Opinion
E066283
03-17-2017
In re A.C., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. D.W., Defendant and Appellant.
Johanna R. Shargel for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIJ1400721) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Johanna R. Shargel for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant D.W. is the father (Father) of A.C., who was eight years old when the juvenile court made its challenged rulings. Father argues the juvenile court erred when it (1) terminated his parental rights at the Welfare and Institutions Code section 366.26 hearing, and (2) denied his petition to modify a court order under section 388. Specifically, Father argues the Department of Public Social Services (DPSS) violated his constitutional and statutory rights to due process when it failed to notify him of the dependency proceedings for the first 11 months. Mother initially identified another man as A.C.'s father. It was not until A.C. and his siblings' initial placement with a relative was disrupted that mother briefly re-engaged with her family and identified Father as A.C.'s father. Father then took part in the dependency proceedings, after the section 366.26 hearing had been set, but nearly a year before it was actually held. Because Father did not raise the lack of notice of the earlier proceedings in the trial court, we conclude that he forfeited this argument on appeal. Further, the juvenile court did not abuse its discretion when it denied the section 388 petition because it determined that A.C.'s best interest was to have the court select adoption by his maternal grandmother (MGM) as A.C.'s permanent plan rather than grant Father reunification services.
Section references are to the Welfare and Institution Code except where otherwise indicated.
FACTS AND PROCEDURE
1. Detention, Initial Identification/Misidentification of A.C.'s Father and Placement with Maternal Uncle—July 2014-April 2015
On July 3, 2014, six-year-old A.C. and his younger brothers were detained after A.C.'s mother (Mother) was badly beaten by her boyfriend.
Only A.C. is the subject of this appeal. No father is listed on A.C.'s birth certificate. In the detention report, the social worker stated: "On July 3, 2014, the mother reported that [Father] was the biological father of [A.C.] Jr.; however, the mother has also named [A.C., Sr.] as the father of the child." MGM and the maternal uncle reported that A.C., Sr. had been tested for paternity, but had been ruled out. Mother stated she did not have contact information for either man, just their names, and that none of her children's fathers had a relationship with them, except for her current boyfriend with the youngest child. The social worker conducted both an inmate locater and a "CWS-CMS" search for Father, but found no matches. The social worker stated in the detention report that she would submit a parent locator for Father. The record does not contain any indication that the social worker submitted a parent locator for Father.
On July 8, 2014, the social worker asked A.C. if he knew anything about his father. A.C. stated he did not know who his father was.
Beginning with the section 300 juvenile dependency petition and the detention report, both filed July 8, 2014, DPSS identified A.C., Sr., not Father, as A.C.'s alleged father.
At the detention hearing held on July 9, 2014, the children were detained. Neither Mother nor Father were present. Mother and her boyfriend had absconded with their youngest child. On July 8, A.C. and three younger brothers were placed with the maternal uncle, with whom Mother and the children had previously stayed, where they remained until the following April.
The jurisdiction and disposition hearing was held on September 12, 2014. Again no parent was present. The court found true the allegations in the first amended petition filed under section 300. The allegations included, under subdivision (b), failure to protect, in that Mother and the father of the youngest child participated in severe acts of domestic violence in front of the children; Mother failed to benefit from preplacement services; the fathers of the four oldest children were not supporting them; and under subdivision (g), no provision for support, in that the whereabouts of Mother and four of the five fathers (one was incarcerated) were unknown and none was supporting his or her child(ren). The petition listed A.C., Sr. as A.C.'s father. Father was not named in the petition. The court denied reunification services to Mother under section 361.5, subdivision (b)(1) (whereabouts unknown), and to A.C., Sr. under section 361.5, subdivisions (a) (no benefit to the child) and (b)(1).
The six-month review hearing was held on March 12, 2015. Neither Mother, A.C., Sr., nor Father were present. The court set a section 366.26 hearing for June 10, 2015, to determine a permanent plan for the children.
2. Father First Identified, Changes in Placement, Final Placement with MGM - April 2015 to June 2016
On April 29, 2015, the juvenile court conducted a special hearing. Seven-year-old A.C. had begun acting out sexually against his siblings amid allegations that he had been molested by the maternal uncle's friend. In addition, the maternal uncle was using physical punishment with the children and transporting them without car seats or seat belts. The children were removed from the uncle's care on April 27 and placed together in a foster home. After the change in placement, A.C.'s behavior deteriorated significantly, and the two youngest siblings had to be moved to another foster home. As requested by DPSS, the court authorized A.C. to be temporarily placed in a group home pending investigation and treatment. The court also ordered psychological, physical, and medication evaluations for A.C. At a further hearing on May 4, 2015, DPSS reported that A.C. had stabilized, and the court authorized continuation in the group home, with the expectation that he would be moved to a less restrictive environment as he progressed.
