Opinion
G053539
01-04-2017
In re M.O., et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.P., et al., Defendants and Appellants.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant, S.P. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant, M.O. Leon J. Page, County Counsel, Karen L. Christensen, Supervising Deputy County Counsel, and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP024821-001, DP024822-001) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Dennis Keough, Judge. Affirmed. Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant, S.P. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant, M.O. Leon J. Page, County Counsel, Karen L. Christensen, Supervising Deputy County Counsel, and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
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S.P. (Mother) and M.O. (Father) appeal from a judgment terminating their parental rights over their son, M.O. and daughter, D.O. They contend substantial evidence does not support a finding the minors are adoptable. We find the parents' submission in the lower court on the report and recommendation of respondent, Orange County Social Services Agency (SSA), resulted in a forfeiture, thereby preventing the parents from raising error on appeal. Accordingly, we affirm.
FACTS
Mother and Father were not married but had been in a relationship on and off for 14 years when this case began. The parents have a history of domestic violence and drug use. In April 2014, Mother, eight-year-old M.O., and five-year-old D.O., were residing at a shelter where they had been for the past four months due to domestic violence. Mother was discharged from the shelter for using drugs and was immediately arrested for violating probation for alcohol/drug use. Mother had a 14-year history of substance abuse. Father was incarcerated at the time, so the children were detained and placed with their maternal aunt. Maternal grandmother also lived in the home and assisted with the children.
SSA filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivisions (b) and (g). In May 2014, the court sustained the petition finding the minors were dependents of the juvenile court. The court offered Mother and Father 18 months of reunification services, but neither fully complied with the reunification plan. In January 2016, the court terminated reunification services and scheduled a section 366.26 selection and implementation hearing, and SSA began permanency planning for the minors.
All further references are to the Welfare and Institutions Code.
Section 300, subdivision (b)(1), provides a child is within the jurisdiction of the juvenile court, and the court may adjudge that person to be a dependent child of the court if "the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . ." A child may also be declared a dependent under subdivision (g) when "the child has been left without any provision for support" or when "the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child . . . ."
The petition's sustained allegations included that Mother was arrested and incarcerated for violating the terms of her probation, including testing positive for methamphetamines and continuing to contact Father despite being told not to; Mother was terminated from her rehabilitation program due to failure to make progress and her continued drug use; Mother had an unresolved substance abuse problem that included abuse of methamphetamines; Mother used methamphetamines in front of the minors; mother had a criminal history that included arrests and/or convictions for inflicting corporal injury on a spouse/cohabitant, theft, burglary, possessing bad checks, possessing controlled substance for sale, and battery; Father was arrested and incarcerated for violating his probation including testing positive for methamphetamines, possessing drug paraphernalia, and failing to report to probation; the parents had engaged in verbal and physical altercations in front of the minors; the parents' domestic violence included Father pulling Mother by the hair, hitting her, punching her head, and causing her to sustain a black eye, and Mother scratching, hitting and stabbing Father; Father had an unresolved substance abuse problem that included the abuse of methamphetamines; and Father had a criminal history that included arrests and/or convictions for possessing marijuana for sale, theft, driving with a suspended license, giving false information to a police officer, battery, assault, reckless driving, possessing narcotic controlled substance, driving with a suspended license, burglary, and driving without a license.
The minors stayed with maternal relatives until September or October 2015 when they were placed with the paternal grandmother (Grandmother). After Grandmother violated SSA rules and a court order by allowing Mother to stay overnight at her home, in January 2016, a paternal aunt (Aunt) stated she would be willing to relocate to Orange County to care for the children. By at least March 2016, Aunt was also living with the children in Grandmother's home. At that time, the court appointed Aunt as the children's educational rights holder.
