Opinion
A148667 A150487
10-27-2017
In re A.B., et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. L.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. 4826DEP, 4827DEP)
In Case No. A148667, appellant L.B., father of A.B. and L.B., appeals from orders, filed April 29, 2016 (one as to each child), making jurisdictional and dispositional findings on a consolidated Welfare and Institutions Code section 300 petition filed by respondent Sonoma County Human Services Department (the agency). He raises two issues: (1) the court failed to advise him of his rights to contested jurisdictional and dispositional hearings, and failed to make findings of a knowing waiver of those rights; and (2) the court and the agency failed in their respective duties to consider the children's paternal aunt as a possible placement for the children. In Case No. A150487, father appeals from orders, filed December 2, 2016 (one as to each child), which, among other things, denied father visitation as being detrimental to the children. The agency opposes both appeals and has filed motions to dismiss on the ground that these appeals have been rendered moot by later orders, in which the juvenile court dismissed the consolidated petition and terminated the dependency proceeding as to both children.
All further unspecified statutory references are to the Welfare and Institutions Code.
The children's mother is not a party to these appeals.
In support of its motions to dismiss, the agency requested that we take judicial notice of certain orders. We granted the agency's unopposed December 20, 2016, request to take judicial notice of (a) the court's findings and orders, dated December 2, 2016, in which the court terminated its jurisdiction and dismissed the dependency proceeding concerning L.B., granted mother sole legal and physical custody of L.B., returned A.B. to mother's custody under a family maintenance services program, and directed that father have no visitation because it would be detrimental to the children; and (b) the court's December 16, 2016, exit order for each child. We deferred until this time the agency's August 17, 2017, request to take judicial notice of orders under review in Case No. A150487 and other orders issued subsequent to the orders under review in that case. Father does not oppose the agency's request. We deny in part and grant in part the request for judicial notice. We deny as moot the agency's August 17, 2017, request to take judicial notice of the court's December 2, 2016 orders because those orders are under review in Case No. A150487. We grant the agency's unopposed August 17, 2017, request to take judicial notice of (a) the court's findings and orders following A.B.'s six-month review hearing on July 21, 2017; and (b) the court's order, dated July 21, 2017 and filed on July 26, 2017, in which the court terminated its jurisdiction and dismissed the dependency proceeding concerning A.B., granted mother sole legal and physical custody of A.B., and directed that father have no visitation because it would be detrimental to that child.
For reasons set forth below, we deny the agency's motions to dismiss. We conclude father's challenges to the April 29, 2016, jurisdictional and dispositional findings and orders, and the December 2, 2016, findings and orders, do not warrant reversal. Accordingly, we affirm.
FACTS
A. Background
Mother and father were married in 2000 and divorced in 2008; they are the parents of A.B., born in 2001, and L.B., born in 2002. Prior to the commencement of this consolidated juvenile dependency proceeding, 14-year-old A.B. and 13-year-old L.B. were living with their mother and mother's boyfriend R.M.
