Opinion
E071563
09-11-2019
In re M.J. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.J., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J277203, J277204) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Dismissed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court removed M.J. and F.W. (collectively Minors) from the custody of defendant and appellant, N.J. (Mother), issued family law orders giving sole custody of Minors to their respective fathers, and dismissed the dependency petitions. On appeal, Mother contends the juvenile court erred in not ordering postdependency sibling visitation pursuant to Welfare and Institutions Code section 16002. The appeal is dismissed.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2018, personnel from plaintiff and respondent, San Bernardino County Department of Children and Family Services (CFS), received a referral from a reporting party alleging general neglect of M.J. by Mother. The reporting party indicated they had done a reinspection of Mother's property on May 14, 2018; Mother's primary residence was undergoing a major rehabilitation and unable to be occupied; it was "'gutted'" with exposed wiring, no flooring, no drywall, and no cooling or heating. Mother was living in a large shed with M.J. The reporting party had posted a notice that it was unsafe to occupy the shed. Mother was in the process of getting a permit for the shed, but not as a livable structure.
Inferentially, the reporting party was a code enforcement officer. "They" likely refers to the city's code enforcement office.
On May 23, 2018, the social worker unsuccessfully attempted to contact Mother at the home. The social worker left business cards in the mailbox. Mother refused to meet with the social worker despite several attempts to schedule an appointment to discuss the allegations.
On July 12, 2018, CFS personnel received a second referral alleging general neglect. Mother continued to live in the shed, which had no septic, electricity, or water service. On July 18, 2018, the social worker contacted Mother. Mother "adamantly" insisted that she was never informed that the converted shed structure in which she lived with M.J. had been determined to be unsafe at any time. On July 23, 2018, the social worker spoke with a code enforcement officer who said Mother had been informed the structure was unsafe and a fire hazard. The officer provided the social worker with a photograph taken in May 2018 of a notice placed on the shed door reading: "'Do Not Enter, Unsafe to Occupy.'"
The social worker was unable to set up a safety plan for Minors as Mother was inconsistent, reporting she would comply and then changing her mind. Mother had a criminal history which included possession of controlled substances, being under the influence of controlled substances, possession of drug paraphernalia, and assault, all occurring in 2003. It had been reported that Mother had a history of drug use, including methamphetamine and prescription drugs. F.W. said she had been to Mother's residence once to help her move boxes to the shed. F.W. could not recall another time visiting Mother as she rarely saw Mother. On July 27, 2018, the social worker went to Mother's home to serve the detention warrant. Mother continued to reside in the home. The social worker noticed the red tag notice was folded over and taped back on the door.
On July 31, 2018, CFS personnel filed juvenile dependency petitions alleging Mother had untreated and/or undiagnosed mental health issues (b-1); was residing in a shed which had been deemed uninhabitable by code enforcement (b-2); used substances including opiates, methamphetamine, and marijuana (b-3); and that M.J.'s father had failed to protect Minor from possible harm (b-4). At the detention hearing, the juvenile court detained Minors and ordered that they be placed with their fathers.
Minors' counsel noted: "The children are quite bonded with each other." Counsel requested: "If they are going to be in separate homes, I would ask for a one-time-a-week visitation order for siblings." The court indicated "an assumption they were visiting . . . ." F.W.'s father's counsel responded: "They are. The fathers get along very well. The kids had a sibling visit last night. If the Court makes the minimum, I'm sure they will be seeing each other more frequently." The court ordered sibling visitation as appropriate.
In the jurisdictional and dispositional report, the social worker recommended the allegations in the petitions be found true, custody of Minors be awarded to their fathers, and the dependency petitions be dismissed. The social worker reported that Mother had said she was hospitalized at a psychiatric facility more than 16 years ago due to being under the influence of methamphetamines, but denied any current mental illness. Mother said the renovation project of her home was supposed to take six months but had now taken over two years and cost $250,000. Mother said she initially moved into an apartment, but that it was too expensive, and she was evicted. She began staying in hotels, which also became expensive. Therefore, she invested $60,000 in what she called a "modular home" and had licensed contractors working on it to ensure it met code requirements.
Mother said she last used methamphetamine five years earlier. Mother's test on August 1, 2018, was positive for amphetamines and opiates. Mother said she was not on any medications. Mother said she did not know how she tested positive and accused the social worker of tampering with it. Mother tested negative for all substances on August 10, 2018. Mother failed to show for an on-demand test on August 16, 2018.
M.J.'s father said the allegation that he failed to protect M.J. was true. He reported he exercised poor judgment in taking Mother's word over the red tag that he saw. On August 30, 2018, the court set the jurisdictional hearing as contested pursuant to Mother's request.
On the date set for the contested jurisdictional hearing, Mother sought a continuance in order to obtain a letter from her doctor regarding which medications she had been prescribed. The court denied the request.
Mother testified that initially she had been living in various hotels. Mother admitted she did live in the modular home with M.J. even though it was not permitted. They moved into it in late December 2017 or early January 2018. They lived in it for a few months. Mother unsuccessfully attempted to obtain a temporary use permit for the modular home. Nonetheless, she believed it was safe for her son. Mother had been taking the following prescribed medications for several years: Desoxyn, Oxycodone, and Synthroid.