On May 28, 2015, the social worker filed a section 366.26 report containing the following information: DPSS "recently received a message from an individual (name is unknown) alleging that they are the father of [A.C.]. On May 12, 2015, [DPSS] returned the call and a message was left." A.C. had been suspended from school for assaulting staff and had exhibited similar behavior in the group home. At school, A.C. damaged school property and police had to be called because A.C. was "uncontrollable." A.C. later returned to school.
At the section 366.26 hearing scheduled for June 10, 2015, the juvenile court continued the matter to June 16, in part because Mother had been located and ordered to appear on that date. Numerous family members were present, including MGM and the paternal grandmother.
On June 16, 2015, Mother filed with the juvenile court a paternity inquiry/mother's questionnaire. She named Father as A.C.'s biological father, but provided no information as to Father's address, contact information, birthdate, or relatives. Mother checked the boxes indicating A.C. had never lived with father or been to his home, but stated she had told Father that A.C. was his child. She indicated Father had not supported the child or done anything to claim A.C. as his own.
Also on June 16, 2015, the social worker filed an addendum report. MGM was having unsupervised visits with the children. On June 15, Father contacted DPSS and stated he was A.C.'s father and that Mother had kept A.C. from him. Father "reported that he speaks to the maternal family, he wants to do what he needs to do to get his child out of the situation he is in and he requested a DNA test." Father lived in Arizona.
At the continued section 366.26 hearing on June 16, 2015, the juvenile court appointed counsel for Father and authorized DNA testing. Father was not present in court. Mother was present. The hearing was again continued to December 16 because counsel was appointed for Father and for Mother, and to allow DPSS to assess MGM's home for placement.
The social worker filed an addendum report on July 1, 2015. MGM's two-bedroom home was certified after she received an exemption for her criminal history, which included current placement on probation and participation in a work release program. The social worker arranged with Father and with A.C.'s caretakers to conduct a DNA test.
The DNA test indicated Father was A.C.'s biological father. Father told the social worker that he wanted to have regular contact with A.C. The two had a supervised visit on July 15, 2015, while Father was in California visiting family. A.C. remained placed in a group home. The plan was to place all of the children with MGM, including A.C., once wraparound services could be implemented in the home to deal with A.C.'s behavioral issues.
3. Father's Efforts Toward A.C.—July 2015-March 2016
Father was present with his appointed counsel at a special hearing held on July 21, 2015. Mother was not present. Father's counsel represented to the court the following information and asked for weekly visits: Both Father and the paternal great aunt have a relationship with the child and would like to continue that with visits. Father objected to placing A.C. in MGM's home because "[t]here's a great history in the maternal grandmother not being able to care for [A.C.]. In fact, [A.C.]'s behaviors were so bad that she would drop the child off at Father's home because of it. He was planning on enrolling him into kindergarten at the age of five when the grandmother then took him back and then apparently turned him over to the mother." The court found Father to be the biological father and ordered supervised visitation twice a week.
Also on July 21, 2015, Father filed a form JV-505 statement regarding parentage, containing much of the information that his counsel provided to the court at the special hearing. In addition, Father stated he had told his mother, siblings, great aunt and friends that A.C. was his child. Father stated, "the mother would tell me off and on that I was not the father when I couldn't provide her money. Mother would leave the child with me for weeks to months due to not wanting to care for him. I would like to have my child placed with me or family." Father stated he would sometimes provide money for A.C.'s care when A.C. lived with Mother or MGM, and that he provided food, clothes and childcare during the periods A.C. lived with him. Father stated he provided a stable living environment for A.C. during the times A.C. lived with him and stated, "I attempted to place him in kindergarten when the maternal grandmother came and took him back to her house." In two places on the form, Father identified "2002 to 2006" as the time period during when he provided the above described care to A.C. A.C. was born in 2008. The record does not reveal an explanation for this error.