In February 2016, the agency filed a consolidated section 300 petition, later amended by a petition filed on March 15, 2016, alleging, in pertinent part, that 14-year-old A.B. came within the juvenile court's jurisdiction under subdivision (b) (failure to protect) and subdivision (c) (serious emotional damage); and 13-year-old L.B. came within the juvenile court's jurisdiction under subdivision (b) (failure to protect) and subdivision (j) (abuse of sibling). The amended petition alleged, in pertinent part: (b-1) mother failed to provide adequate care, supervision and a safe living environment for A.B. A.B. was physically assaulted by R.M. while A.B. was attempting to intervene in an argument between mother and R.M. and although a " 'Stop and Hold' " order was issued against R.M., mother continued to allow him to reside in the home and have contact with A.B.; (b-2) the parents' relationship placed the children at substantial risk of maltreatment in their care, to wit, there was currently an outstanding "No Contact Criminal Protective Order" protecting the mother and children against father, which order was issued on September 11, 2012, and due to expire "on or about September 11, 2017;" and (b-3) father "has a propensity for substance abuse, placing the children . . . at substantial risk in his care, from on or about August 15, 1990 until on or about March 8, 2015, the father had been arrested approximately eight times with three convictions for alcohol/substance abuse related crimes, [including], two arrests for violations of HS 11377(a) Possession of Controlled Substance, and HS 11364(a) Possession of Controlled Substance Paraphernalia; three arrests for violations of VC 23152(a) Driving While under the Influence of Alcohol/Drugs, and VC 23152(b) Driving While under the Influence of Alcohol: 0.08% (twice convicted); two arrests and one conviction of HS 11550(a) Use/Under the Influence of Controlled Substance; one arrest for violations of HS 11378 Possession of Controlled Substance for Sale, and HS 11379(a) Importation/ Sale/ Distribution of Controlled Substance." B. April 29, 2016, Combined Jurisdictional and Dispositional Hearing
Before the combined jurisdictional and dispositional hearing, the agency submitted a report to the court recommending that the court sustain the allegations in the amended petition. The agency also recommended that A.B. be placed out of the home and mother offered reunification services for that child; L.B. remain in the home and mother offered family maintenance services for that child; and father not be offered reunification services under section 361.5, subdivision (b)(13). The agency social worker reported to the court the mother's responses to questions regarding the amended petition's allegations against father. As to the (b-2) allegation, mother stated: " 'That's true. He's violent in our relationship, verbally to the kids and physically with me. He also destroys items in my home.' " As to the (b-3) allegation, mother stated: "Yes, that's true." The agency social worker also questioned the children about the amended petition's allegations against father. As to the (b-2) allegation, A.B. stated: " 'That's true. I remember it; I saw him hit her and I saw him push her down.' " As to the (b-3) allegation, A.B. stated that she "saw her father a year ago in public and that she went up and said hello to him. 'He still uses; I can tell by looking at him.' " The agency social worker also spoke to L.B., however, the child was not specifically questioned about the amended petition's allegations against father.
Section 361.5 provides, in pertinent part: "(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (13) That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention . . . ." Services are not to be provided under section 361.5 unless the juvenile court finds by clear and convincing evidence that reunification is in the child's best interest. (§ 361.5, subd. (c).)
On March 30, 2016, the court convened the consolidated jurisdictional and dispositional hearing. At that time father appeared with counsel. In response to the court's inquiry, father's counsel informed the court that father qualified for court-appointed counsel, and, "upon behalf of" father, counsel was in a position to "waive reading and further advisement of rights," and "so waived." Counsel then made several requests: (1) the court continue the matter to allow the agency social worker to speak with father and prepare an addendum report, and (2) the agency consider the children's paternal aunt for immediate placement of the children. Counsel further advised the court that there was no criminal protective restraining order, but there was a domestic violence restraining order, which could be modified to allow father supervised visits with the children. According to father the matter was not heard in criminal court and there was no police report. The agency's counsel informed the court that she had "the CLETS [California Law Enforcement Telecommunications System]. The restraining order was issued 9/11/2012, expires 9/11/2017. It arose because of an assault in front of the children, sexual assault." The court requested that the Family Court file be brought to the next court proceeding. The matter was continued for two weeks.
Before the reconvened hearing, the agency submitted an addendum report to the court. The agency social worker reported that, "[t]here is presently a restraining order, issued by Family Court, which protects [mother] and both minor children from [father]. The restraining order was issued on September 11, 2012, [and was due to expire] on September 11, 2017." The agency social worker also apprised the court regarding her interview with father concerning the (b-2) and (b-3) allegations of the amended petition. As to the (b-2) allegation, father stated the parties were divorced and he had no desire to contact mother and had not contacted her since 2012. As to the (b-3) allegation, father stated most of the arrests had been dismissed. He further admitted: " 'I've experimented with drugs and I still do sometimes. I do meth sometimes, and smoke marijuana, but I used to have my marijuana card. The last time I did meth was 8 days ago.' " As to substance abuse treatment, father stated: " 'I completed Project Intercept and I also completed a DUI program. I even went to an SLE (sober living environment) in 2011 for eleven months. I went to an AA meeting every day when I was there, and have a letter from the house manager that I was their best resident. In 2014, I completed BASIN outpatient drug program also.' 'I had eight years sober from 2004-2012. Then when I found out my kids were getting abused by [R.M.] and I couldn't protect them I gave up. I'm in recovery but have relapsed. . . . I've been relapsing since 2012.' " The agency social worker also reported that during the marriage, father was convicted of physically assaulting mother and sentenced to seven years in prison. Father asserted that during his prison stay he maintained his sobriety and entered recovery. Upon his release from prison, father had supervised court-ordered visits with the children, which lasted until father's altercation with mother's live-in boyfriend R.M. in 2012, at which time the Family Court issued a restraining order, prohibiting father from contacting his children. According to father, the restraining order was entered as a consequence of his altercation with R.M., after A.B. told father that R.M. was hurting her. Since 2012 father resumed his drug use and had not obtained employment. At the time of his interview with the agency social worker, father was enrolled in job link and living in a tent on a property that he helped care for.
