Opinion
F075131
11-14-2017
In re Valerie A. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. J.O., Defendant and Appellant.
Nicholas Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. Nos. 517520 & 517521)
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Nicholas Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
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FACTS
On February 25, 2016, the Stanislaus County Community Services Agency ("Agency") filed a Welfare and Institutions Code section 300 petition concerning minors A.W. (then 8 years old); Valerie A. ("Daughter") (then 13 months old); and "Son" (then 3 months old). Appellant J.O. ("Mother") is mother of all three children. The petition lists Valentino A. ("Valentino") as the alleged father of Daughter and Son. Mother claimed A.W.'s father was "unknown." Later in the case, paternity testing showed Anthony W. is A.W.'s biological father.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
To further the privacy interests of those involved in this case, we will refer to the two minors as "daughter" and "son." We include Valerie's first name because it is already in the public record.
On February 3, 2016, law enforcement conducted a security check at the home where Mother and her boyfriend, Valentino, resided. Valentino had left the area looking for Mother. An infant could be heard crying loudly inside the residence, and several knocks on the front door went unanswered. Eventually a white female answered the door holding the child, which was no longer crying. The female was uncooperative and prohibited entry into the home. Valentino returned to the residence and was acting angry and erratic. Soon thereafter, Valentino reportedly smashed out the front window of the home. Again, the female did not want to cooperate. Less than an hour later, another call was made because there was a "loud domestic dispute inside the home."
Law enforcement apparently left before Valentino smashed out the front window. There is a notation in the detention report that "MRP was soon called back to the home" (italics added) as Valentino had smashed out the window. MRP stands for Mandated Reporting Party.
On February 16, 2016, social worker Melody Trantham contacted A.W. at school. A.W. said she lives at home with her mother, father, little brother and little sister. A.W. said she gets enough food and her parents "get along well." But when Trantham asked A.W. what it was like when her parents get mad at each other, A.W. said it "looks ugly," and they have each hit the other in the face. Sometimes her father would hit her mother while her mother was holding Daughter. Father hit A.W. on the cheek during one domestic dispute in January 2016. A.W. also said her stepfather drinks alcohol, and her parents fight when he drinks because he gets angry. At a home visit later that day, Valentino denied any domestic violence in the home. Valentino did not allow the social worker into the home. Also that same day, Mother called Trantham and said she was upset she had spoken to A.W. without her consent.
The detention report uses "father" and "stepfather" throughout the narrative. It appears both are used to refer to Valentino, but we have retained the words used in the report.
On February 19, 2016, Mother and Valentino met with Trantham at the Agency. Mother denied ever "getting physical" with Valentino. Apparently trying to explain the events of February 3, Valentino claimed that he had reported a kidnapping when Mother and the children did not return from the gas station on time. He did not have a key to the house, so he broke the windows to get inside the home. Mother said she had actually gone to the movies with the children.
Valentino said A.W. "is being brainwashed by family members because they do not want him and [Mother] to be happy in their interracial relationship." After initially claiming they would take a drug test, Mother and Valentino ultimately refused to do so.
Trantham drafted a safety plan, which stated Mother and Valentino would refrain from domestic violence and physical discipline. Valentino became antsy and said he wanted to speak to his attorney. Valentino stepped out and, when he returned, said that his brother told him not to agree to anything at this time. As a result, Valentino and Mother refused to agree to the safety plan. Trantham told them about family maintenance services, but they said they would not agree to anything and did not need services.
On February 23, 2016, the children were placed in protective custody. A neighbor reported that Valentino threatened to hit him with a metal bar, shoot him with a .40-caliber gun, and have his "homies" beat him up. The neighbor said that Valentino threatened other neighbors in a similar fashion. The neighbor also has had to call the police "a lot" because Valentino and Mother were "always screaming at each other."
Valentino has an extensive criminal record. Mother was arrested for possession of cocaine for sale in 2007. (Health & Saf., § 11351.5.)
After the children were removed, the Agency provided referrals for services. Mother and Valentino said that participating in services would be "admitting guilt." They declined to participate in an "SUD assessment," saying they do not have any substance abuse issues. Mother and Valentino did complete an intake assessment at the Parent Resource Center but only took one class thereafter and did not return as of the disposition report.
SUD presumably refers to "substance use disorder."
At the end of a visit on March 10, 2016, Valentino said "there are issues with certain family members and they don't want them having contact or being able to see the children."
The Agency attached a proposed case plan to its jurisdiction/disposition report filed April 5, 2016. The case plan included a section called "Visitation Schedule." The section indicated that Mother and Valentino would have a minimum of one visit per week for two hours, and the social worker would have discretion to increase duration and frequency of visits. The section also indicated that the children's "grandparent" would have "a minimum of once a month visitation."