In April 2016, SSA filed a 32-page "366.26 WIC Report" (the Report) in preparation for the section 366.26 selection and implementation hearing. It consists primarily of a lengthy "permanency planning assessment." According to the Report, Aunt and her husband were identified as prospective adoptive parents for the minors. However, they had not yet completed a home study, which was scheduled to occur by the end of April 2016, one month before the hearing date. SSA reported placement of the minors together in the same home appeared appropriate.
The Report stated the social worker met with Aunt and the children. The prospective adoptive father was residing in Santa Cruz (in the process of moving to Orange County) and not available for an interview, and SSA noted the social history on him was unknown at that time. Nevertheless, Aunt stated he was aware, willing and able to adopt the children. Aunt and her husband had been married since 2010, and they did not have children. Current criminal clearance checks had not been completed, but the California Sex Offender Locator Map (Megan's Law) was completed, and there were no findings or matches for the prospective adoptive parents' address. The Child Abuse Registry clearance also came back clear, though the Report does not specify whether Aunt and her husband, or just Aunt, was the subject of the search. Other information in the Report concerning the duration and character of the relationship with the children, capability to meet the children's needs, understanding the legal and financial rights and responsibilities of adoption, kinship/permanency planning mediation, adoption agreement status, and commitment to permanent plan, all relate only to Aunt. There was no inquiry of her husband. The minors did not understand the process of adoption, but they expressed a desire to remain placed with Grandmother and Aunt. There is no indication the minors had ever met the prospective adoptive father.
M.O. was 10 years old at the time of the section 366.26 hearing. He wears corrective lenses and suffers from asthma requiring use of a nebulizer and albuterol as needed. M.O. participates in developmentally appropriate extracurricular and social activities and a Boys and Girls Club after school program. He attends church weekly. He likes video games, collecting Pokemon cards and Shopkins, and drawing. He is described as quiet and soft spoken. He is interested in football. He exhibits some challenges with interpersonal skills and at times discusses inappropriate topics with his peers. M.O. has difficulty making friends, and has been bullied at school. His teacher told the social worker M.O. likes to ruminate on issues and encounters challenges with social awareness.
A fourth grader at the time of the hearing, M.O. has a learning disability and was eligible for and receiving services through an Individualized Education Program (IEP). Although the Report states a copy of M.O.'s most recent IEP is included with the report, it is not part of the record on appeal. M.O. was enrolled in an English language immersion program and resource specialist program. The Report does not expand on the resources offered by these programs or explain how M.O. is doing with them. However, SSA reported M.O. is working with a tutor, and the tutor has a copy of his IEP. In an earlier report, Mother explained M.O. repeated first grade, because he had trouble completing his homework.
We cannot discern whether it was provided to the juvenile court. The parties have not referenced it in their briefs.
Emotionally, M.O. had been attending counseling. M.O.'s treatment goals were to improve communication/verbalization of feelings and thoughts regarding the current situation, to learn coping skills to manage anxious/worrying thoughts regarding past experiences, and to increase availability to express feelings through activities of self-expression. However, due to the distance of the program and because M.O. did not bond with the therapist, he ceased treatment. The plan was for M.O. to receive counseling through the Boys and Girls Club.
D.O. was seven years old at the time of the section 366.26 hearing. She also wears corrective lenses. In February 2016 she fell and broke her left wrist, and in March 2016, she was diagnosed with anemia and prescribed iron. She is described as a happy and sweet child who likes to engage with others but is somewhat shy. She has no challenges making and retaining friends. Like M.O., D.O. participates in developmentally appropriate extracurricular and social activities including a Boys and Girls Club after school program and weekly church. She enjoys drawing, playing handball, playing Mindcraft and things associated with Monster High, My Little Pony and Littlest Pet Shop. She wants to participate in karate.
A second grader at the time of the hearing, D.O. has no learning disability or other special education need. Emotionally, she too had attended counseling with treatment goals identical to M.O.'s. She ceased counseling due to the distance of the program, and the plan was for D.O. to resume counseling through the Boys and Girls Club.
