Opinion
B232710
12-21-2011
In re S.S., Jr., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. G.M. et al., Defendants and Respondents; S.S., Jr., et al., Appellants.
Lee Gulliver, under appointment by the Court of Appeal, for Appellant Minors. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK66788)
APPEAL from orders of the Superior Court of Los Angeles County. Marguerite D. Downing, Judge. Affirmed in part; reversed in part.
Lee Gulliver, under appointment by the Court of Appeal, for Appellant Minors.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendants and Respondents.
The appellants in this case are four minors—S.S., Jr. (now age 18), Y.S. (now age 16), Jose V., Jr. (now age 12), and Christopher V. (now age 9). They appeal from the juvenile court's jurisdictional and dispositional orders made at a rehearing on February 22, 2011. We agree with minors Y.S., Jose V. and Christopher V. that because they were dismissed from the petition filed under section 300 of the Welfare and Institutions Code prior to the rehearing, the juvenile court lacked jurisdiction to make orders as to them. We therefore reverse those orders. Because we find that S.S. has forfeited the issue of whether he received proper notice of the rehearing, we affirm the orders regarding him.
S.S., Sr. was the father of S.S. and Y.S. and is deceased. Jose V., Sr. is the father of Jose V. and Christopher V. Neither he nor the minors' mother, G.M., are parties to this appeal.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On May 14, 2010, following a referral of general neglect, the Los Angeles County Department of Children and Family Services (the Department) filed a non-detained section 300 petition on behalf of all four minors. As amended, the petition alleged that S.S. had been diagnosed with a "chronic life threatening medical condition," and that his mother had repeatedly failed to take him to scheduled medical appointments and to obtain necessary medical care, including monthly IV infusions for the one-year period of February 2009 to February 2010, which resulted in the deterioration of his health. The petition alleged that the mother's severe medical neglect of S.S. placed him and his siblings at risk of harm. The minors were allowed to continue residing with their mother.
The Department subsequently filed several reports indicating that the minors' mother suffered from the same chronic illness as S.S., for which she chose not to receive medical treatment, that she failed to ensure that S.S. received regular medical treatment, that he refused to take his medication, and that all the minors had had months-long absences from school. In August 2010, S.S. was diagnosed with lymphoma and began receiving chemotherapy.
The case was set for adjudication on September 30, 2010. In preparation, the Department reported that while the mother's parenting style was "marginal," she had not placed Y.S., Jose V. or Christopher V. at risk for abuse or neglect. They were enrolled in school and there was no concern at that time regarding their attendance or academic achievement. The Department recommended that the court dismiss them from the section 300 petition and terminate its jurisdiction over them. The minors' attorney agreed, and the juvenile court granted the Department's request to dismiss the section 300 petition as to Y.S., Jose V. and Christopher V. The court then continued adjudication as to S.S., to see if he and his mother were cooperating with his medical treatment.
At the continued adjudication hearing on November 29, 2010, the court granted S.S.'s attorney's motion to dismiss the section 300 petition. The court stated it believed 17-year-old S.S. had a right to determine whether to be treated, that family preservation services would not make a difference, and that while the mother could be a "more active parent," neither she nor the court could force S.S. to do anything he did not want to do.
On December 7, 2010, the Department filed an application for rehearing of the November 29, 2010 adjudication hearing as to S.S., pursuant to section 352. The same day, the Department served copies of the application by mail on counsel for the minors' and their mother. On December 23, 2010, the juvenile court granted the application and set the rehearing for January 11, 2011. On December 29, 2010, the court clerk sent notice of the rehearing to all counsel, S.S. and his mother. Neither S.S. nor his mother appeared at the rehearing on January 11, 2011. The court continued the matter for mother's witnesses to be available, and ordered counsel to notify their clients of the new date.
The continued rehearing took place on February 22, 2011 before the Honorable Marguerite D. Downing. S.S. and his mother did not appear but were represented by counsel. After testimony by the social worker and closing arguments, the juvenile court amended and sustained the petition as to all four minors, declaring them to be dependents of the court. The court then proceeded to disposition. The minors were ordered to remain with their mother, and the Department was ordered to provide family maintenance services and to make a family preservation referral. The court also ordered the mother to complete individual counseling and the minors to be referred to age-appropriate counseling. This appeal followed.
The prior hearings were conducted by Juvenile Court Referee Valerie Lynn Skeba.
DISCUSSION
I. No Jurisdiction Over Y.S., Jose V. and Christopher V.
Y.S., Jose V. and Christopher V. contend that the juvenile court lacked jurisdiction to make orders as to them at the rehearing on February 22, 2011. We agree.
The Department filed a letter brief on August 3, 2011 stating: "Because DCFS previously requested that the juvenile court dismiss the section 300 petitions as to [Y.S.], Jose V., and Christopher V., and did not subsequently ask the juvenile court to assume jurisdiction over these children, DCFS will take no position as to appellants' challenge to the juvenile court's orders and findings regarding these three children."
On September 30, 2010, at the request of the Department and with the consent of the minors' attorney, the court dismissed the section 300 petition as to Y.S., Jose V. and Christopher V. The case then proceeded only as to S.S. At the continued rehearing on February 22, 2011, Y.S., Jose V. and Christopher V. were not mentioned during the testimony or argument. The court nevertheless found them to be persons described by section 300 and declared them dependents of the court in in-home placement. The court lacked jurisdiction to do so. "[O]nce the court dismissed the petition, it had no jurisdiction over the children unless the Department filed a new section 300 petition." (In re Joshua G. (2005) 129 Cal.App.4th 189, 203.) The Department did not file a new section 300 petition. Accordingly, the juvenile court's orders made at the February 22, 2011 rehearing as to Y.S., Jose V. and Christopher V. are reversed.
II. Notice Issue Was Forfeited
Conceding that he received notice of the rehearing, S.S. contends for the first time on appeal that the notice was legally insufficient because it was "so vague and uninformative" that it did not notify him that "dismissal of his petition could potentially be set-aside [sic]and that he might become a dependent of the court." We agree with the Department that S.S. has forfeited this issue on appeal.
Y.S. and Jose V. also contend that they did not receive proper notice of the rehearing. In light of our ruling as to Y.S. and Jose V., we need not reach this issue as to them.
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It is well established that a party cannot assert as error on appeal an issue he failed to raise in the trial court. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.) "A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do . . . ." (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603; Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033, fn. 6 ["Because Rodrigues failed to raise this objection in the trial court, she may not raise it on appeal"].) In In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152–1153, the appellate court held that a father's failure to raise before the juvenile court the issue of whether he received proper notice of a section 366.26 hearing had forfeited his right to raise the issue on appeal.
Here, the rehearing was originally scheduled for January 11, 2011. S.S. was not present, and the court continued the matter to February 22, 2011 for the availability of the mother's witnesses. The court also ordered counsel to notify their clients of the next court date. S.S. was not present at the February 22, 2011 continued rehearing, but his attorney was present. As the Department notes, the parties "announced ready." At no point did S.S.'s attorney object to the notice provided by the court clerk, advise the court that her office had neglected to give notice to S.S., or request a continuance. She cross- examined the social worker and argued on S.S.'s behalf. The issue of notice has therefore been forfeited.
DISPOSITION
The orders made at the February 22, 2011 rehearing as to Y.S., Jose V. and Christopher V. are reversed. In all other respects, the orders made at this hearing are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, Acting P. J.
DOI TODD
We concur:
_______________, J.
ASHMANN-GERST
_______________, J.
CHAVEZ