Opinion
B232785
09-20-2011
In re J.R. et al, Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Andrea Sheridan Ordin, County Counsel, Jeanette Cauble, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK38857)
APPEAL from a judgment of the Superior Court of the County of Los Angeles, Marilyn Mordetzky, Juvenile Court Referee. Affirmed.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Andrea Sheridan Ordin, County Counsel, Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
At the April 5, 2011, disposition hearing, the juvenile court ordered that objector and appellant A.R. (father)—who was at that time incarcerated—would have unmonitored telephone visitation with his children while incarcerated and monitored face-to-face visitation with the children upon his release. The juvenile court, however, refused to order the Department of Children and Family Services (DCFS) to facilitate the telephonic visitation while father was incarcerated, as the parties had requested. On appeal, father contends that the juvenile court erred by refusing to order DCFS to facilitate telephonic visitation while father was incarcerated and by failing to order face-to-face visitation with the children while father was incarcerated.
Because the record on appeal: (i) contained an indication that father expected to be released from incarceration in August 2011; (ii) did not contain any evidence of prejudice from the alleged errors; and (iii) did not reflect that father requested at the disposition hearing face-to-face visitation while incarcerated, we asked the parties to brief the issues of mootness, prejudice, and forfeiture. In response, father contends that the record shows that father did not know when he would be released and that he will be incarcerated "into 2012." As to the prejudice issue, father argues that because there was evidence in the record that he was not having visitation with his children while incarcerated prior to the entry of the disposition order, we can infer that he is currently not having visitation. And, on the forfeiture issue, father asserts that the circumstances in this case either establish that a request for face-to-face visitation while incarcerated would have been futile or require that we make an exception to the forfeiture rule. We affirm the order.
DISCUSSION
A. Mootness
Because the record contained an unqualified representation from father's counsel to the juvenile court that father expected to be in custody through August 2011, we asked the parties to brief the issue of mootness, i.e., whether an event had occurred—father's release from custody—that rendered it impossible for us to grant him effective relief. (In re A.Z. (2010) 190 Cal.App.4th 1177, 1180.) Neither party, however, provided any information concerning father's current custody status. Instead, father cited to a social worker's report indicating that father was incarcerated on October 19, 2010, for a term of three years. That fact alone, however, does not establish that he is currently incarcerated because the record contains no indication as to either the amount of presentence custody and conduct credit or postsentence work-time credit to which he is entitled. (See People v. Duff (2010) 50 Cal.4th 787, 793-794, citing Penal Code §§ 2900.5, subd. (a), 4019, 2933.) Notwithstanding that it is father's burden to show that we can grant him effective relief, inexplicably, his counsel failed to establish that her client is currently incarcerated. As a result, the record remains ambiguous as to father's incarceration status. Nevertheless, because there is no unequivocal indication in the record that father has been released, we will not dismiss the appeal as moot.
B. Prejudice
Father has failed to show prejudice, i.e., that he has had little or no telephonic or face-to-face visitation with his children since the entry of the disposition order. Absent such a showing, we cannot assume that the juvenile court's refusal to order DCFS to facilitate telephone visitation or its alleged failure to order face-to-face visitation has impaired father's right to such visitation. "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. (Cal. Const., art. VI, § 13; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ; Taylor v. Varga [(1995]) 37 Cal.App.4th [750,] 759.) Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 544-546 ; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.)" (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
Father contends that the record does show that he has suffered prejudice from the challenged order because there is evidence that he was not receiving visitation while incarcerated prior to the entry of the disposition order. That contention, however, requires us to assume that, notwithstanding the juvenile court's April 5, 2011, disposition order granting father unmonitored telephonic visitation while incarcerated, the parties are openly violating that order. But without some evidence in the record to support that assumption, we would be relying on a mere presumption of prejudice in contravention of the foregoing authorities.
C. Forfeiture
Father did not request face-to-face visitation before the juvenile court and did not object to the disposition order on the ground it failed to provide for such visitation while he was incarcerated. "[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. (People v. Saunders (1993) 5 Cal.4th 580, 589-590 [20 Cal.Rptr.2d 638, 853 P.2d 1093].) (Footnote omitted.) 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. (Saunders, at p. 590.) [¶] Dependency matters are not exempt from this rule. (See, e.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to obtain supervising agency's assessment of prospective guardian under [Welf. and Inst. Code,] § 366.22, subd. (b)]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [failure to request court to order bonding study]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to challenge setting of [Welf. and Inst. Code,] § 366.26 permanency planning hearing when court determined that no reasonable reunification efforts were made].) [¶] But application of the forfeiture rule is not automatic. (Hale v. Morgan (1978) 22 Cal.3d 388, 394 [149 Cal.Rptr. 375, 584 P.2d 512]; see People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [69 Cal.Rptr.2d 917, 948 P.2d 429] [party's failure to object in trial court does not deprive appellate court of authority].) But the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293, italics added.)
As noted, at the disposition hearing, although father's counsel asked for an order requiring DCFS to facilitate telephonic visitation during incarceration, father's counsel did not state or imply that the juvenile court could or should order face-to-face visitation during his incarceration. He therefore forfeited that contention on appeal, and he has not shown that an exception to the forfeiture rule would be appropriate in this case. For example, he has not shown that this appeal involves a question of law or an issue of great public interest, In re Sheena K. (2007) 40 Cal.4th 875, 881, nor has he shown that the children's safety and welfare are at risk. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1267.)
Citing M.T. v. Superior Court (2009) 178 Cal.App.4th 1170 and In re Valerie A. (II) (2007) 152 Cal.App.4th 987, father argues that it would have been futile for his counsel to request face-to-face visitation while incarcerated in light of the juvenile court's rejection of counsel's request for an order requiring DCFS to facilitate telephonic visitation. We disagree.
The record reflects that father agreed as part of his case plan, to unmonitored telephonic visitation while incarcerated. That agreement was consistent with his counsel's silence at the disposition hearing on the issue of face-to-face visitation and undercuts any suggestion that counsel did not raise the issue because he believed it would be futile. Counsel did not raise the issue because father had agreed to telephonic visitation in lieu of face-to-face visitation.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J. We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.