On November 23, 2015, DPSS filed a section 366.26 addendum report, and on November 30, 2015, filed a status review report. DPSS asked for the section 366.26 hearing to be continued for another 120 days so it could perform a preliminary adoption assessment for MGM. The children had been placed with MGM on July 27, 2015, and by October she had decided she would like to adopt all four children, including A.C. Mother had disappeared again and had called MGM and spoken briefly with the children only three times since the children were placed with MGM. Mother was reportedly living as a transient in the Los Angeles area.
Father lived in Arizona with his girlfriend and their child, and was employed. Father told the social worker he wanted custody of A.C., but could not visit often because of the distance. Father had visited A.C. three times since July, arranging a visit each time he came to California. Father actively engaged with A.C. during the visits, and A.C. got excited about the visits and enjoyed them. A.C. stated he would like to have more visits with Father. Father expressed the intention to maintain contact with A.C. each time he comes to California. Father told the social worker that he did not have contact with A.C. for several years because he was not sure if he was the father. Father had several outstanding misdemeanor warrants in California.
A.C. was responding well to psychotropic medications and wraparound services, and doing well in school. His behavior at home had normalized, and he was having fewer angry outbursts. The children stated they were happy in MGM's home and wanted to live there forever. A.C. expressed similar feelings "when he is doing well," but would "express a desire to leave when he is in trouble or can't get his way." DPSS recommended A.C. remain with MGM and his siblings because he was bonded with them, and he had made significant improvements in his behavior since being placed with the MGM. DPSS recommended it would not be in A.C.'s best interest to place him with Father because that would require him to be separated from MGM and his siblings, and because he did not know Father very well. DPSS recommended adoption by MGM.
The continued section 366.26 hearing held on December 16, 2015, was continued 120 days to April 14, 2016, to allow for the preliminary adoption assessment to be completed.
In the addendum report filed March 25, 2016, for the section 366.26 hearing, DPSS recommended terminating both Mother and Father's parental rights to A.C. A.C. continued to do well in MGM's home, with "few outbursts" during the reporting period. Father had not visited with A.C. in several months. Father had come to the DPSS office on February 29, 2016, and on March 3, 2016, spoke with the social worker. Father stated he wanted to set up visits with A.C., and had contacted his attorney about filing a form JV-180 in order to reunify with A.C. Father still lived in Arizona, but stated he was taking off several weeks from work to address his relationship with A.C. The social worker scheduled visits with A.C. for March 4, 10, and 11. The visit on March 4 apparently took place, but father cancelled the other two visits because he had returned to Arizona. A.C. told the social worker that he enjoyed visiting with Father, but did not want to live with him. A.C. wanted to be adopted by his "nana" and to have her last name.
4. Section 366.26 Hearing and Section 388 Petition—the Orders Appealed from
The preliminary adoption assessment was attached to the addendum report. MGM lived with the children in a two-bedroom apartment. DPSS granted MGM an exemption for a largely misdemeanor criminal history, including most recently a conviction for second degree burglary for using false identification and a false check to purchase groceries on December 24, 2009. The grandmother also had several unfounded child welfare referrals over the years, as well as a substantiated physical abuse referral from 1998 because she spanked two of her own children with a belt or extension cord after they stole candy from a neighbor. The grandmother stated she was not interested in a "post-adoption agreement" with any of the children's parents. The adoption worker noted that A.C. did not appear to understand the concept of adoption or the impact it would have on his life. A.C. stated he felt safe and happy living with MGM, but that he also enjoyed living with his aunt.
At the section 366.26 hearing on April 14, 2016, Father filed a section 388 petition asking the juvenile court to change its order of September 12, 2014, denying reunification services to A.C.'s father. Father asked to have the section 366.26 hearing vacated and to be provided with reunification services. The changed circumstances were that Father discovered in June 2015 that A.C. was in foster care; in July 2015, he confirmed with a DNA test that he was A.C.'s father; he first appeared in court on July 21, 2015; he visited with A.C. when he was in California; he participated in phone calls with A.C.; and he had stable housing and employment, placing him in a position to care for A.C. full time. The requested action would be in A.C.'s best interest because A.C. knew who his father was and had contact with him before the dependency, Mother did not provide her whereabouts to Father so he could keep in touch more, and A.C. deserved to know and be with his father.
Father was not named in that court order, as Mother at that time had identified another man, A.C. Sr., as A.C.'s father.
Father was not present at the hearing held on April 14, 2016. The court reduced visitation to all parents to once a month. Because the father of one of A.C.'s siblings had recently been named, the court rescheduled the section 366.26 hearing to May 17, 2016. Father's counsel agreed to have the court hear Father's section 388 petition on that date also. The hearing was continued again to June 8, and then to June 14, 2016.
