Opinion
A160714
05-25-2021
In re E.P., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 6122DEP
J.P. (Father) appeals from the juvenile court's orders on jurisdiction and disposition. He contends the order granting the mother sole medical decision-making authority on behalf of their daughter fails to comply with Welfare and Institution Code section 361's specificity requirement and is unconstitutionally vague and ambiguous. Father also contends no substantial evidence supports the order or the jurisdictional findings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and S.U. (Mother) are the parents of E.P. (Minor), born in 2008. Minor has a rare genetic muscle disorder, nemaline myopathy, resulting in severe hypotonia (low muscle tone); she has a history of swallowing disorder, moderate scoliosis, and restrictive lung disease. Because of her severe medical conditions, Minor has required around-the-clock specialized care for several years. The parents, who do not live together, held joint physical and legal custody of Minor prior to this proceeding.
On December 29, 2019, Minor was hospitalized after having been ill for about a month. In the hospital, she developed respiratory failure and required ICU supervision and intubation and a ventilator to breathe. Doctors determined that Minor would require continued mechanical ventilation support either through an endotracheal tube or a tracheostomy, but long-term endotracheal intubation would likely permanently damage Minor's respiratory system and cause permanent muscle loss because she would be confined in bed. They concluded Minor needed a tracheostomy so she could participate in rehabilitation and eventually be discharged from the hospital. Minor's pulmonologist said Minor "can't go home without a trach."
Father, however, refused to consent to tracheostomy surgery for weeks and believed he could "save" Minor if he just positioned her on her side. He described himself as Minor's "savior" and maintained he could "fix her." He said the doctors were liars and there were signs Minor was being poisoned by the hospital. Father was also verbally aggressive with hospital staff, and he was banned from the hospital due to his erratic behavior.
On April 2, 2020, the Sonoma County Human Service Department filed a dependency petition alleging (1) Father failed to protect Minor (Welf. & Inst. Code, § 300, subd. (b)) in that he "failed to provide . . . critical medical treatment for the child" and (2) Father risked causing Minor serious emotional damage (id., subd. (c)) by texting Minor while she was in the hospital messages such as "[the hospital doctors] are wrong and will harm you" and "healing is in your head," causing Minor extreme emotional pain, stress, and anxiety.
Further undesignated statutory references are to the Welfare and Institutions Code.
It was further reported that Father texted Minor messages such as "You must trust your father. Your mother is the one who has caused you to be in this condition. The hospitals are the ones who caused you to be in this position. . . ." "They almost killed you. . . . They are wrong . . . . I could get you healthy in two days and we could be home," "the medical staff are bad people," and Minor was "not safe at the hospital." Hospital staff reported that Minor "shut down" after receiving such texts.
In a report filed April 3, 2020, the Department wrote it was "worried that if the father continues to refuse [Minor] the surgery she needs that she will ultimately die at the hospital due to not receiving a lifesaving surgery that would allow her to go home." The Department requested orders (1) placing Minor with Mother and (2) authorizing the hospital to conduct the needed surgery on April 7, 2020.
At an initial hearing on April 3, 2020, Father requested a one-day continuance and a contested hearing. Mother's attorney objected to a continuance arguing that the surgery had been needed for some time, that Minor was suffering pain from the endotracheal tube in her throat, and, "This is just torturing the child to drag it out any longer." She also requested a no-contact order "given the disturbing nature of some of the communication [Mother] received from father." The court continued the hearing to April 6 and ordered the parents not to contact each other before the next hearing.
At the continued hearing on April 6, 2020, the court noted it had received three letters written by Father, three letters of support for Father, and additional medical records, including a 43-page report, from the Department.
Minor's attorney submitted a statement from a nurse practitioner describing an interaction during which Father conditionally agreed to the surgery if the hospital would admit that they lied to him and let him back in the hospital. Minor's attorney argued this interaction showed Father's motivation for withholding consent was suspect as he "was willing to forgo [Minor] getting on the road to wellness for vindication." He noted that Minor had been "really excited" about the surgery and was "very, very disappointed and almost shocked" when it was previously cancelled at the last minute due to Father's actions.
