abuse. In the report it submitted for the hearing, the Department included copies of the children's birth certificates showing Vincent and Sarah were their parents, but it does not appear the court made any finding at the hearing regarding Sarah's status as the children's mother. The Department also provided proof it sent notice of the hearing to Sarah by certified mail, care of the Oklahoma jail reportedly holding her. At the hearing the Department reported it was continuing to try to contact Sarah. The court set a disposition hearing for August 31, 2017.
B. The Disposition Hearing
On August 29, 2017 a Department investigator finally spoke with Sarah, who was indeed incarcerated in an Oklahoma jail. Sarah confirmed she received the Department's notice of the jurisdiction hearing and was aware the children were in protective custody. She stated she wanted to participate in the proceedings, but would not be able to call in to the court on the date set for the disposition hearing because she would "be getting bailed out on that date." She said she would be in touch with the Department to discuss her case further and asked the court to appoint counsel to represent her.
On August 31, 2017 the juvenile court continued the disposition hearing to October 26, 2017 and set a September 21, 2017 hearing for possible appointment of counsel for Sarah. On September 8 the Department learned from Sarah's mother that Sarah had been released from jail on August 31 and was living at a Salvation Army shelter in Oklahoma, that Sarah did not have a telephone but used other people's cell phones to call her, and that Sarah wanted to come to California but her probation officer would not allow it for another six months. The Department asked Sarah's mother to inform Sarah of the September 21 hearing and to tell Sarah she should call the courtroom to participate, and also call the Department. Sarah's mother agreed to relay these messages. Three days later the Department learned from the children's caregiver that Sarah had contacted her and said she (Sarah) was currently in a psychiatric facility. The caregiver stated that Sarah had provided no further information, but that the caregiver was aware Sarah had a history of suicide attempts.
The juvenile court continued the September 21, 2017 hearing to October 2, 2017, at which time the court again ordered the Department to contact Sarah about her desire for legal representation. The Department subsequently submitted a report pointing out that Sarah had requested representation on August 29, informing the court that after her release from jail on August 31 Sarah was arrested again and placed in a psychiatric facility, and stating Sarah had not made contact with the Department since August 29.
At the hearing scheduled for disposition on October 26, 2017, the Department informed the juvenile court Sarah was incarcerated again in the same Oklahoma jail and would be there, according to authorities at the jail, for at least another month. The Department also reported it had arranged a telephone call for the following morning between Sarah and her potential court-appointed counsel, and it asked the court to continue the disposition hearing until after the call. The court continued the hearing to allow counsel to represent Sarah and to give her counsel time to "get up to speed on the file."
On November 2, 2017 the juvenile court began the disposition hearing by appointing counsel for Sarah and finding Sarah was the children's mother. The court removed the children from Vincent and ordered reunification services for him. Finding Sarah was a noncustodial parent, and observing Sarah had been arrested numerous times in Oklahoma for alcohol-related incidents in which she was violent with others, including police officers, the court found by clear and convincing evidence that placing the children in Sarah's custody would be detrimental to them. The court indicated it meant this finding to anticipate and comply with what would become section 361, subdivision (d), effective January 1, 2018, which in relevant part provides: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent . . . to live with the child or otherwise exercise the parent's . . . right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's . . . physical custody." The court ordered suitable placement for the children, under Department supervision, and ordered Sarah to participate in drug and alcohol treatment, as well as an anger management program and individual counseling to the extent available while she was in custody.
The juvenile court stated: "I did something somewhat unusual in that when the case first came in, I found . . . that [Sarah] was only the alleged mother of the children, because I did not have paperwork from her. I did not have her before the court. I now have her represented by counsel. I think it's appropriate to find that she is the mother of the minors."
C. The Review Hearings and Termination of Parental Rights
For the six-month review hearing (§ 366.21, subd. (e)) in May 2018, the Department reported the children's current caregiver (a paternal aunt) stated she "was very concerned about [Sarah's] well-being since she posted a picture of herself on facebook with 'slit wrists' (blood dripping from her wrists)." The caregiver also stated that Sarah, having been released from jail on an unknown date, told her she (Sarah) was "turning herself back in[ ]to" the jail in January 2018. The Department reported it later learned Sarah was incarcerated (again) in the jail from mid-January to mid-February 2018, and then transferred to a prison in Oklahoma. At no point had Sarah contacted the Department. At the hearing the juvenile court found that the Department had provided Vincent and Sarah reasonable services, that Vincent's progress in addressing the circumstances necessitating the children's placement was partial, and that Sarah's progress was minimal. The court ordered reunification services for both parents to continue.