In its final report filed June 3, 2016, DPSS recommended the court select adoption of A.C. and his siblings as their permanent plan. Father had two visits with A.C. in March 2016 and had not contacted DPSS since March 18. The last report sent to Father for the hearing on April 14, 2016, was returned as not retrieved by Father, although it was sent to the updated address Father provided when he was last in contact in February and March 2016, and the same address was listed on the section 388 petition.
The juvenile court held the section 366.26 hearing on June 14 and 17, 2016. Father was not present on June 14, but was present on June 17. Regarding the section 388 petition on June 14, Father's counsel stated Father was unable to be present because he had just had knee surgery in Arizona. Through counsel, Father requested presumed father status and that A.C. be placed with him on family maintenance. DPSS argued Father had failed to request presumed status until now, that A.C. was finally in a stable placement, and that A.C.'s behavior had stabilized remarkably since being placed with his siblings in his grandmother's home. Children's counsel noted that while A.C. enjoys visiting with Father and knows who he is, A.C. is very bonded to his siblings and MGM, and it would not be in A.C.'s best interest to remove him from that stable environment. The court denied Father's section 388 petition based on A.C.'s best interest.
Father was present in court on June 17, 2016, and testified as part of the section 366.26 proceedings. Father formerly lived in California and moved to Arizona in 2014. He testified that he did not know about A.C.'s birth until Mother informed him when A.C. was two and one-half years old. At that time, Father acknowledged A.C. as his son without asking for proof. Mother started leaving A.C. with Father when A.C. was two and one-half or three years old. Father described the arrangement as "back and forth. She kept taking him from me," and stated Mother was living with MGM during this time. Father testified that he first heard A.C. was in foster care in 2015. At that point, Father had been looking for A.C. for two or three years because he did not know where Mother was. Father stated he was in telephone contact with MGM, but that he was not allowed to talk to A.C. on the telephone without a social worker present. Father testified he had visited with A.C. six times in the past year, the last time in April. He had not visited more recently because he lived in Arizona and also had another son to take care of, and was "trying to make things fair." Father asked for joint custody with MGM. He acknowledged the need to keep A.C. with his siblings, but wanted to continue the bond with his son, and was willing to take custody. Father asked for legal guardianship as A.C.'s permanent plan. At the conclusion of the hearing, the court severed the parental rights of all parents and set adoption as the permanent plan for A.C. and his siblings.
This appeal followed.
DISCUSSION
1. Father's Challenge to the Termination Order
Father contends the juvenile court erred when it terminated his parental rights because DPSS violated his due process rights by failing to notify him, at all, of the jurisdiction and disposition hearing at which it denied him reunification services, and the six-month status review hearing at which the court decided to set a section 366.26 hearing. In his responsive brief, Father clarifies that his challenge is to the termination order and denial of his section 388 petition at the June 2016 hearings based on Father's "inability to access reunification services and visitation during the bulk of these proceedings."
DPSS did not in fact notify Father of the jurisdiction and disposition hearing, held on September 12, 2015, at which the court denied reunification services to the fathers of A.C. and his siblings. Neither did the court notify Father of the six-month review hearing, held on March 12, 2016, at which the court decided to set a section 366.26 hearing. It appears from the record that Father first left a telephone message with the social worker in May 2015, and that Mother formally identified him as A.C.'s father in June 2015. On June 16, 2015, the court appointed an attorney for Father and, beginning with the special hearing on July 21, 2016, Father participated in the remainder of the dependency case, sometimes in person and sometimes solely through his attorney.
To the extent Father challenges the lack of notice through the six-month review hearing, the problem is that he never challenged the lack of notice in the trial court. As DPSS argues in this appeal, neither Father nor his attorney asserted that Father was not provided with notice at any prior hearing, despite participating in nearly a year of hearings from July 2015 to June 2016. This deprived the juvenile court of the opportunity to correct any mistake.
" '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. [Citations.] Forfeiture, also referred to as "waiver," applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. [Citations.]' " (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686.) "[A] party waives all jurisdictional objections to a proceeding, including lack of notice, by opposing or resisting the proceeding on its merits. [Citations.]" (In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200.) Even a lack of notice that would otherwise be a due process violation can be forfeited by failure to raise it below, as long there has been an opportunity to do so. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1491.) Here, Father was appointed counsel in June 2015 and began appearing in court in July 2015, and the juvenile court did not terminate his parental rights until June 2016, and thus Father did have sufficient opportunity to avoid forfeiture by challenging the lack of notice.
