Opinion
D079696
07-15-2022
In re N.T., a Minor. v. S.T., Defendant and Respondent. T.B., Petitioner and Appellant,
Marcus Family Law Center and Christopher McDonough, for Petitioner and Appellant. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 21AD000101C, Matthew C. Braner, Judge. Affirmed.
Marcus Family Law Center and Christopher McDonough, for Petitioner and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Respondent.
O'ROURKE, ACTING P. J.
For a second time, T.B. (Mother) appeals an order dismissing a petition for freedom of parental custody and control in the juvenile dependency court 1 to terminate Father's parental rights under Family Code section 7822. Mother filed for divorce from S.T. (Father) in family court in 2015, where they also litigated the custody and visitation arrangement for their son, N.T. During the family court proceeding, in July 2019, Mother filed a section 7822 petition in the juvenile court to terminate Father's parental rights. The juvenile court dismissed the petition on March 6, 2020, after finding that Mother's petition was precluded on claim preclusion and issue preclusion grounds based on the family court's prior findings. We dismissed Mother's appeal of the March 6, 2020 dismissal order as untimely.
Undesignated statutory references are to the Family Code.
Although the juvenile court and parties use the terms "res judicata" and "collateral estoppel," we follow our Supreme Court's example by using the terms "claim preclusion" and "issue preclusion" to avoid confusion. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings).)
Mother filed a second section 7822 petition in the juvenile court in February 2021. The juvenile court found Mother's second section 7822 petition was precluded on claim preclusion and issue preclusion grounds by the prior juvenile court's March 6, 2020 order dismissing her first section 7822 petition. Mother contends the court erred by applying claim preclusion and issue preclusion as to her second petition. Because we conclude that all of the requirements for issue preclusion were met, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
I. Family Court Proceedings
Mother and Father married in 2004, and had N.T. in 2013. A couple of years later, Mother filed for divorce in the family court division of San Diego County Superior Court. The family court held a four-day trial, and made findings as to N.T.'s best interests and that N.T. had a good relationship with 2 Father. The family court then granted Mother sole legal and physical custody, allowed Mother to move to Michigan with N.T., and gave Father visitation.
From December 2016 through April 2018, Father was not in contact with N.T., and spent much of this time in immigration custody. Although Father said that he tried calling N.T. while in immigration custody, Mother said she never received his calls.
In June 2018, Father moved ex parte for Skype reunification therapy with N.T. The family court granted Father's motion and also ordered the parents to participate in a high-conflict parenting program.
In early 2019, the family court ordered the parents to continue trying to find a therapist for the Skype reunification therapy, and denied Mother's request to decrease Father's Skype visits with N.T. By that time, Father and N.T. had visited by Skype around 80 times. Later, Father also filed a motion requesting in-person reunification therapy with N.T.
We note that hearing transcripts in the record indicate that Mother and Father filed numerous motions in family court, none of which are included in the record. Thus, we need not detail all such litigation in our opinion.
II. Juvenile Court Proceedings
A. Mother's First Section 7822 Petition
On July 31, 2019, before the family court hearing on Father's motion for in-person reunification therapy, Mother filed a section 7822 petition in the juvenile court to terminate Father's parental rights (first petition). Section 7822 applies when a parent leaves a child for the minimum one-year statutory period without support or communication, and with intent to abandon the child. (See Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009-1010.) In her first petition, Mother alleged that Father abandoned N.T. 3 by not communicating with or supporting him from December 15, 2016 through April 25, 2018.
At the March 6, 2020 hearing on the first petition, the juvenile dependency court confirmed that it had reviewed Mother's ex parte request for an investigation under section 7850, trial brief, and trial exhibit list, as well as the underlying family court file. The juvenile court heard argument from the parties and then noted the family court's move-away findings- which the juvenile court described as explicitly addressing the best interests of N.T. and as indicating that N.T. had a good relationship with Father. The court also outlined some of Father's efforts to pursue contact and reunification in 2018 and 2019.
As will be discussed in greater detail post, we note that the family court pleadings, the first petition, and the pleadings before the juvenile court are not included in the appellate record.