The agency social worker also addressed the issue of bypassing reunification services for father under section 361.5, subdivision (b)(13). The agency report stated: "Review of [father's] criminal justice minutes show that on January 18, 2001, he was court ordered to drug treatment through Project Intercept. Then on July 9, 2001, he was court ordered to the Drunk Drivers Program. In addition, on February 4, 2002, [father] was again court ordered to residential drug treatment. However, he did not have a chance to enter treatment as he was placed in the County detention facility for two years, and then did seven years of prison shortly after. . . . [Father] reports he completed an outpatient treatment program, through BASIN, in 2014. As noted in the criminal history section of this report, since 2014, [father] had two drug related arrests, and reports active drug use for the past four years." Addressing whether reunification with father would be in the children's best interests, the agency report stated, in pertinent part, that the children had no current relationship with father since father's release from prison and there was currently a restraining order protecting the children and mother from father. A.B. was fearful of father as she remembered watching father physically assault her mother. A.B. also reported she unexpectedly saw father in the community a year ago, and she believed he was high on methamphetamine at that time. L.B.'s brief relationship with father before father went to prison was one "centered around watching his [father] physically assault his mother and destroy items in their house." Addressing the likelihood that father would benefit from rehabilitation services, the agency report stated: "[Father] has a criminal history involving consistent drug related and violent crimes over the past 31 years. He has been offered three opportunities to receive treatment and entered a fourth [treatment program] on his own will, and yet he continued to consistently use drugs for the past four years, at least. [Father] describes his drug use as "experimental" and states he is in recovery and is relapsing. This shows a lack of awareness of his drug problem and how it impacts his life. He is presently homeless, living in a tent, and is unemployed. Due to the extent of his drug use and [his] lifestyle, it is unlikely that he will rehabilitate and regain custody within the statutorily[-mandated] time. [¶] . . .Though [father] has enrolled in job link, he has been actively using drugs since the child welfare case opened. He has made no effort to enter drug treatment as of the date of this report," April 8, 2016. The agency social worker noted her concern that mother had sought a restraining order against father because of his angry reaction to the children reporting that they had been assaulted by R.M. Contrary to father's statement that there had been no police report, the agency social worker attached to her report a copy of the police report concerning the incident that led to the issuance of the restraining order. However, the agency social worker stated that after she reviewed the police report that described the 2012 event, she did not feel there was "enough of a safety issue" to deny father visits or deny him communication with his children. Nonetheless, because both children were then adamant they did not want to visit, see, or speak with father, the agency social worker recommended that any visitation be "a gradual process, allowing the children time to acclimate to the idea; likely starting in a therapy session."
On April 29, 2016, the court reconvened the consolidated jurisdictional and dispositional hearing. The father was present with his counsel, along with counsel for the agency, the agency social worker, and counsel for the children. The agency's counsel informed the court, "I think we have a resolution, Your Honor. [¶] . . . [¶] . . . [T]he revised findings and orders have been provided to [the] clerk including language revising the arrangements for possible future contact with the children and visitation by the father, Your Honor, in accordance with the conversation we had earlier." Father's counsel then stated: "Yes. We're prepared to submit. I guess one issue was whether I should prepare any additional forms for modifying the family law restraining order." When the juvenile court judge indicated he would modify the restraining order, father's counsel replied, "I think with that we've reviewed the language regarding the specific visitation issue and we agree that that's appropriate and the court can go forward." The court adopted the proposed findings and orders. In pertinent part, the written orders provided that the amended petition's allegations were found to be true as to each child. In the written order concerning A.B., the court found, pursuant to section 361.5, subdivision (b), that "reunification services shall not be provided to [father] . . . based upon clear and convincing evidence of the following: The father has a history of extensive, abusive, and chronic use of drugs or alcohol and resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition which brought the child to the Court's attention . . . ." Each order also provided that father would not receive visits at that time but he could send cards and letters to the children through the agency, and visits in the future might occur if the children so desired and if therapeutically approved as determined by the children's therapist.