The minors' therapist did not provide individualized reports for them, but the Report attributes the following to the therapist. She said the minors understood the reason for the referral, and that they were both upbeat and positive during sessions and seemed to enjoy engaging in role plays and activities. They both missed their parents. The therapist offered no opinion on either child's prognosis or whether either child had met the treatment goals.
SSA concluded it is likely the minors will be adopted and that prospective adoptive parents had been identified. Although the minors maintained telephone contact with their parents, neither Mother nor Father was capable or prepared to address the minors' daily needs. SSA recommended the court find there is clear and convincing evidence it is likely the minors will be adopted, and that the court order the parental rights of the minors' Mother and Father terminated pursuant to section 366.26.
Neither Mother nor Father appeared at the May 2016 section 366.26 hearing. Mother's whereabouts were unknown. Father was incarcerated, but he refused to be transported to court for the hearing. Mother's counsel requested a continuance, because she had not heard from her client. The court found no good cause for a continuance and denied the request. SSA presented the Report as its sole evidence. Neither Mother's counsel nor Father's counsel presented any evidence or advanced any argument. Instead, Mother's counsel stated, "I am submitting on the reports and the recommendations pursuant to Richard K. and Rosa S. and do not waive for appellate purposes my client's right to appeal." Father's counsel joined. When asked by the court whether anyone wished to cross-examine the preparer of the Report, Mother's counsel, Father's counsel, and the minors' counsel all declined. All counsel also signed a form entitled "Proposed Orders & Findings Re Contested WIC 366.26 Hearing" by affixing their initials and signatures on the form. The handwritten word "submit" appears near the initials and signatures of counsel for the parents. The proposed findings and orders include, inter alia, that it is likely the children will be adopted and that adoption of the children and termination of parental rights are in their best interest.
Counsel was referring to In re Richard K. (1994) 25 Cal.App.4th 580 (Richard K.) and Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181 (Rosa S.).
The court agreed with SSA's recommendation and found by clear and convincing evidence pursuant to section 366.26, subdivision (c)(1) it is likely the minors will be adopted, that adoption of the children and termination of parental rights are in the best interest of the children, and a permanent plan of adoption is appropriate. The court ordered Mother's and Father's parental rights terminated. Mother and Father appeal.
DISCUSSION
Mother and Father contend there was insufficient evidence that the minors were generally adoptable or specifically adoptable, primarily because SSA's adoption assessment was inadequate and there exist legal impediments to adoption. Each parent also joins in the argument of the other. (Cal. Rules of Court, rule 8.200(a)(5).)
We deem the "permanency planning assessment" portion of the Report to be the adoption assessment required by section 366.21, subdivision (i)(1). (See § 366.26, subd. (c)(1) ["If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption"].)
We need not address the issue of adoptability, because Mother and Father forfeited their right to raise the issue on appeal when they submitted on SSA's recommendation at the hearing. Over 22 years ago, the court in Richard K. determined a parent's submission on the recommendation constituted acquiescence in or yielding to the social worker's recommended findings and orders, as distinguished from mere submission on the report itself. (Richard K., supra, 25 Cal.App.4th at p. 589.) "The mother's submittal on the recommendation dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders." (Ibid., italics added.) "If, as occurred in this case, the court in turn makes the recommended orders, the party who submits on the recommendation should not be heard to complain. As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware." (Id. at pp. 589-590.) Thus, in Richard K., the court held, "by submitting on the recommendation without introducing any evidence or offering any argument, the parent waived her right to contest the juvenile court's disposition since it coincided with the social worker's recommendation. He who consents to an act is not wronged by it." (Id. at p. 590.)
By submitting on only the report, the parent agrees to the court's consideration of its information as the only evidence in the matter, and the court will not consider any other evidence. (Richard K., supra, 25 Cal.App.4th at p. 589.)