After a contested jurisdiction and disposition hearing, the court ruled that "the allegations that the parents have substance abuse issues were not proved by a preponderance of the evidence." The court dismissed those allegations. The court sustained the allegations pertaining to domestic violence and found the court had jurisdiction under section 300, subdivision (b).
Hearing on June 6, 2016
At a subsequent hearing on June 6, 2016, Mother's counsel requested that portions of the case plan concerning substance abuse be stricken because the court found the petition's substance abuse allegations unproven. The court granted the request, but otherwise approved the case plan. Afterwards, the court asked, "Anything else?" Mother's and Valentino's counsel each responded, "No."
A.W.'s Statements to the Social Worker
On July 11, 2016, A.W. told a social worker that she did not want to speak with or visit with Valentino. A.W. said that at the last visitation, "the two babies accidentally bumped heads with one another. [Valentino] cussed and yelled loudly as well as got very angry with her mother who was busy making a bottle for the baby and did not prevent the [babies from bumping heads]." A.W. was afraid Valentino would hurt Mother. A.W. wanted to continue to visit with Mother. A.W. also asked if the Agency had found her father Anthony W. A.W. said Mother and Valentino claimed to not know who Anthony W. is; they actually both do.
Anthony W.
On July 25, 2016, Anthony W. contacted the Agency claiming paternity of A.W. Subsequent paternity testing showed he is A.W.'s biological father. Anthony indicated he wanted to raise and care for A.W.
Hearing on September 7, 2016
The court held a review hearing on September 7, 2016. The Agency reported that both parents "are very slow in engaging services." Nonetheless, the court increased their visitation to two hours, twice per week.
Status Review Report
A status review report filed November 4, 2016, indicated that A.W. told her foster parents that Valentino had said she was going to be punished for calling her foster parents "Mom" and "Dad."
The Agency's social worker logs were attached to the report. Those logs indicate that on October 26, 2016, A.W. said that during a visit she saw her Aunt Debbie and called out to her. In response, Mother slapped A.W. in the face.
A related case note from a social worker stated: "[A]t the last hearing the mother's [attorney] [f]illed in for the mother in her absence. The Judge has ordered that the children are to no[t] have any contact with the maternal family. I am waiting for the court order. I will send [] a copy when I get it." However, the minute order from the relevant hearing reflects no such order.
An updated case plan was attached to the report. The case plan again provided for a minimum of once per month visitation for the children's grandparents.
Hearing on November 15, 2016
On November 15, 2016, the court held a "six-month review hearing, as well as a progress review as to [A.W.] only." The court stated that a conference had been held before the matter was called in open court. The court said it was not aware that A.W. was having to miss school two times per week to attend visits. The court set a contested hearing and ordered that "in the meantime, visits between [A.W.] and her parents will be reduced to one time per week" while A.W. was in school.
Contested Hearing on December 15, 2016
A contested hearing was held on December 15, 2016. Children's counsel read a letter from A.W. to the court: "Dear, Judge, can you tell my mom that I want to visit my Aunt Debbie, papa, and the rest of my mom's side of the family. My mom's side of the family is the ones that makes me feel safe, my foster family, and my dad's family. I don't want to go back with my mom, but can you tell my mom that I said that Aunt Debbie and papa love her." "Papa" referred to A.W.'s grandfather.
Mother's counsel made an offer of proof that Mother would testify that "on November 1st she received a voicemail from [A.W.] indicating that she did not want to visit with her because [Mother] was not allowing ... [A.W.] to visit with the maternal relatives. And, also, at the end of the voicemail indicated, You know Aunt Debbie loves you." The offer of proof also indicated Mother would testify that she was concerned A.W. "has been told inappropriate things about this case, about Mr. Valentino that has impacted her relationship with Mr. Valentino." The court accepted the offer of proof.
During argument, counsel for the Agency stated:
"The other thing that I wanted to bring up is that I believe it was discussed briefly at our last hearing, we did want to add the relative visits with [A.W.] and the maternal relatives given the wishes of [A.W.] under the "grandparent visitation" and including "relative visitation" as well.
"The RFA [resource family approval] process has begun with the relatives, and we do understand there are relatives interested in placement, and the Agency is willing to work with those relatives to determine if it is appropriate.
"The concern that was raised is whether or not the relatives were willing to take all three children, and we wanted to ensure, if at all possible, to keep the sibling set together."
See section 16519.5.
