Opinion
B329752
09-26-2023
In re SKY S., a Person Coming Under the Juvenile Court Law. v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; R.S., Petitioner, LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Los Angeles Dependency Lawyers, Inc.; Law Office of Emily Berger, Dominika Campbell and Loran Steven Lory for Petitioner. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Real Party in Interest. Children's Law Center of California - CLCLA1, Ann-Marissa Cook and Angelina Ongkeko for Minor.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) No. 19CCJP06275B Pete R. Navarro, Judge Pro Tempore. Petition denied.
Los Angeles Dependency Lawyers, Inc.; Law Office of Emily Berger, Dominika Campbell and Loran Steven Lory for Petitioner.
No appearance for Respondent.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Real Party in Interest.
Children's Law Center of California - CLCLA1, Ann-Marissa Cook and Angelina Ongkeko for Minor.
ASHMANN-GERST, J.
R.S. (Father) petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. Father seeks review of an order terminating family reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26.Father does not argue that the juvenile court's order, as it pertained to him, was in error. Rather, he asserts that the juvenile court improperly failed to determine whether his wife, the child's stepmother, was a presumed parent of the child. We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
The subject of this proceeding is Sky S., born in April 2016. This matter initially came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in September 2019, when it received a referral that Sky's mother (C.T., Mother) tested positive for methamphetamine upon the birth of Sky's half-sibling. Sky was ordered removed from Mother.
Father contacted DCFS shortly thereafter. He told the social worker that he had not seen Sky in over a year because Mother would not allow him. Father acknowledged that he had a criminal record, was on parole for robbery, and had been a user of methamphetamine. Father stated, however, that he had turned his life around and had not used methamphetamine in over a year. He was recently married to M.H. (Stepmother).
DCFS filed a section 300 petition on September 26, 2019, on behalf of Sky and her three half-siblings. The petition alleged that Mother was incapable of providing regular care and supervision due to her drug use. At the detention hearing, the juvenile court found Father to be Sky's presumed father, and ordered her detained from Mother and released to Father.
A subsequent jurisdiction/disposition report stated that on October 18, 2019, DCFS received a referral for general neglect of Sky. The caller was concerned because Father and his "girlfriend" used "a lot" of marijuana, and that the "girlfriend" had an open DCFS case. It was determined that there was an open DCFS case pertaining to Stepmother and her two youngest children, ages 10 and 12. At the jurisdiction/disposition hearing, Sky was released to Father on the condition he randomly test for drugs. He was also ordered to participate in individual counseling and family preservation services.
In September 2021, subsequent petitions were filed on behalf of Sky pursuant to sections 342 and 387. The first petition alleged that, while Sky was in Father's care, multiple bruises and scars were found on her head and body that appeared to be caused by nonaccidental trauma. Father's explanations of the manner in which Sky sustained the injuries were not consistent with the actual injuries. The second petition alleged that Father had failed to comply with the drug testing and individual counseling orders.
It was determined that Sky had recently been taken to the hospital twice for separate head injuries. At a hearing on September 21, 2021, at which Father was present, the court noted that Sky had stitches on the back of her head, had two black eyes, and had a scratch on her forehead. Sky was ordered detained from Father and was placed with her half-siblings, who were living with their maternal grandmother.
A subsequent report noted that, during a physical exam, Sky stated: "I think someone hurt me." (Bolding omitted.) The report noted that Father gave plausible explanations for most of Sky's injuries but, due to the number of injuries, there was concern for physical abuse. It was discovered that there were further prior hospital visits- in May 2021, due to a contusion and laceration on Sky's face, and in December 2020, for an arm fracture. During an October 2021 interview of Sky, she stated that she felt sad around Stepmother and wanted to continue living with her maternal grandmother.
In November 2021, DCFS reported that, in 2018, a section 300 petition was filed pertaining to Stepmother's children. Allegations included physical abuse by Stepmother and a history of substance abuse, including cocaine and opiates. Stepmother entered into a nocontest plea as to allegations in the petition that she medically neglected one of her children. Two of Stepmother's children were removed from her in the proceeding, and returned in 2019, with jurisdiction terminated in January 2020. Given that Stepmother had a history of dependency involvement, was a member of Father's household and provided care to Sky, and Sky had made comments that she was scared of Stepmother, DCFS recommended that Stepmother participate voluntarily in services, including drug and alcohol testing and parenting.
In late November 2021, the juvenile court conducted an adjudication and disposition hearing for the sections 342 and 387 petitions. The section 387 petition was sustained as pled, and the section 342 petition was sustained with amended allegations.