The waiver rule need not be applied when it would be "fundamentally unfair." (In re A.C. (2008) 166 Cal.App.4th 146, 156.) However, that is hardly the case here. To repeat, soon after DPSS came into contact with Father, the court appointed counsel for him. In addition to challenging the lack of notice, his counsel could have filed the section 388 petition seeking to obtain reunification services for him at that time, instead of waiting to do so until A.C. and his behaviors had stabilized after nine months in MGM's care. The "child's best interest" prong of the section 388 analysis may have tilted more in favor of Father at that point.
Further, to the extent Father argues reversal of the June 2016 orders is required because the lack of notice caused him to miss out on reunification services and visitation, Father did receive visitation with A.C. beginning in July 2015, a full 11 months before the challenged termination order. The court authorized supervised visits twice a week, but the record shows that Father visited with A.C. a maximum of only about six times. As for reunification services, we again note that Father did not request reunification services until he filed his section 388 petition in April 2016, a full 10 months after the court appointed counsel for him, and nine months after he began appearing in court and visiting with A.C.
Finally, Father relies heavily on In re DeJohn B. (2000) 84 Cal.App.4th 100, which we find distinguishable on its facts. In that case, the mother at the section 366.26 hearing filed a motion to set aside the findings at and subsequent to the six-month review hearing, at which the court terminated her reunification services and set the section 366.26 hearing. The mother based her motion on the lack of notice required by section 366.21, subdivision (b). The juvenile court denied the motion, but the appellate court reversed, holding that the mother had a due process right to be notified of the proceedings. Here, Father never filed such a motion and, as explained ante, did not otherwise challenge the lack of notice in the trial court. Had Father done so promptly upon becoming a part of this case, the juvenile court could have ruled in a timely manner, before A.C. had become stabilized and comfortable in his MGM's home.
We recognize DPSS could possibly have done more to find Father, or at least to give him equal status with the other father Mother identified, A.C., Sr. However, the time and place for Father to have raised that issue was in the trial court when he became part of A.C.'s dependency case. Failing to do so, Father forfeited his right to raise the issue on appeal.
2. Section 388 Petition for Modification
Father also argues the juvenile court abused its discretion when it denied his section 388 petition, which he filed on April 14, 2016, and the court denied on June 14, 2016. We conclude the juvenile court did not abuse its discretion when it determined the requested change was not in A.C.'s best interest.
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. [Citation.] Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 611-612.)
" 'The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion.' [Citation.]" (In re J.T. (2014) 228 Cal.App.4th 953, 965.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, original quotation marks corrected.) " 'The denial of a section 388 motion rarely merits reversal as an abuse of discretion.' [Citation.]" (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Here, DPSS does not argue, as it should not, that Father did not establish changed circumstances. The real issue is whether the requested change—that the court grant Father reunification services and vacate its order setting the section 366.26 hearing—was in A.C.'s best interest. We conclude that the evidence easily supports the juvenile court's exercise of discretion to deny the petition. This is because A.C. was badly in need of a stable home, which he found with the MGM, and any disruption or uncertainty in that placement was manifestly not in his best interest. After A.C. and his siblings were removed from the maternal uncle on April 27, 2015, and prior to being placed with MGM three months later, A.C.'s mental health and behavior deteriorated so much that, despite his young age, he was placed in a group home, separate from his siblings and required a psychological evaluation and psychotropic medication. A.C. was placed with his siblings in MGM's home on July 27, 2015. At MGM's home, A.C. received wraparound services to address his behaviors and improved steadily. His behavior stabilized, he had fewer angry outbursts, and he was doing well in school. By the time Father filed his petition, MGM had decided she wanted to adopt A.C. and his siblings, and A.C. for the most part agreed that he wanted MGM to adopt him and his siblings. In fact, A.C. told the social worker that he enjoyed visiting with Father, but did not want to live with him, and would rather be adopted by his "nana" and to have her last name. At the hearing on the petition, A.C.'s counsel opposed the petition because A.C. was very bonded to his siblings and the MGM. Given the extensive evidence that A.C. was in great need of the stability that would come from being adopted and staying permanently in his grandmother's home with his siblings, the trial court did not abuse its discretion when it denied Father's section 388 petition.
DISPOSITION
The challenged orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.