In addition to asking the court to order the surgery and place Minor with Mother, county counsel requested "that the mother has sole decision-making authority over medical issues." The purpose of an order regarding medical decision-making was "facilitating the child's adequate treatment." The attorney explained, "there could be other decisions . . . coming up," and the Department did not want the hospital to be unable to treat Minor appropriately due to Father's unwillingness to consent. Mother's attorney also requested that the court "make it clear that the mother has the ability to make medical decision[s] so she could work with the hospital and be able to respond rapidly to any further health needs that would arise."
Father's attorney stated Father wanted to be part of the decision-making process. Father told the court, "I don't necessarily disagree with the trach" but "People [at the hospital] have been lying to me the whole time."
At the close of the hearing, the court authorized the tracheotomy surgery, placed Minor with Mother, gave Mother sole decision-making authority for Minor's medical treatment, and extended the no-contact order. The court stated that the order on medical decision-making was temporary and could be readdressed at the hearing on jurisdiction and disposition.
Minor had the tracheotomy surgery on April 8, 2020, and the Department reported (as of May 4) that she was "doing great in her recovery process despite little setbacks." Minor was participating in physical therapy, occupational therapy, and training for discharge.
At the hearing on jurisdiction held May 6, 2020, Father asked for contested hearing. The court extended the no-contact order and scheduled a contested hearing for July 13, 2020.
On July 10, 2020, the Department filed an amended petition that contained the same allegations as the original petition and added, "The Father's behavior and resistance to expert medical advice continues to place the child at continuing risk of physical harm."
In a jurisdiction report filed May 6, 2020, it was reported that the admitting doctor, Deborah Franzon, recommended intubation when Minor was admitted to the hospital in December 2019, but Father refused the procedure. Later, Father did not think Minor needed a tracheotomy, and Dr. Franzon opined, "I think that really factored into how sick [Minor] became." She stated that Father's delusional thinking obstructed care whenever he was at the hospital, as he harassed nurses, threatened to sue staff in front of Minor, used foul language, and threatened physical violence against a doctor. At a meeting of hospital staff including a doctor, a social worker, a nurse practitioner, and a child life specialist, all medical providers had strong reservations about Minor's safety in Father's care after hospital discharge because of his statements and actions regarding her respiratory care. Mother reported that Father had recently started denying Minor had nemaline myopathy and has "gone off the rail and has started to claim that she should be diagnosed with other diseases or disorders or conditions and wants to treat her according to what he thinks they are."
In an addendum report filed July 6, 2020, the social worker who prepared the report described receiving lengthy messages from Father that demonstrated his "unregulated and distorted thinking and aggressive communication." Father "remain[ed] hyper focused on being right, that he has single handedly saved his daughter's life and that everyone around him is wrong. Because of this, he misses the true medical concerns, conditions and ongoing daily medical needs that his daughter requires." The Department determined that Minor needed attentive caregivers who were "open to coaching and feedback around her ever-changing medical necessities," but Father refused to accept feedback and "is incapable of meeting his daughter's ongoing medical needs," such that Minor continued be at substantial risk of harm in Father's care. The Department recommended that Minor be placed with Mother and exit orders be adopted.
In a trial brief filed July 13, 2020, the Department recognized that Minor clearly loved Father and he loved her, but "Father's demonstrated pattern of unreasonable behavior toward [her] medical treatment has harmed her and continues to place her at risk of both physical and emotional harm." The Department asked for supervised visits and that Mother have sole medical decision-making authority.
Father filed a trial brief in which he contended the hospital was neglectful in caring for Minor and caused a decline in her breathing in January 2020. Father admitted that he texted Minor that she should "not trust the doctors." He argued that Minor was not a child described by section 300 and urged that family court was the proper venue for the parents' custody dispute.