For the 12-month review hearing (§ 366.21, subd. (f)) in July 2018, the Department reported Sarah was incarcerated in an Oklahoma prison and "possibly serving a [five-]year sentence." The prison offered "[p]arenting and other classes," but the Department was unable to confirm whether Sarah was enrolled in any of her court-ordered programs. Sarah had been in contact with the children's caregivers, but had "not reached out to the Department." At the hearing the juvenile court again found that the Department had provided Vincent and Sarah reasonable services, that Vincent's progress was partial, and that Sarah's was minimal. The court ordered services for both parents to continue.
For the 18-month review hearing (§ 366.22) scheduled for December 2018, the Department reported that on four occasions between June and October 2018 it mailed letters to Sarah describing her court-ordered case plan and asking her to provide the Department with updates on her progress, but that the Department had not received any calls or letters from Sarah in response. The Department also reported it had "collaborated with" the prison in which Sarah was incarcerated. The juvenile court continued the review hearing to January 9, 2019, and on that date terminated reunification services for Vincent and Sarah. The court set the matter for a permanency planning hearing under section 366.26.
For the permanency planning hearing, initially set for May 2019, the Department reported that Sarah had been released from prison in early March 2019 and was on probation. When a Department social worker spoke with Sarah shortly after her release, Sarah stated she was "working to have her [p]robation case transferred to California, after a 45-day waiting period." The Department also reported that the children had lived with their current caregivers, a paternal aunt and uncle, since July 2017 (and for several months in 2012) and that the caregivers wanted to adopt them.
Prior to the permanency planning hearing, Sarah filed a section 388 petition asking the court to reinstate her services and to take the permanency planning hearing off calendar. Sarah asserted in her petition she had "been released from custody and has numerous certificates of completion for court[-]ordered services including anger management, substance abuse, and parenting." Sarah also asserted she had maintained "an established relationship" with the children despite living in a different state and being incarcerated. The juvenile court set the petition for hearing on June 12, 2019 and continued the permanency planning hearing to that date.
At the June 12, 2019 hearing, the juvenile court denied Sarah's section 388 petition, finding that there had been only a "minor" change of circumstances and that reinstating services would not be in the best interest of the children, particularly given their expressed desire to be adopted. Proceeding to the permanency planning, the court found that the children were adoptable, that no exception to adoption under section 366.26 applied, and that the Department had complied with the case plan. The court terminated Vincent's and Sarah's parental rights. Sarah and Vincent timely appealed from the order terminating their parental rights.
In her notice of appeal, Sarah also stated she was appealing from the order denying her section 388 petition. But in her briefs on appeal Sarah has not argued that ruling was error, thus forfeiting the issue. (See Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12 ["issues and arguments not addressed in the briefs on appeal are deemed forfeited"].) --------
DISCUSSION
A. Sarah Forfeited Her Contentions the Juvenile Court Erred in Initially Finding Her an "Alleged Mother" and Not Appointing Counsel for Her
Sarah contends the juvenile court erred when, at the detention hearing, it found she was the children's "alleged mother" and failed to appoint counsel to represent her. She argues the court should have found she was a "presumed" parent who was thus entitled to appointed counsel and then appointed counsel. Because she went unrepresented for the first several months of the proceedings, she argues, she could not challenge the Department's reports or suggest her relatives as caregivers for the children. Sarah has forfeited these contentions.