C. December 2, 2016 Six-Month Review Hearing
Before the scheduled six-month review hearing, the court received the agency's status report, dated October 10, 2016. The agency recommended that the court terminate its jurisdiction and dismiss the dependency proceeding concerning L.B., and that A.B. be returned to mother's custody under an agency-supervised family maintenance services program. As to visits with father, there was no specific recommendation as to L.B., but the agency recommended that father not have visits with A.B. as it would be detrimental to that child. The agency social worker reported that during the review period mother had successfully abstained from abusive relationships, that L.B. felt safe at home, and A.B. was ready to return home. Although L.B. struggled in school, he was not worried about his safety at home. The child was "developmentally on track" and had age appropriate interests. L.B. had previously struggled with depression and anxiety, been treated with and then taken off of medication, and he reported he felt " 'fine.' " He had briefly attended therapy sessions during the review period. After five therapy sessions, his therapist recommended terminating therapy as the child was not benefitting from therapy at that time. A.B. had been diagnosed with post traumatic stress disorder, depression, and anxiety. She saw a therapist on a weekly basis and wanted to continue the sessions. A.B. had been alcohol free and drug free for approximately one year and had quit smoking tobacco. She was developmentally on track and had age appropriate interests, albeit she struggled socially.
The agency social worker reported on father's contacts with the children in the following manner: "The father . . . has requested visitation with the children. Both [children] are adamantly opposed to these visits and want nothing do with their father. Both children are very upset that the Criminal Protective Order was modified to allow contact through the [agency]. The children are refusing to accept written correspondence from their father and have asked the [agency social worker] to keep any letters from their father unless he gives them money. The [agency social worker] has complied with their request. Furthermore, [A.B.'s] therapist reports that contact with . . . father would be detrimental to [the child's] mental health."
The court held a contested six-month review hearing, at father's request. The agency submitted the matter on its October 10, 2016, report. Additionally, the agency social worker testified she had investigated the prospective impact of father's visits on the children. The agency social worker believed that at that time father's visits would be detrimental to the children. The agency social worker's opinion was based on her discussions with A.B. and L.B. and a report from A.B.'s therapist. The therapist reported that father had shown hardly any interest in A.B., A.B. had witnessed father assaulting mother, and A.B. was very adamant about having no contact with father. The therapist also reported that when A.B.'s father was discussed, the child became very agitated, curled up on the couch in a fetal position, and, at times, entertained fantasies of his death.
On cross-examination, the agency social worker confirmed father had sent "maybe about five" letters addressed to the children. The agency social worker gave L.B. one letter at the time of the child's birthday and the child declined the letter, stating he did not want to receive any further correspondence. The agency social worker did not thereafter inform L.B. of any additional letters or provide the child with a summary of father's letters because the child made it clear he did not want anything to do with the letters. The agency social worker also gave A.B. one letter and a skateboard from father at the time of the child's birthday. A.B. accepted the skateboard but refused to take the letter. The agency social worker did not deliver any subsequent letters to A.B. because the child was very angry about being given a letter for her birthday and stated she wanted no further correspondence from her father. The agency social worker did not give father's letters or provide a summary of father's letters to A.B.'s therapist.
Father testified that while he was incarcerated he took anger management classes and that once he was released from prison he continued to take classes in child development and creative conflict. During the time he was with his children he never abused them and since 2012 he had not been arrested or detained for violating the outstanding restraining order for which he claimed there was no police report. He explained his relationship with his children. He claimed that approximately two years before the hearing he had seen A.B. in the street, she had approached him, and they spoke for about an hour. Father explained to the child that he had not left her but he had been arrested because of something mother had said. A.B. appeared relieved because she thought father had walked out on the children. Father believed the children were at risk in mother's custody because L.B. was still showing signs of abuse and he was not developing at a normal stage. Father believed he should be able to see the children "24 hours," and "50/50 custody." He believed the children were being coached and were afraid of their mother, who was still involved with her boyfriend. Father had written approximately five letters to the children, and he was disappointed L.B. did not get the gift cards that father had sent to the child. On cross-examination, father testified he had stopped using drugs and the last time he had used any kind of drug or alcohol was March 7, 2016. Father was not in a substance abuse program because he could not afford it.