At the outset of the hearing on jurisdiction and disposition on July 13, 2020, the trial court indicated it was hesitant "to basically cut [Father] out of her life." County counsel emphasized Minor's medical team had concerns about Father's current ability to care for Minor now that she had a tracheostomy and stated the Department would be willing to offer Father reunification services so he could go through training to "get up to speed on the tracheostomy procedures." Minor's attorney agreed it would be appropriate to provide Father reunification services. After Mother's attorney indicated she was not opposed to supervised services for Father and Father said he "would do anything that I was told to do when it comes to the tracheotomy," the court suggested that the parties could negotiate a settlement under which the court would find jurisdiction and Father would receive reunification services.
The court then took a recess of about 40 minutes to allow the parents to discuss the matter with their attorneys. After the break, the court stated, "So I think we have resolved this matter." Father signed a waiver of rights (Judicial Council Forms, form JV-190), submitting the petition on the basis of the social worker reports. The court sustained the petition, ordered Minor to reside with Mother, granted Father family reunification services, and specified that Father had to go through the Department to communicate with Mother.
The court further ordered, "For now medical decision making authority is going to remain with the mother. [¶] Father is to get all support needed for all of his trainings, including support from [Minor's] . . . current medical caregivers."
The court set a hearing for 30 days out on August 12, and a six-month hearing for January 6, 2021. Father asked, "Your honor, is the six-month a wrap up?" and the court responded, yes, "depending on how well you get the training down, and how well things go."
DISCUSSION
A. Order Granting Mother Sole Medical Decision-Making Authority
1. Statutory and Constitutional Challenges
Father contends the order granting Mother medical decision-making authority fails to comply with the specificity requirement of section 361, subdivision (a)(1), and is unconstitutionally vague and ambiguous. He also claims the order may violate section 369.5 if it covers administration of psychotropic medication. These contentions have been forfeited.
Father relies on the following language of the statute: "In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent, guardian, or Indian custodian and shall by its order clearly and specifically set forth all those limitations. . . . The limitations may not exceed those necessary to protect the child." (§ 361, subd. (a)(1), italics added.)
Section 369.5, subdivision (a)(1), provides in part, "If a child is adjudged a dependent child of the court under Section 300 and the child has been removed from the physical custody of the parent under Section 361, only a juvenile court judicial officer shall have authority to make orders regarding the administration of psychotropic medications for that child. The juvenile court may issue a specific order delegating this authority to a parent upon making findings on the record that the parent poses no danger to the child and has the capacity to authorize psychotropic medications."
" '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 . . . applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings.' [Citation.] A party may not assert theories on appeal which were not raised in the trial court." (In re C.M. (2017) 15 Cal.App.5th 376, 385.) "Considering an issue for the first time on appeal is often unfair to the trial court, unjust to the opposing party, and contrary to judicial economy because it encourages the embedding of reversible error through silence in the trial court." (In re M.H. (2016) 1 Cal.App.5th 699, 713-714.)
The forfeiture rule applies to claims of violation of statute or Rules of Court (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1343, 1345) and to constitutional challenges (In re M.H., supra, 1 Cal.App.5th at p. 713).
Forfeiture is not mandatory, but an "appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) We decline to consider Father's forfeited claims. The purpose of the rule " 'is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.' " (In re Sheena K. (2007) 40 Cal.4th 875, 881.) Had Father or his attorney objected to the order on the ground it lacked specificity, the court may have clarified the order to address any concerns Father may have raised. Instead, Father remained silent on the issue. Moreover, the court first granted Mother sole medical decision-making authority on April 6, 2020, but there is no indication Father was confused by, or unsure of the scope of, that order in the three months before the contested hearing of July 13, 2020. We see no reason to exercise our discretion to consider an alleged error that could have been addressed at the lower court level had Father raised the issue. Nor does anything in the record suggest that this asserted uncertainty about the scope of the order is anything other than mere speculation, not grounded in fact.