At the hearing, with Father present by telephone and represented by counsel, the juvenile court ordered that Father and Mother receive reunification services. The court additionally stated, "since we are in the business of trying to reunify families, I am going to order [Stepmother] into eight random or on-demand consecutive drug tests," with a drug rehabilitation program upon any missed or failed test, as well as parenting classes with low or no-cost referrals. The court found it in Sky's best interests for Stepmother "to comply with the case plan." Sky was ordered removed from Mother, as well as from Father and Stepmother. At the close of the hearing, Father's counsel objected to the order not to return Sky to Father's care, and generally objected to the dispositional orders.
In June 2022, DCFS reported that Father had not visited with Sky, or had contact with DCFS, since December 2021. Father began visiting again in July, but the visits were sporadic and Father often ended them early. Stepmother did not show for any of 15 random drug tests through June 2022. For the period of June through October 2022, Stepmother tested positive for marijuana on five occasions, and failed to show for three other tests. She did complete a parenting course, however, in November 2022. At the December 2022 review hearing, the juvenile court ordered continued reunification services for both Father and Mother. The court made no orders with regard to the programs previously offered to Stepmother.
In May 2023, DCFS reported that during an interview with Sky, she stated, "I don't feel safe around [Stepmother]." Sky said that Stepmother hit her with a belt and hit her on her feet "all the time in the house." In a follow-up interview, she stated: "[Stepmother] hits me a lot." She then parted her bangs to show a scar on her forehead and said, "[t]his right here she pushed me to the shower." The social worker asked whether Father ever hit her, and Sky responded that both Father and Stepmother "hit me for no reason." Father was interviewed separately, and denied that he or Stepmother hit or physically disciplined Sky. During visits with Father and Stepmother, one in March and one in April 2023, Sky commented that Stepmother hit her when she was in their care.
The 18-month review hearing was held on June 5, 2023. DCFS and minor's counsel requested that reunification services be terminated. Minor's counsel noted that Sky had related incidents of physical abuse and did not feel safe with Father or Stepmother. The juvenile court, reviewing how Mother was noncompliant with her case plan, that Father had also been noncompliant and inconsistent with visitation, and that Sky had reported being hit by Stepmother, terminated reunification services for the parents and set a section 366.26 permanency planning hearing.
Father timely filed a notice of intent to file a writ petition, and thereafter timely filed this petition for extraordinary writ. Both DCFS and minor's counsel filed briefs opposing the petition.
DISCUSSION
In this petition, Father does not contend that the juvenile court erred by terminating his reunification services or in generally setting a section 366.26 hearing. Instead, he claims that the court improperly failed to inquire and determine whether Stepmother was a presumed parent of Sky, and that Stepmother was deprived of proper notice to seek presumed parent status.
"'Under the dependency law scheme, only mothers and presumed parents have legal status as "parents," entitled to the rights afforded such persons in dependency proceedings, including standing, the appointment of counsel and reunification services. [Citations.] In an appropriate case, a man or a woman who is not a child's biological parent may be deemed his or her "presumed parent." [Citations.]'" (In re Bryan D. (2011) 199 Cal.App.4th 127, 138.)
Because we find that (i) Father lacks standing to raise this issue on behalf of Stepmother, (ii) even if the issue was appropriately raised, Father forfeited the claim, and (iii) regardless, Father fails to demonstrate reversible error, we deny Father's petition.
I. Lack of standing
Father first asserts that he has standing to raise the parentage issue on Stepmother's behalf because his interests "intertwine" with Stepmother's. He cites to the recent opinion In re J.R. (2022) 82 Cal.App.5th 569, in which the appellate court found that a mother, whose address and contact information were known, but who was not given proper notice by DCFS of dependency proceedings, was deprived of her due process right to proper notice. (Id. at pp. 572-573.) The father was found to have standing to raise the issue on appeal because the court determined that his interests were "intertwined" with the mother's. (Id. at pp. 581-582.) The court, agreeing with the father's contention that reversal of the order terminating the mother's parental rights would justify reversal of the termination of his parental rights, found that their interests were intertwined "[b]ecause the fate of mother's and father's respective parental rights . . . depends upon whether mother's due process claim is meritorious." (Id. at pp. 581582.) The court also concluded that not allowing the father to raise the issue would result in the notice violation going uncorrected. (Id. at p. 583.)
In contrast to the father in In re J.R., Father here does not demonstrate that his interests are sufficiently intertwined with Stepmother's to confer standing on the issue of whether the juvenile court should have determined whether Stepmother was a presumed parent. Only an aggrieved party has standing to challenge an order at the appellate level. (Code Civ. Proc., § 902 ["Any party aggrieved may appeal ...."]; In re K.C. (2011) 52 Cal.4th 231, 236; In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1562.) "An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision." (In re K.C., supra, at p. 236.) Father does not show he is sufficiently aggrieved.