The court observed that, even if it reached the merits on Mother's first petition, it was "incomprehensible . . . that [it] would find that [Father] intended to abandon [N.T.]; and that legally severing his relationship with his child after five years of litigation during which he continually sought contact would be in [N.T.'s] best interests." The court then found N.T.'s "best interests have been at the heart of previous litigation over the course of years." It dismissed Mother's first petition on claim preclusion and issue preclusion grounds. It believed laches also applied. The court reiterated that if it reached the merits, it would still find it was in N.T.'s best interests to have a parent in his life with the rights and obligations of a father. At the conclusion of the hearing, Mother requested specific findings of fact and law, and the court responded, "I'm not reaching the merits. I'm dismissing the petition." 4
On June 3, 2020, Mother appealed the juvenile court's dismissal of her first petition. We dismissed Mother's appeal as untimely and issued the remittitur on January 27, 2021.
B. Mother's Second Section 7822 Petition
Only a couple of weeks later, on February 4, 2021, Mother filed a second section 7822 petition (second petition) in the juvenile court to terminate Father's parental rights. In her petition, Mother stated that "[t]he circumstances in this case have not changed" and again alleged that Father did not communicate with or support N.T. from December 15, 2016 through April 25, 2018.
The juvenile court appointed an investigator to evaluate the termination of Father's parental rights. The court-appointed San Diego County Health and Human Services Agency (the Agency) investigator reported that the Agency did not support terminating parental rights when there was no pending adoption and requested that Mother's petition be dismissed. Nonetheless, the juvenile court ordered the Agency to complete the investigation, which it agreed to do.
After the Agency began the investigation process, Mother and the Agency disagreed about whether N.T. needed to be interviewed in person in San Diego-which the Agency stated was its standard practice to avoid another's influence on the Minor during a virtual interview. During this period, the court also appointed an attorney to represent N.T. N.T.'s attorney recommended that N.T. go to California for the in-person interview and suggested that by doing so, N.T. could also have a visit with his father.
On September 23, 2021, the juvenile court heard argument about whether Mother's second petition should be dismissed on claim preclusion and issue preclusion grounds. The court noted that Mother's second petition 5 "raises exactly the same issues" as the first petition, including that Mother "continues to allege that [Father] abandoned [N.T.] by failing to support and communicate with him from December 15, 2016 until April 25, 2018, the exact same tolling period alleged in [the first petition]." The court later noted that the second petition did "not allege any new facts such as the subsequent period of abandonment or a continuing failure to support and communicate with [N.T.] . . . that would justify a new petition." The court further observed that the second petition was "simply an attempt to get a different ruling on the same facts or perhaps, and the court doesn't know this, an attempt to restart the clock for an appeal."
The court acknowledged that the juvenile court's March 6, 2020 hearing on the first petition was not a full trial on the facts and that, instead, the court's decision at that hearing "was based upon the legal issue of whether the case was precluded by principles of res judicata, collateral estoppel, laches, and bad faith," which the parties were given an opportunity to brief and argue. The court further noted that "a judgment without a trial on the facts can still be on the merits" and that the first petition's prior dismissal "was not based on a procedural or a curable defect such as a delay in the prosecution." The court therefore concluded that the first petition's dismissal, which had been unsuccessfully appealed, was "a final decision on the legal merits, even if it was not a decision on the facts. [Mother] is therefore estopped from raising the same issues and-in this new petition."
Mother appeals from the court's dismissal of her second petition. 6
DISCUSSION
I. Relevant Legal Principles
A. Section 7822
Section 7822 allows the court to declare a child free from the custody and control of the child's parent if a parent "has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent, with the intent on the part of the parent to abandon the child." (§ 7822, subd. (a)(3).) The failure to provide support or the failure to communicate is presumptive evidence of the intent to abandon. If the parent has made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent. (§ 7822, subd. (b).) In a proceeding under section 7822, the court is required to "consider the wishes of the child, bearing in mind the age of the child, and . . . act in the best interest of the child." (§ 7890.) A declaration of freedom from parental custody and control terminates all parental rights and responsibilities to the child. (§ 7803.)
B. Claim and Issue Preclusion
Preclusion comes in two main forms: claim preclusion and issue preclusion. (See Samara v. Motor (2018) 5 Cal.5th 322, 326 & fn. 1 (Samara).) As the names suggest, claim preclusion prevents relitigation of entire claims (or "causes of action") (id., at p. 326), while issue preclusion prevents relitigation of specific issues (id., at p. 327).
Claim preclusion applies if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. (Samara, supra, 5 Cal.5th at p. 327.)