While the trial court did not expressly invite objections after ordering that medical decision-making authority would remain with Mother, Father and his attorney were free to ask for greater specificity or request any additional order at that time. Mother's attorney followed up by asking the court to order that communication between the parents would be through the social worker, and the court granted the request. Father, himself, subsequently asked the court if the hearing scheduled for January 6, 2021, was "a wrap up," which demonstrates he felt he could directly address the court when he had questions or wanted clarification.
Father argues we should consider his claims because any forfeiture was due to ineffective assistance of counsel. "In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] However, an ineffective assistance claim may be reviewed on direct appeal where 'there simply could be no satisfactory explanation' for trial counsel's action or inaction." (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) But Father does not claim there could be no satisfactory explanation for his attorney's failure to object or request clarification. Respondent makes a reasonable argument that the order was sufficiently certain and specific to the parties when considered in context. And, as we have mentioned, the order had been in place for over three months, yet neither Father nor his attorney mentioned to the court any situation in which the meaning of the order was ambiguous. On this record, it is conceivable Father's attorney did not object or request clarification because she reasonably believed the order granting Mother sole medical decision-making was sufficiently clear. We will not excuse forfeiture based on ineffective assistance of counsel.
2. Substantial Evidence Challenge
Father next argues the order should be reversed for lack of substantial evidence. Initially, the parties disagree on the standard of review. Respondent asserts the order regarding medical decision-making was made under the authority of section 362, and such orders are reviewed for abuse of discretion (In re Corrine W. (2009) 45 Cal.4th 522, 532). Father relies on cases that recognize orders removing a child from parental custody under section 361 are generally reviewed for substantial evidence, viewing the record in the light most favorable to the court's findings (e.g., In re Anthony Q. (2016) 5 Cal.App.5th 336, 344).
"If a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362, subd. (a).)
"The practical differences between the two standards of review are not significant. '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere " 'only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' " ' " (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Under either standard, we find no reversible error.
The evidence showed an admitting doctor opined that Father's decisions to withhold consent to intubation and later a tracheostomy may have worsened Minor's condition and that his delusional thinking obstructed care every time he was at the hospital. A nurse reported that Father would agree to surgery only if the hospital would admit that they lied to him and would allow him back in the hospital. As Minor's attorney advocated, this incident demonstrates Father is willing to risk Minor's health for vindication. A social worker observed that after Minor underwent surgery and had the tracheostomy, Father "remain[ed] hyper focused on being right . . . and that everyone around him [including every treating medical professional] is wrong. Because of this, he misses the true medical concerns, conditions and ongoing daily medical needs that his daughter requires." Father displayed "unregulated and distorted thinking and aggressive communication" when attempting to discuss Minor's medical situation, and the social worker found he was "unwilling to listen and take advice from the medical professionals who are trained specifically in managing [Minor's] medical care" and, further, Father's refusal to agree to the tracheostomy procedure had not been an isolated event. The record provides substantial evidence that it was not in Minor's best interest for Father to make medical decisions on her behalf and that the order effectively removing his medical decision-making authority was necessary to protect Minor. We also conclude on this record that the court acted within its discretion in granting Mother sole medical decision-making authority over Minor. B. Jurisdictional Findings and Jurisdiction
Father also contends that no substantial evidence supports the jurisdictional findings and jurisdiction. We agree with respondent, however, that Father's agreement to a negotiated settlement in this case constituted an implied waiver of his right to appeal the sufficiency of the evidence to support the jurisdictional findings.