Following argument by counsel, the juvenile court adopted the revised findings and orders recommended by counsel at the hearing. The court's December 2, 2016, written findings and orders, in pertinent part, denied father visitation because there was clear and convincing evidence that visits would be detrimental to the children at that time.
DISCUSSION
I. Motions to Dismiss Appeals
Pending the appeals, the agency filed motions to dismiss on the ground that father's appeals had been rendered moot by the court's subsequent orders in which the court terminated its jurisdiction and dismissed the dependency proceeding concerning the children. "As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot. [Citation.] However, dismissal for mootness in such circumstances is not automatic, but 'must be decided on a case-by-case basis.' [Citations.]" (In re C.C. (2009) 172 Cal.App.4th 1481, 1488 (C.C.).) For the reasons we now explain, we deny the agency's motions to dismiss.
See footnote 3, ante.
We initially conclude father's appeal from the April 29, 2016 jurisdictional and dispositional findings and orders is not moot. The court made its jurisdictional findings based on allegations of father's conduct in the amended petition and decided to bypass reunification services for father. There is some possibility the true findings on the amended petition and the denial of reunification services could be prejudicial to father in a future dependency or custody proceeding as he would have agency and court jurisdiction history. (See In re N.S. (2016) 245 Cal.App.4th 53, 63.) Thus, assuming merit to his arguments, a reversal of the jurisdictional and dispositional findings and orders could have a practical and beneficial effect for father as it could positively influence future decisions regarding custody or dependency. (See In re Joel H. (1993) 19 Cal.App.4th 1185, 1192-1193.) Thus, we shall address father's arguments challenging the grounds for the issuance of the jurisdictional and dispositional findings and orders. (C.C., supra, 172 Cal.App.4th at p. 1489.)
In his appeal from the April 29, 2016, jurisdictional and dispositional findings and orders, father also asserts that the agency and the juvenile court failed in their respective independent duties regarding consideration of the children's paternal aunt as a possible relative placement for A.B. under section 361.3. Even though the issue is moot, father claims we should address his claim of error and remand the matter with instructions for the agency and the juvenile court to carry out their respective duties under section 361.3. According to father, the resolution of the issue is especially vital because A.B. has already been removed once, the child's subsequent removal is a "real possibility," if the child is removed there will be less time for reunification, and the agency and the juvenile court should be prepared for such a contingency. We conclude father's arguments are unavailing. If A.B. is again removed from mother's custody, we presume the agency and the juvenile court will take appropriate action under section 361.3 regarding potential relative placement based on circumstances existing at that time. We see no reason to remand the matter to assess a potential relative placement that might never be needed. Accordingly, we decline to further address this moot issue.
Likewise, we conclude father's appeal from the December 2, 2016, findings and orders is not moot. In those findings and orders, the court found father's visits would be detrimental to the children. Because the finding of detriment on which the denial of visitation is based "creates the possibility of prejudice in subsequent family law proceedings," we shall address father's arguments challenging those findings and orders. (C.C., supra, 172 Cal.App.4th at p. 1489.)
II. April 29, 2016 Jurisdictional and Dispositional Findings and Orders
Father contends the juvenile court violated his due process rights when it failed to obtain a valid waiver of his right to contested jurisdictional and dispositional hearings before it accepted his counsel's submission based on the parties' "resolution" of the matter. In support of his argument, father cites to case law that holds that it is error of constitutional dimension to accept a parent's waiver of the right to a contested jurisdictional or dispositional hearing based only on counsel's representations. (See, e.g., In re S.N. (2016) 2 Cal.App.5th 665, 672 (S.N.).) However, the agency argues the juvenile court's failure to obtain a personal waiver of father's right to contested jurisdictional and dispositional hearings was harmless beyond a reasonable doubt. We agree with the agency.
