Opinion
C083555
09-06-2017
In re S.R., a Person Coming Under the Juvenile Court Law. PLACER COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. H.F., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 53001380)
H.F., mother of the minor, S.R., appeals from the juvenile court's visitation order. (Welf. & Inst. Code, § 362.1.) She contends the court abused its discretion by delegating its authority over visitation to the minor. Concluding mother's claim is forfeited because she did not object to the visitation order in the juvenile court, we affirm.
Unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to the minor's birth, the minor's parents were involved in an ongoing dependency matter related to the minor's older sibling, L.F., which was initiated due to the parents' substance abuse problems.
In February 2004 mother tested positive for opiates and father tested positive for methamphetamine. On March 11, 2004, in conjunction with the ongoing dependency matter, the Placer County Department of Health and Human Services (the Department) filed a petition pursuant to section 300, subdivisions (b) and (j) alleging the minor, then five months old, was at substantial risk of suffering serious physical harm, illness, and neglect due to both parents' substance abuse problems that rendered them incapable of providing appropriate care for the minor.
Mother and father agreed to proceed without a jurisdiction/disposition report and were granted family maintenance services for the minor. L.F.'s case plan was successfully completed and her case was terminated on February 3, 2005. The minor's case plan was also successfully completed and her case was terminated on March 9, 2005.
In May 2005 the minor and L.F. were detained and placed with the maternal grandparents after both parents were arrested on substance abuse charges. The parents submitted to dependency jurisdiction and family reunification services were ordered. The minor and her sibling were thereafter returned to the parents' care in July 2006 and, after both parents successfully completed their family maintenance service plans, the dependency case was terminated in April 2007.
In September 2010 mother was arrested for a probation violation after attempting to sell drugs. The minor was left in the home with father who slept on the couch. Drugs were found within the minor's reach. Father agreed to file for custody and supervise any contact between the minor and mother.
In February 2014 mother was convicted of felony possession of a controlled substance and sentenced to 90 days in jail and three years of probation. That same month, father passed away from cancer. Thereafter, mother and the minor became homeless.
In April 2016 the minor reported several instances of physical and emotional abuse by mother, including mother grabbing the minor's hair, pushing her head into the console in the car and yelling at her, pulling the minor's hair causing the minor to hit her face on a mirror resulting in a black eye, and mother threatening to "beat [the minor] up and call CPS," which frightened the minor. The minor also reported she was afraid to go home due to physical abuse by mother.
On June 14, 2016, mother was staying with a friend, "Cowboy Steve," at Thunder Valley Hotel. The minor had reportedly stayed with her maternal grandmother, B.F., and her maternal aunt, T.E., and was afraid to return to mother because mother was homeless and stayed with unknown men. An incident occurred while the minor helped mother move out of a storage unit. Mother became angry and pushed the minor down and slapped her, causing the minor to sustain a bloody nose. When mother returned the minor to the maternal grandmother's home, the minor's eyes were dark and swollen.
The following day, mother and the minor returned to the storage unit and mother pushed the minor down and threw a garbage can at her, hitting her face and upper body. The police were summoned and spoke with mother but did not detain or arrest anyone. Mother returned the minor to the maternal grandmother's house but called to say she was returning to retrieve the minor, who would have to stay with mother. The minor was afraid mother would physically and verbally abuse her, and was also afraid of mother's friend, Cowboy Steve, who had reportedly touched the minor inappropriately on a prior occasion. The minor also reported that mother kept firearms in the storage unit though she was on felony probation, and that mother smokes marijuana even though her "marijuana card" is expired.
On June 16, 2016, the Department filed a new dependency petition pursuant to section 300, subdivision (a) alleging the minor, now 12 years old, had suffered, or was at substantial risk of suffering, serious physical harm due to the physical and verbal abuse inflicted by mother several days earlier.
At the detention hearing on June 20, 2016, the juvenile court ordered the minor detained, and ordered visitation between mother and the minor for "a minimum of one time per week arranged by and supervised by the Department; however, pending the next court date visitation shall not be forced."
On August 2, 2016, the dependency petition was amended to include a section 300, subdivision (c) allegation the minor had suffered, or was at risk of suffering, serious emotional damage as a result of the June 2016 incidents, and due to mother's threats to "beat" the minor, mother calling the minor a "bitch," and mother telling the minor she dressed like a "whore" and a "floozy." It was further alleged the minor had suicidal thoughts due to mother's treatment of her.
On August 3, 2016, at mother's request, the court set a contested jurisdiction/disposition hearing. The court ordered that all previous orders remain in effect. There was no mention of the visitation order by the court or any of the parties.
On August 24, 2016, the court heard and denied mother's Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) Again, no mention was made of the visitation order.
At the October 21, 2016 contested jurisdiction/disposition hearing, mother waived her right to receive reunification services pursuant to section 361.5, subdivision (b)(14). Mother's counsel requested that the court review videotaped evidence before making its ruling, and renewed mother's request for therapeutic visitation with the minor. After hearing argument from the parties, the court took the matter under submission to review the videotapes.