In re N.M. (2011) 197 Cal.App.4th 159 (N.M.), cited by respondent, is instructive. There, a father was accused of physically abusing his daughter, and the agency recommended removing the child, declaring her a dependent of the court, and offering the father reunification services. Before the contested hearing on jurisdiction and disposition, the parties reached an agreement on jurisdiction (but not disposition) under which the agency agreed to delete certain allegations of abuse and the father agreed to deal with physical abuse issues in therapy. (Id. at pp. 163-165.) The father then "submitted the jurisdictional matter to the juvenile court on the amended petition." (Id. at pp. 164-165.)
On appeal, the father challenged the sufficiency of the evidence to support the jurisdictional finding that the child came within the provisions of section 300, subdivision (a). (N.M., supra, 197 Cal.App.4th at p. 165.) But the Court of Appeal concluded the settlement the parties reached to avoid trial precluded such a challenge. The court reasoned, "The negotiated settlement was essentially a contract; both Agency and [the father] were entitled to enforcement of the terms of their agreement. [The father], having received the benefits of the settlement, is precluded from attempting to better the settlement on appeal. By accepting the negotiated settlement—and its benefits—[the father] implicitly waived his right to challenge the true finding under section 300, subdivision (a)." (Id. at p. 167.)
The court continued: "In light of his agreement to the negotiated settlement, [the father]'s attempt to challenge the sufficiency of the evidence to support the jurisdictional finding for the first time on appeal seems like he is trying to have the best of both worlds. To allow [him] to appeal the jurisdictional finding under these circumstances is counterintuitive to legal principles of forfeiture and waiver, which are based on maxims of jurisprudence. 'He who consents to an act is not wronged by it.' (Civ. Code, § 3515; see also Civ. Code, § 3516 ['Acquiescence in error takes away the right of objecting to it'].) Under the particular circumstances of the case, [the father]'s agreement to the negotiated settlement constitutes an implied waiver of his right to appeal the sufficiency of the evidence to support the jurisdictional finding under section 300, subdivision (a). Any other result would undermine the stability promised by the Legislature to children in the dependency system." (N.M., supra, 197 Cal.App.4th at p. 168.)
Here, on the day scheduled for a contested jurisdiction and disposition hearing and after some discussion, the court observed, "mom and dad and perhaps their attorneys [seem to be] on the same page" with respect to Father receiving supervised training on caring for Minor's tracheostomy. The court then offered, "I would be prepared to work on the language to find that [Minor] falls within Section 300 of the Welfare & Institutions Code, offer mother family maintenance, father family reunification." The court emphasized it was not making a decision. Rather, it was suggesting that if the parties could reach an agreement on a disposition (with "very specific orders" including "family reunification to father"), then the court would find jurisdiction and enter the agreed-upon orders.
After a 40-minute break, the court stated, "I think that we have resolved this matter" and asked the parties, "Is there any change in the language that got talked about?" Father's attorney responded, "No, Your Honor. My client understands that the Court has read both [county counsel]'s evidence and my client's evidence as well including the family court documents and the letters. And that we understand that we are not going to trial, and that we are submitting on the documents that have already been provided with the understanding that the Court is going to find the amended petition . . . true." (Italics added.)
Respondent points out that the Department recommended final custody orders and dismissal of the matter but, because the parties reached a settlement, the matter was not dismissed, Father was provided reunification services, and a trial was avoided. Respondent argues, "By avoiding the trial, father avoided hearing testimony from the social worker about her conversations with father, and testimony from mother amplifying her comments from the hearing about how father placed [Minor] in physical danger. [¶] . . . [¶] Father received the benefit of his bargain. He has waived the right to appeal." We agree.
As in N.M., "[t]o allow [Father] to appeal the jurisdictional finding under these circumstances is counterintuitive to legal principles of forfeiture and waiver . . . . [His] agreement to the negotiated settlement constitutes an implied waiver of his right to appeal the sufficiency of the evidence to support the jurisdictional finding." (N.M., supra, 197 Cal.App.4th at p. 168.)