Near the beginning of announcing its ruling, the court said:
"I would really suggest - we have a new year coming. We should all start a new leaf and just let the children love whomever is in their lives, encourage that love, and let the children know that it is okay to love whomever they want to love, and I think that that love will be reciprocated and understood."
The court also said it did not "believe it is maternal relatives that have all of the sudden turned [A.W.] against mom."
The court "approve[d] the case plan with the modifications made on the record." Mother's counsel then said, "[Mother] and [Valentino] were told that visits with the younger two children [(i.e., Daughter and Son)] can now be in the community, and that's not reflected in the case plan." The court asked whether that issue was committed to the social worker's discretion and the Agency's counsel responded that that was the Agency's preference, but it was not in the case plan.
The court concluded the hearing with the following:
"All right. Then the case plan will also be amended to allow social worker discretion to allow in-the-community visits.
"And I thought at one time there were in-the-community visits between [A.W.] and [Anthony W.] as well; so I think it would be appropriate for there to be social worker discretion for in-the-community visits with all three of the parents with their respective child or children, and so the case plan will be amended.
"I will have to ask the social worker to file an amended case plan...."
Amended Case Plan
An amended case plan was filed January 2017. The case plan indicated that "[a]t the request of the grandparents, the social worker to arrange a minimum of once a month visitation." Another section reads as follows: "CHILDREN - OTHER [Son, Daughter, A.W.]
| Method | Times | Frequency | Beginning Date | Provider |
|---|---|---|---|---|
| In-Person | 1 | Monthly | 11/15/2016 | [J.R.] |
Description
[A.W.] may visit with her maternal family once a month, unsupervised in the community. Social worker shall have discretion to change visits, as well as to increase duration and frequency and location when in the child's best interests. Furthermore, Social Worker will properly notify the client's attorney of any changes or issues regarding the visits."
The amended case plan was served on Mother by mail on January 9, 2017.
Notice of Appeal
On February 9, 2017, Mother filed a notice of appeal of the "12/15/16 order" that "[Daughter] and [Son] may visit with maternal family once a month unsupervised in the community."
DISCUSSION
I. MOTHER FORFEITED HER CHALLENGE TO GRANDPARENT VISITATION BY FAILING TO RAISE IT BELOW
Mother argues that grandparent visitation is not appropriate because there is no substantial evidence supporting it, and the grandparent's visitation rights were not clearly conveyed to the social worker pursuant to section 361.2, subdivision (i). The Agency raises a threshold issue: whether Mother forfeited the issues by failing to object below. We agree the challenges to grandparent visitation were forfeited.
"[A] parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.]" (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) Even Mother acknowledges that "[n]ormally, a reviewing court will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.]" However, she argues that she did not have an "opportunity for an objection" because "the maternal relative and grandparent visitation issue was not directly addressed by the court at the hearing." But grandparent visitation had been part of the written case plan since the beginning of the case. If Mother had an objection to it, it was her obligation to raise it below, regardless of whether the court verbally addressed it at any particular hearing.
Mother asks that we ignore her forfeiture because she has presented an important legal issue. We decline that request. She also asks that we remand the case for clarification even if we find forfeiture. If Mother found the visitation parameters ambiguous, she should have objected. We decline to remand the case for clarification.
In her reply brief, Mother claims that earlier in the case, the social worker allowed the maternal relatives "extensive" visitation with all three children when there was no court order on the matter. But the record citations apply only to grandparent visitation, not other maternal relatives. Any challenge to grandparent visitation has been forfeited by failing to raise it below.
Moreover, at the December 15, 2016, hearing the court ordered the case plan amended. Afterwards, the court asked, "Anything else?" No one responded, and the hearing was concluded shortly thereafter. Mother could have lodged objections to the case plan at this juncture but did not do so.
Mother forfeited her challenge to grandparent visitation. II. MATERNAL VISITATION APPLIED ONLY TO A.W.
Second, Mother contends that "there is not substantial evidence to support visitation with the maternal relatives for the younger two children" (i.e., Daughter and Son). But there is no indication that the court made such an order. The revised case plan submitted after the December 15, 2016, hearing has a section under visitation entitled "CHILDREN - OTHER" and lists the three children's names. While the heading lists all three children, the actual text of the entry spelling out the visitation says "[A.W.] may visit with her maternal family once a month...." Because maternal relative visitation applies only to A.W., and Mother only challenges the purported visitation as to Daughter and Son, we reject her claim.
We emphasize that the merits of the removal are not before us, and we express no opinion on that issue.
DISPOSITION
The orders from the December 15, 2016, hearing are affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.