Father contends the court's failure to secure his waiver to a contested jurisdictional hearing was harmful because if a hearing had been held he would have been able to successfully challenge certain allegations in the amended petition concerning his purported relationship with mother and the issuance of a criminal protective order. According to father, he would have been able to establish that at the time of the filing of the amended petition, the parents had no current relationship and the restraining order was not a criminal protective order as it did not result from any criminal conviction. However, even assuming merit to father's argument, a reversal of the jurisdictional findings and orders is not required as the court also sustained the allegation concerning father's history of chronic substance abuse that remains unaffected. The record contains overwhelming evidence of father's history of chronic substance abuse including his admission of substance abuse for the four years immediately preceding the filing of the amended petition. This evidence demonstrates, without more, that the children faced a substantial risk of suffering serious physical harm or illness due to father's inability to provide regular care for the children due to father's substance abuse at the time of the combined jurisdictional and dispositional hearing. (§ 300, subd. (b).) "[T]he Legislature has declared, 'The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.' " (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) Consequently, any purported error in the court's sustaining of the allegation concerning the parents' relationship and a criminal protective order prohibiting father's contact with mother and the children was harmless beyond a reasonable doubt. It is not reasonably possible that a contested jurisdictional hearing would have resulted in a more favorable outcome for father. We therefore conclude father has failed to demonstrate prejudicial error arising from the juvenile court's failure to advise him and secure his waiver of his right to a contested jurisdictional hearing. (See S.N., supra, 2 Cal.App.5th at pp. 667, 671-673 [juvenile court's failure to obtain a personal waiver of mother's right to a contested jurisdictional hearing was harmless beyond a reasonable doubt as evidence supporting finding of jurisdiction, based in part on mother's substance abuse and history of substance abuse, was overwhelming and court was convinced outcome of the jurisdictional hearing would have been the same regardless of the error].)
Father also argues the juvenile court erred when it failed to obtain his waiver to a contested dispositional hearing because he could have successfully challenged the court's decision to bypass reunification services under section 361.5, subdivision (b)(13). We disagree. As father concedes, the bypass provision applies when there is evidence the parent has exhibited behavior demonstrating resistance to drug treatment within three years immediately preceding the filing of the petition. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780 [during three year period prior to petition being filed, parent evidenced behavior demonstrating resistance to rehabilitation by resumption of regular drug use after a period of sobriety].) The record contains overwhelming evidence supporting the court's decision to bypass reunification services as a result of father's chronic substance abuse and resistance to treatment. The agency's report reflected that for the four years immediately preceding the filing of the petitions, father had "steadily used drugs," which was "not a relapse, but . . . active addiction." Moreover, at the time of the combined jurisdictional and dispositional hearing father was using drugs and had made no effort to enter drug treatment as of April 8, 2016. This evidence "is an abundantly clear demonstration of" father's "determination to maintain a drug habit" (id. at p. 780), and that "reunification services would be a fruitless attempt . . . because [his] past failure to benefit from treatment indicates that future treatment also would fail to change [his] destructive behavior." (Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.) "When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be an unwise use of governmental resources. [Citation.]" (In re S.B. (2013) 222 Cal.App.4th 612, 622 (S.B.).) While the court may provide reunification services "if it finds, by clear and convincing evidence, that reunification—not reunification services—is in the dependent child's best interests [(§ 361.5, subd. (c),] . . . [t]he burden is on the parent to show that reunification would serve the best interests of the child." (S.B., supra, at pp. 622-623.) Here, father makes no substantive argument that if a contested dispositional hearing were ordered he would be able to demonstrate by clear and convincing evidence that reunification with him would be in the children's best interests. We therefore conclude father has failed to demonstrate prejudicial error arising from the juvenile court's failure to advise him and secure his waiver of a right to a contested dispositional hearing.