Father cites In re Tommy E. (1992) 7 Cal.App.4th 1234 (Tommy E.), in which the father submitted the matter on the department's report and then challenged the jurisdictional and dispositional orders on appeal arguing they were not supported by sufficient evidence. (Id. at p. 1236.) In that case, the Court of Appeal rejected the department's argument that the father had waived his right to appeal by submitting on social services report. The court likened a parent who submits on social service reports to a criminal defendant who submits to a criminal matter on preliminary hearing transcripts (referred to as a "slow plea"), and noted that a "slow plea" does not preclude a criminal defendant from challenging his subsequent conviction based on insufficiency of the evidence. (Id. at pp. 1237-1238.)
The N.M. court distinguished Tommy E. as follows: "Although In re Tommy E., supra, 7 Cal.App.4th 1234, was in the same procedural mode as this case, there is an additional wrinkle here—the settlement negotiations undertaken to avoid a trial. Under the settlement, [the father] admitted to the acts set forth in the amended petition and agreed to address the physical acts of abuse that were stricken from the original dependency petition in therapy. [The father]'s agreement to deal with the physical abuse issue in therapy is akin to an admission because otherwise there would be no need for therapy if the juvenile court was not going to take jurisdiction of the case." (N.M., supra, 197 Cal.App.4th at p. 167.)
In N.M., as in this case, the father entered a waiver that "effectively submitted the jurisdiction issue to the court to be determined on the basis of the social worker's reports." (N.M., supra, 197 Cal.App.4th at p. 165, fn. 2.) The court found the father's agreement was "akin to an admission" because he agreed to therapy, which would not have been needed if the court did not find his daughter a dependent of the court. (Id. at p. 167.) Similarly, Father in this case agreed to family reunification services, which would not have been necessary if the court were not going to find jurisdiction.
By agreeing to the negotiated settlement, Father avoided a trial, thereby avoiding testimony from the social worker and Mother about his conduct and statements regarding Minor's medical care. Under these circumstances, it would be unfair to allow him to challenge the jurisdictional findings as unsupported by substantial evidence.
In any event, substantial evidence supports the court finding of jurisdiction in this case. Evidence showed that Minor's medical providers all had strong reservations about Minor's safety in Father's care based on his statements and actions, that Father denied Minor had nemaline myopathy and wanted to treat her for other disorders, and that father refused to accept feedback from medical professionals and was, in the social worker's opinion, "incapable of meeting his daughter's ongoing medical needs." When Minor was admitted to the hospital in 2019, Father refused intubation and later withheld consent to a tracheostomy, and the admitting doctor opined that his conduct "factored into how sick [Minor] became."
This evidence supports the allegations of the amended petition under section 300, subdivision (b), that Father "has failed to provide adequate care . . . and critical medical treatment for the child . . ., to wit, the father does not agree to a medical procedure . . . that would allow [Minor] to breathe without the breathing tube she has now, enabling her to be discharged from the hospital. . . . [Father's withholding of consent to the surgery] plac[es] the child at substantial risk of serious, and possible life threatening harm. . . . The Father's behavior and resistance to expert medical advice continues to place the child at continuing risk of physical harm." (See In re Petra B. (1989) 216 Cal.App.3d 1163, 1169 [affirming jurisdiction where "Evidence in the record indicates the parents, at the time of the hearing, were not capable or willing to exercise proper medical care"].)
Because "a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence" (In re Alexis E. (2009) 171 Cal.App.4th 438, 451), we need not consider whether the second alleged ground for jurisdiction (severe emotional damage under section 300, subdivision (c)) is supported by substantial evidence and decline to do so.
Father fails to persuade us the finding on the second ground for jurisdiction is the basis for the order on medical decision-making or could be prejudicial or could impact current or future dependency proceedings such that we should consider it under In re Drake M. (2012) 211 Cal.App.4th 754.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
/s/_________
Miller, J. WE CONCUR: /s/_________
Kline, P.J. /s/_________
Richman, J.