F.W.'s father's counsel noted: "[W]e are in agreement with dismissal [as] to my client with the family law order. We're also in agreement with the sole legal and sole physical [custody] to the father. [¶] I'm sure Mom's attorney has advised her. She can always seek modification through family law court. So this is not the end all and be all. So I hope that Mom sees that, you know, and takes advantage of that." M.J.'s father's counsel observed: "[W]e would be asking the Court for sole legal custody as well. [¶] Again, Mother, given a change in circumstances, can petition a family law court to change that and can do services on her own and go to family law court if she were to seek additional custody
The juvenile court modified the b-1 allegation to strike "untreated and/or undiagnosed mental health issues" and replaced that language with "engaged in erratic behavior." As amended, the court found the allegations in the petitions true. The court removed custody of Minors from Mother, issued family law orders awarding sole legal custody of Minors to their fathers, and dismissed the dependency petitions.
II. DISCUSSION
Mother contends the juvenile court erred in not ordering postdependency sibling visitation pursuant to section 16002. CFS responds that Mother forfeited any contention the court erred in not issuing a visitation order because Mother never requested any such order. Moreover, CFS maintains that since the lack of a visitation order does not affect Mother, she had no standing to raise the issue and the appeal must be dismissed. We agree with CFS.
A parent forfeits an argument on appeal that the juvenile court erred in declining to order sibling visitation pursuant to section 16002 when the parent fails to interpose an objection in the juvenile court. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642; accord, In re Valerie A. (2007) 152 Cal.App.4th 987, 1001 [applying an exception to forfeiture rule where the court found an objection would have been futile].) Here, Mother never requested the juvenile court to issue an order respecting sibling visitation. Thus, Mother forfeited the issue on appeal. Mother's remedy at this point is, as both fathers pointed out below, to seek any such order in family law court.
Indeed, section 16002 presupposes the court's continued jurisdiction over at least one of the minors who would be subject to the visitation order. (§ 16002, subd. (a)(2) ["[W]hen a child has been removed from his or her home and he or she has a sibling or siblings who remain in the custody of a mutual parent subject to the court's jurisdiction, the court has the authority to develop a visitation plan for the siblings . . . ." (Italics added)]; § 16002, subd. (b) ["When placement of siblings together in the same home is not possible, a diligent effort shall be made, and a case plan prepared, to provide for ongoing and frequent interaction among siblings until family reunification is achieved, or, if parental rights are terminated, as part of developing the permanent plan for the child." (Italics added)].) A juvenile court acts in excess of its jurisdiction in ordering sibling visitation pursuant to section 16002 when the court lacks jurisdiction over the minors because it has dismissed the dependency petition. (In re A.R. (2012) 203 Cal.App.4th 1160, 1171-1172 [sibling visitation order reversed]; accord, In re Luke H. (2013) 221 Cal.App.4th 1082, 1088-1090.)
Here, the court dismissed the dependency petitions. Thus, the court no longer had jurisdiction over either minor or any of the parents. Defendant's citations to In re Cliffton B. (2000) 81 Cal.App.4th 415 and In re Valerie A., supra, 152 Cal.App.4th 987 are unavailing as both cases concerned juvenile courts which had taken jurisdiction over their respective minors where the dependency proceedings remained open. Here, nothing was left for the juvenile court to preside over. Thus, it would have been error for the court to have issued such an order. Regardless, Mother has no standing to challenge the court's disinclination to enter a sibling visitation order because she is not aggrieved by it.
"'"In juvenile dependency proceedings, as in civil actions generally [citation], only a party aggrieved by the judgment has standing to appeal. [Citations.]"' [Citations.] 'To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision. [Citation.] The injury must be immediate and substantial, and not nominal or remote.' [Citation.] 'An appellant must show prejudicial error affecting his or her interest in order to prevail on appeal. [Citation.] An appellant cannot urge errors which affect only another party who does not appeal.' [Citation]" (In re D.M. (2012) 205 Cal.App.4th 283, 293-294; In re K.C. (2011) 52 Cal.4th 231, 236 [affirming dismissal of appeal because the father lacked standing to appeal order denying paternal grandparents' request for placement of minor]; In re Valerie A., supra, 152 Cal.App.4th at p. 1000.)
"'A "lack of standing" is a jurisdictional defect.' [Citation.] When an appellant lacks standing, the appeal is subject to dismissal. [Citation.]" (In re D.M. (2012) 205 Cal.App.4th 283, 294.) "Case law consistently holds that a parent lacks standing to raise the issue of sibling visitation, reasoning that the minor's interest in maintaining a relationship with siblings is unrelated to the parents' interest in reunification. [Citations.]" (In re Daniel H. (2002) 99 Cal.App.4th 804, 809-810 [parent lacked standing to assert lack of sibling visitation order].)
Because Mother does not have a legally cognizable interest in sibling visitation at this juncture, she is not an aggrieved party and has no standing to challenge the nonissuance of a sibling visitation order. Thus, the appeal must be and is dismissed.
III. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.