At disposition the juvenile court found Sarah was the children's mother and appointed counsel to represent her. Thus, even if the juvenile court committed the errors Sarah suggests the court made, the court committed (and redressed) those errors prior to entering its disposition order—an order from which Sarah did not appeal. Nor did she appeal from any of the postdisposition orders the court made prior to the order from which she now appeals. "Generally speaking, 'an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.' [Citation.] The purpose of this rule is to balance the parents' interest in the care and custody of their children with the children's interest in the expeditious resolution of their custody status." (In re T.G. (2015) 242 Cal.App.4th 976, 984.) By waiting to raise these arguments on appeal from the order terminating her parental rights, Sarah forfeited the arguments. (See In re A.K. (2017) 12 Cal.App.5th 492, 501 ["If father believed the social worker had not complied with statutory requirements in pursuing the paternal grandmother as a relative placement, he could have raised the issue in the juvenile court and, thereafter, on appeals from the disposition order, the 12-month review order, or other appealable orders. He did not do so. He therefore forfeited his objection."]; In re A.A. (2012) 203 Cal.App.4th 597, 606 [mother's failure to challenge an earlier ruling by the juvenile court, "despite two opportunities to raise the issue in this court (on appeal from the disposition hearing . . . and by way of writ following the setting of the § 366.26 hearing), forfeited any constitutional challenge"]; In re A.S. (2009) 174 Cal.App.4th 1511, 1515, fn. 3 ["An appeal from the most recent order in a dependency case may not challenge prior orders for which the statutory time for filing an appeal has passed."]; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151 ["an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order," including where a violation of the right to counsel is asserted].)
B. The Juvenile Court Made the Requisite Finding Sarah Was an Unfit Parent
Sarah also contends the juvenile court prejudicially erred in terminating her parental rights without making a finding she was an "unfit" parent. She argues "[i]t is well settled that, before the parental rights of a non-offending parent can be terminated, there must be a finding that the parent in question is 'unfit.'" The argument is without merit.
It is true that, "by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit." (In re Frank R. (2011) 192 Cal.App.4th 532, 537; see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) But "[w]ith respect to the necessary finding of unfitness, 'California's dependency scheme no longer uses the term "parental unfitness," but instead requires the juvenile court make a finding that awarding custody of a dependent child to a parent would be detrimental to the child.'" (In re Frank R., at p. 537; accord, In re D.H. (2017) 14 Cal.App.5th 719, 730.) Moreover, "[t]he finding need not occur at the section 366.26 hearing; 'due process is satisfied if [the finding is made] at an earlier stage, and parental rights terminated later based on the child's best interest.'" (In re D.H., at p. 730; see Cynthia D., at p. 253 ["By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness."].) The finding, however, "must be based on clear and convincing evidence." (In re D.H., at p. 731; see In re Z.K. (2011) 201 Cal.App.4th 51, 65 ["Due process requires that a finding of detriment be made by clear and convincing evidence before terminating a parent's parental rights."].)
When the juvenile court removed the children from Vincent at disposition, it did not place them with Sarah because the court found, by clear and convincing evidence, that permitting Sarah to live with them or otherwise exercise her right to physical custody of them would be detrimental to the children and present a substantial danger to their safety and well-being. (See § 361, subd. (d).) That finding satisfied the detriment-finding requirement. (See In re D.H., supra, 14 Cal.App.5th at pp. 730-731 [the detriment finding supporting termination of parental rights "may be made at the dispositional stage"]; In re P.A. (2007) 155 Cal.App.4th 1197, 1212 [requirement was satisfied at disposition when the juvenile court found by clear and convincing evidence that returning child to parents "would be detrimental to the child"]; see also In re Z.K., supra, 201 Cal.App.4th at p. 67 ["To support the termination of mother's parental rights, the department must point to specific evidence from which we can reasonably imply a finding by the juvenile court that it would be detrimental to place the minor with mother," italics omitted].) Any challenge Sarah might have made to that finding she forfeited by not appealing from the disposition order. (See In re A.S., supra, 174 Cal.App.4th at p. 1515, fn. 3.)
C. There Is No Basis For Reversing the Termination of Vincent's Parental Rights
Vincent joins in Sarah's contentions and argues that, because we must reverse the order terminating Sarah's parental rights, rule 5.725 (a) of the California Rules of Court requires us to reverse the order terminating his parental rights. (See Cal. Rules of Court, rule 5.725 (a)(1) ["The court may not terminate the rights of only one parent under section 366.26 unless that parent is the only surviving parent; or unless the rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state; or unless the other parent has relinquished custody of the child to the welfare department."].) Because Sarah's contentions are without merit, there is no basis for reversing the juvenile court's order terminating Vincent's parental rights.
DISPOSITION
The orders terminating Sarah's and Vincent's parental rights are affirmed.
SEGAL, J. We concur:
PERLUSS, P. J.
FEUER, J.