Finally, we reject father's related argument that if he had successfully secured reunification services, the juvenile court would have been required to grant him visits with the children. Section 362.1 provides, in pertinent part, that "[a] disposition order granting reunification services must provide for visitation between child and parent 'as frequent as possible, consistent with the well-being of the child.' (§ 362.1, subd. (a)(1)(A).) In addition, section 362.1 mandates '[n]o visitation order shall jeopardize the safety of the child.' (§ 362.1, subd. (a)(1)(B).)" (In re T.M. (2016) 4 Cal.App.5th 1214, 1218 (T.M.).) Relying on C.C., supra, 172 Cal.App.4th 1481, decided by Division Seven of the Second Appellate District, father argues that if reunification services had been offered him, the juvenile court would have been required to offer him visitation unless the court specifically found that "any visitation . . . would pose a threat to the child's safety." (Id. at p. 1491, fn. omitted.) However, we agree with our colleagues in Division Four (In re Matthew C. (2017) 9 Cal.App.5th 1090 (Matthew C.)), and the Third Appellate District (T.M.), that "a juvenile court may suspend or deny visitation pursuant to section 362.1, subdivision (a), if such visitation would be inconsistent with the physical or emotional well-being of the child." (Matthew C., supra, at p. 1102, italics added; see id. at pp. 1101-1102; T.M., supra, at pp. 1219-1220.) Because there is overwhelming evidence that the juvenile court would have denied visitation as not consistent with the children's emotional well-being at the time of the combined jurisdictional and dispositional hearing, we conclude there is no reasonable possibility that father would have achieved a better outcome if we were to remand for a contested dispositional hearing.
III. December 2, 2016 Findings and Orders
Father challenges the December 2, 2016 findings and orders on two grounds, neither of which requires reversal.
Father first argues that the portion of the findings and orders denying him visits with the children should be reversed because that ruling was based on the earlier "faulty process" by which the juvenile court took jurisdiction, sustained the dependency petition, and denied him reunification services. However, father's argument fails as we have found no prejudicial error in the court's jurisdictional and dispositional findings and orders requiring reversal.
Father also argues he is entitled to rescind his counsel's submission and have contested jurisdictional and dispositional hearings because the agency failed to deliver certain correspondence to the children, in violation of the April 29, 2016, orders, which allowed father to send the correspondence. He raises this issue in his appeal from the December 2, 2016, findings and orders because he contends the information supporting his argument was first revealed in the agency's report for the December 2, 2016, six-month review hearing. Relying on cases concerning plea agreements in criminal matters, father argues: "[T]he initial agreement reached between counsel and the [agency] allowed Father to send cards and letters to the children 'through the [agency].' [Record Citation.] That was the benefit that Father received from the submission his attorney entered into on his behalf. And in exchange for that benefit, [father] gave up all of his rights to contest the jurisdictional allegations and his right to seek reunification services. But as we now know, none of Father's letters were given to the children. [Record Citation.] As explained here, this violated both the terms of the plea and Father's right to due process. He seeks the only plausible remedy: the right to withdraw his counsel's submission and contest the allegations against him."
We conclude father has forfeited his appellate claim of error and request for relief. The agency's failure to deliver father's correspondence was reported in its six-month review status report, which was served on both father and his counsel. At the December 2, 2016 hearing, father's counsel specifically questioned the agency social worker about compliance with the April 29, 2016, orders, which allowed father to send the correspondence. At no time did either father or his counsel make a request for any relief because the agency failed to deliver father's correspondence to the children. Having failed to seek any relief in the juvenile court based on the appellate claim of error, we deem the issue forfeited. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221 ["[a] party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court"].)
"Although [our] discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Despite father's arguments to the contrary, "[t]he rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding." (In re James F. (2008) 42 Cal.4th 901, 915 (James F.).) " 'Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.' [Citation.]" (In re S.B., supra, at p. 1293.) And, "the ultimate consideration in a dependency proceeding is the welfare of the child [citation], a factor having no clear analogy in a criminal proceeding." (James F., supra, at p. 915; see In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151 [court found no violation of due process in enforcing forfeiture rule despite the fact that the "issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel"].) On this record, we decline to exercise our discretion to address father's claim of error and request for relief raised for the first time on appeal. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138 ["[i]t is clearly unproductive to deprive [the juvenile] court of the opportunity to correct . . . a purported defect by allowing [father] to raise the claimed error for the first time on appeal"].)
DISPOSITION
The April 29, 2016, jurisdictional and dispositional findings and orders are affirmed. The December 2, 2016, findings and orders are affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.