The juvenile court's November 15, 2016 order bypassed reunification services to mother based on her voluntary waiver and found placement of the minor with members of mother's family necessary and appropriate. The court did not make a new visitation order. On November 30, 2016, the court ordered that all previous orders remain in full force and effect. A subsequent amended order, filed December 14, 2016, made no new visitation order.
Mother filed a timely notice of appeal of the court's November 15, 2016 order.
DISCUSSION
Mother's sole contention on appeal is that the juvenile court erred in issuing its visitation order by impermissibly delegating its authority over visitation to the minor to determine the frequency and duration of visits with mother. The Department claims mother forfeited her claim by failing to object to and acquiescing in the visitation order in the juvenile court and, in any event, the visitation order was proper. We agree with the Department that mother forfeited her claim.
Background
At the detention hearing on June 20, 2016, the juvenile court ordered visitation between mother and the minor for "a minimum of one time per week arranged by and supervised by the Department; however, pending the next court date visitation shall not be forced." Neither mother nor her court-appointed counsel objected.
At the October 21, 2016 contested jurisdiction/disposition hearing, mother's counsel informed the court that mother would waive reunification services and "renew[] her request for therapeutic visitation with [the minor]." The court inquired, "Currently, there is an order for therapeutic visits but they haven't happened because [the minor] is refusing; is that correct?" In that regard, the court and counsel had the following discussion:
"[Minor's Counsel]: I think the therapeutic visits haven't happened because essentially [the minor], just through getting everything in place, has just begun her therapy. I believe once that's set in place that therapy goal to start therapeutics.
"The Court: Is it your position if the Court were to order reunification part of the reunification service would include [the minor] must participate in therapeutic visits?
"[Minor's Counsel]: No I think it should read that when minor's therapist beliefs [sic] she is ready to, she would participate.
"The Court: But you agree that [the minor] should not be given the sole keys to the door opening for the therapeutic visits.
"[Minor's Counsel]: Yes, but when the court sees the video's [sic] I think will have -- the Court will have a sense of the trauma that she's been through and -- and when she's ready. [¶] And my experience, specially [sic], with teenagers is they all get there at a different times, [sic] but at some time, I believe she will be ready to reestablish a connection or at least some closure with her mother. And that will -- I would like when that happens, the Department to be in communication with her therapist at that time too, so we know that."
The Department argued the minor's therapist "needs to really be able to be consulted and weigh in on whether or not [the minor], emotionally, is not so fragile. That she can withstand visits with her mother. [¶] So I think that the therapist really needs to be able to weigh in about whether or not visits will be detrimental to [the minor], and when she believes that [the minor] is strong enough, emotionally, to withstand therapeutic visits. Then, we can certainly get those set up and, you know, we hope to do so. [¶] But [the minor] has been through a lot. It's not just this one time incident. It's not just a one time thing that happened here, your Honor, it's -- it's a historical issue."
In response to the court's inquiry whether mother's waiver of reunification services would mean the Department would or could not provide therapeutic visitation, the Department stated, "No. [¶] . . . [¶] That is [] a separate issue. We would continue with the therapeutic visits when they are appropriate and when she's ready, through the unify service plan, we can have services in place through [the minor] that include therapy and family therapy. So it would actually include family and therapy just in [the minor's] plan and regardless of whether or not mother waives services." Mother's counsel reiterated that mother was declining reunification services "with [the] understanding that therapeutic visitation could be ordered through [the minor]."
The court's disposition order made no new visitation order, and its subsequent order stated all previous orders were to remain in full force and effect.
Forfeiture
Mother failed to object to the visitation order in the juvenile court. A party forfeits a claim that the juvenile court improperly delegated its visitation authority to a third party when he or she fails to object in the juvenile court. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 685-686; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222; In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642.) "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. [Citation.] [¶] Dependency matters are not exempt from this rule. [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 961-962.)
"[A]pplication of the forfeiture rule is not automatic. [Citations.]" (In re S.B., supra, 32 Cal.4th at p. 1293.) "But the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] Although an appellate court's discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters. '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.] Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. [Citation.]" (Ibid.)
Here, mother does not claim she objected to the visitation order. Rather, she claims she did not acquiesce in the perpetuation of the order and her counsel's comments at the dispositional hearing that mother "is declining services with [the] understanding that therapeutic visitation could be ordered through [the minor]" somehow preserved her claim on appeal. We are not persuaded.
Mother did not object to the visitation order when it was issued on June 20, 2016, nor did she object at any time thereafter. Her attorney's statement regarding possible therapeutic visitation did not suffice as an objection to the visitation order. Indeed, it may have actually served to clarify the court's previously issued verbal and written order that visitation would occur but not be forced on the minor in the event the minor's therapist determined visitation was not appropriate because the minor was not emotionally strong enough to participate.
In any event, mother failed to object in the juvenile court, and made no attempt here to demonstrate that the case presents an important legal issue such that we should exercise our discretion to excuse her forfeiture. (In re S.B., supra, 32 Cal.4th at p. 1293.) Because we conclude mother's failure to object to the visitation order in the juvenile court forfeits her claim on appeal, we need not reach the merits of her attack on the order.
DISPOSITION
The juvenile court's visitation order is affirmed.
RAYE, P. J. We concur: BLEASE, J. HULL, J.