In In re J.R., the father successfully argued that an order terminating both his own and the mother's parental rights should be reversed (In re J.R., supra, 82 Cal.App.5th at pp. 583-584), a decision from which he benefited (id. at pp. 585-586). Father here, however, does not seek relief that would inure to his benefit. Instead, Father requests that this court conditionally reverse the order setting the section 366.26 hearing so that the juvenile court can provide Stepmother with the opportunity to be declared a presumed parent and be provided reunification services.
"[A]n appellant must demonstrate error affecting his or her own interests in order to have standing to appeal." (In re Crystal J. (2001) 92 Cal.App.4th 186, 189.) Father does not identify how the alleged error-an insufficient parentage determination as to Stepmother- affects his interests. Nor does he seek relief, such as reversal of the order terminating his reunification services, pertaining to himself. Rather, he seeks relief only on behalf of Stepmother. Because this is not an issue of "'intertwined interests'" (In re J.R., supra, 82 Cal.App.5th at p. 581), Father lacks standing to raise it.
Additionally, even if Father potentially could raise the issue on appeal, he does not address how the issue is properly raised in this petition for extraordinary writ under California Rules of Court, rule 8.452, where our review is limited in scope. "All court orders, regardless of their nature, made at a hearing in which a section 366.26 permanency planning hearing is set must be challenged by a petition for extraordinary writ." (In re Merrick V. (2004) 122 Cal.App.4th 235, 247; see also Cal. Rules of Court, rule 8.450(a) ["Rules 8.450-8.452 and 8.490 govern writ petitions to review orders setting a hearing under Welfare and Institutions Code section 366.26"].)
Father's petition does not challenge an order made at the June 5, 2023 hearing. At the hearing, the juvenile court set a section 366.26 hearing and terminated the parents' (Mother's and Father's) reunification services. The court did not make any orders pertaining to Stepmother. Father, therefore, fails to demonstrate that the issue of Stepmother's parentage is cognizable on this petition from the order setting the section 366.26 hearing.
Although Father contends in his writ petition that "the juvenile court erred in terminating Stepmother's reunification services," the record does not support the assertion that reunification services for Stepmother were terminated or, indeed, that they were ordered in the first place. (Capitalization and bolding omitted.) While it is true that, in November 2021, the court ordered Stepmother to comply with a "case plan" consisting of drug testing and parenting classes, that plan was not the subject of an order made at the June 5, 2023 hearing.
II. Forfeiture
Father's challenge to the June 5, 2023 order, likewise fails because he (including his counsel) never objected to any asserted oversight on the part of the juvenile court to determine Stepmother's parentage or find whether she had been provided with reasonable services. He has therefore forfeited any such claim.
"[I]n dependency proceedings, where the well-being of the child and the stability of placement is of paramount importance," an appellate court's discretion to excuse forfeiture "'should be exercised rarely ....'" (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Accordingly, "when a parent had the opportunity to present [a defective notice] issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court." (Ibid.)
At the June 5, 2023 hearing, Father did not raise an objection relating to Stepmother. Nor does the record show that at any other point in the proceedings, including the numerous hearings at which Father was present, did he or his counsel object to any rulings as they pertained to Stepmother. Given the significant passage of time since this dependency matter was initiated, and the effect on Sky's right to stability, we decline to exercise our discretion to excuse this forfeiture.
III. No showing of reversible error
Even if we were to deem Father's argument cognizable, the relief requested in his petition would be unwarranted as Father does not demonstrate reversible error. Father contends that the juvenile court should have determined whether Stepmother was a presumed parent. He fails to demonstrate, however, that Stepmother would have been entitled to this status.
A "presumed parent receives the child into their home and openly holds out the child as their natural child." (Fam. Code, § 7611, subd. (d).) To be considered a presumed parent, the person "must have a 'fully developed parental relationship' with the child. [Citation.] A 'caretaking role and/or romantic involvement with a child's parent' is not enough to qualify. [Citation.] A presumed parent must demonstrate "'"a full commitment to [parental] responsibilities- emotional, financial, and otherwise."'" (In re M.Z. (2016) 5 Cal.App.5th 53, 63.)
At the time of the June 5, 2023 hearing, it could not be said that Stepmother had a fully developed parental relationship with Sky. Stepmother had only seen Sky on several occasions since Sky left Father's care in September 2021. Moreover, there were credible concerns, backed up by Sky's repeated statements, that, during the time Sky was under Father's care, she was physically abused by Stepmother. Father further fails to identify if or how Stepmother openly held out Sky as her natural child or demonstrated a full commitment to parental responsibilities.
We therefore conclude that, even if Father had standing to assert these claims on behalf of Stepmother and had not forfeited them, the claims would fail.
DISPOSITION
The petition for extraordinary writ is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
We concur: LUI, P. J. LUI, CHAVEZ, J.