In citing with approval Richard K., a different panel of this court observed in Rosa S., "[r]esponsibility for due process does not end with the court. Juvenile court attorneys contribute to the problem when they attempt to expedite the process by participating in use of a form which on its face is ambiguous. Cryptic notes on signature lines do not adequately state a party's position. It is incumbent upon attorneys to devote sufficient time and effort to afford their clients proper representation. Efficiency and effectiveness are not mutually exclusive. It is often wise to spend a prudent amount of time at the outset so as to avert future trouble." (Rosa S., supra, 100 Cal.App.4th at p. 1188.) While the court in Rosa S. did not need to decide the waiver/forfeiture issue because it exercised its discretion to hear mother's challenge which was purely a question of law (ibid.), we agree with the general tenor of the court's admonishment to juvenile court attorneys.
We also agree with Richard K. Waiver and forfeiture doctrines are woven into the fabric of appellate procedure. Waiver is the intentional relinquishment or abandonment of a known right. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 521, fn. 3.) Forfeiture is the failure to make a timely assertion of a right. (Ibid.) Although the terms "forfeiture" and "waiver" are often used interchangeably, it is more accurate to use the term "forfeiture" when referring to "'the loss of the right to raise an issue on appeal due to the failure to pursue it in the trial court.'" (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912.)
"'Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.'" (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011.) "'"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.'" (Ibid.) "Issues presented on appeal must actually be litigated in the trial court — not simply mentioned in passing." (Ibid.) Hence, a "party who fails to alert the trial court to an issue that has been left unresolved forfeits the right to raise that issue on appeal." (Araiza v. Younkin (2010) 188 Cal.App.4th 1120, 1127.)
Here, Mother's and Father's submission on SSA's recommendation in the lower court is fatal to their appeal. Mother argues on appeal that her trial counsel was inexperienced and her actions should be excused. The argument is void of legal support. Trial counsel's statement she did "not waive for appellate purposes my client's right to appeal" does nothing to resurrect her submission on the recommendation. Trial counsel's words were hollow and meaningless when coupled with her decision to forego raising an issue on which the trial court had an opportunity to rule. Father offers no explanation for his trial counsel's act in joining in Mother's submission on the recommendation. Neither parent addresses the ramifications of both counsels' signature and initials near the handwritten word "submit" on the court form containing proposed orders and findings consistent with the court's final order. While we need not decide whether the word "submit" as handwritten on the form equates to submission on the record, or the recommendation, or both, because here the reporter's transcript makes clear the parents submitted on both, we caution the parties and counsel that counsel's signature on these types of court forms, together with the handwritten word "submit" may very well result in the forfeiture of issues on appeal. This is acutely possible when, as here, the parents presented no evidence or argument and declined to cross-examine the preparer of the only evidence at the hearing from which the appeal is taken.
Mother does not raise ineffective assistance of trial counsel.
Our decision in In re Gregory A. (2005) 126 Cal.App.4th 1554 does not require a different result. There, the mother challenged the sufficiency of the evidence supporting the juvenile court's finding the minor would be adopted within a reasonable time. (Id. at p. 1557.) Respondent argued the issue of adoptability was waived because the mother did not raise the issue at the trial level. (Id. at p. 1559.) We concluded since the only evidence supporting the adoptability finding was the permanency hearing report admitted without objection, mother did not waive her right to argue on appeal the sufficiency of the evidence supporting the adoptability finding contained in the report. (Id. at p. 1561.) In re Gregory A. is distinguishable, because in In re Gregory A., the mother did not submit on the recommendation, she merely failed to object. Here, by submitting on the recommendation, Mother and Father acquiesced to SSA's recommendation, including the adoptability finding. As a result, the recommendation became the order of the court.
While we have no way to determine the reason for each parent's decision to submit on SSA's recommendation in this case, we glean nothing manifestly untoward from our review of the cold record. Nevertheless, we note if a party makes the decision at trial to submit on SSA's recommendation — orally or by signing off on proposed orders and findings — there exists a palpable risk there will be nothing appellate counsel or the appellate court can do about it.
DISPOSITION
The postjudgment order terminating parental rights is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.