Issue preclusion applies: (1) after a final judgment on the merits; (2) of an identical issue; (3) actually litigated and necessarily decided in the first 7 suit; and (4) asserted against one who was a party in the first suit or one in privity with that party. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 (Lucido).) Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. (DKN Holdings, supra, 61 Cal.4th at p. 824.) Thus, under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. (Ibid.)
C. Standard of Review
We review de novo the application of claim and issue preclusion. (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507; Ronald F. v. State Dept. of Developmental Services (2017) 8 Cal.App.5th 84, 92.)
II. Mother's Challenge of her Second Petition's Dismissal
Mother contends that the juvenile court wrongly applied issue preclusion to her second petition for any of several reasons: (1) the juvenile court's dismissal of her first petition was error; (2) the dismissal of her first petition was not a final judgment on the merits; and (3) the issues in her first and second petitions were not identical and not actually litigated.
As a threshold matter, we conclude that the time for challenging the juvenile court's dismissal of Mother's first petition has passed. We also conclude that all of the issue preclusion factors are met here and thus, issue preclusion barred Mother from relitigating the same abandonment issues in her second petition that she raised in her first petition. Because we rely on issue preclusion to affirm the court's dismissal of Mother's second petition, we need not consider the parties' other arguments concerning claim preclusion. 8
A. The First Petition's Dismissal
Mother first complains that the juvenile court erred by dismissing her first petition on claim preclusion, issue preclusion, and laches grounds. Mother reasons that, because it was purportedly error to dismiss her first petition, it was also error for the court hearing her second petition to apply claim and issue preclusion based on the erroneous prior dismissal of her first petition. Father, however, argues that the time for challenging the dismissal of the first petition has passed. We agree with Father.
Mother appealed the juvenile court's order dismissing her first petition-an appeal that we dismissed in November 2020. Thus, the juvenile court's dismissal of Mother's first petition is final. Moreover, even if we were to accept Mother's argument that the juvenile court wrongly decided her first petition, our conclusion would remain the same. For claim and issue preclusion purposes," 'an erroneous judgment is as conclusive as a correct one.'" (Olwell v. Hopkins (1946) 28 Cal.2d 147, 152.) (See also Smith v. Smith (1981) 127 Cal.App.3d 203, 209 ["Although the 1968 determination that the divorce decree was res judicata on the issue of retirement benefits was incorrect [citations], this fact does not control. For the purpose of the doctrine of res judicata, an erroneous judgment is as conclusive as a correct one."]; 7 Witkin, Cal. Proc. (6th ed. 2022) Judgment, § 397, p. 915 ["[A] judgment is binding and conclusive against collateral attack even though it is harsh or unjust, contrary to the evidence, or based on errors of law."].) Because we conclude that the time has passed for challenging the juvenile court's dismissal of Mother's first petition, we need not reach Mother's numerous substantive arguments about why that dismissal was purportedly erroneous. 9
Moreover, even if we did consider Mother's substantive arguments attacking the dismissal of her first petition, we would be unable to evaluate them because the record does not include the pleadings filed in the family court action, the transcript from the family court action proceeding, or the pleadings filed in the first juvenile court action. On appeal, "a judgment is presumed correct"; "all intendments and presumptions are indulged in favor of correctness"; and "the appellant bears the burden of providing an adequate record affirmatively proving error." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Thus, on this record, we are unable to determine whether, based on the family court action, Mother's first petition was properly found to be barred by issue preclusion and claim preclusion. It is Mother's burden to adduce a record sufficient to show that the juvenile court erred in dismissing her first petition based on issue and claim preclusion, and she has not met that burden. In any event, it is unnecessary for us to make this determination because, as discussed ante, the juvenile court's dismissal of Mother's first petition is final.
B. Final Judgment on the Merits
Mother also contends that the dismissal of her first petition was not preclusive because it was not a "final judgment." The crux of her argument is that because a party may file a new petition under section 7822 at "any time," the dismissal of her section 7822 first petition could not be final. But that is not the law on finality for preclusion purposes. Rather, as Father contends, a decision is final when it is "free from direct attack." (Lucido, supra, 51 Cal.3d at p. 342.) Thus, we agree with Father that because Mother did not prevail on her appeal of the court's dismissal of her first petition, it constitutes a final judgment for issue preclusion purposes. 10
Mother also raises numerous reasons why the dismissal of her first petition was purportedly not "on the merits," including that: the court stated at the first petition's hearing that it was "not reaching the merits" because it was applying res judicata; the court did not order an investigation under section 7850; the court "prejudged" the evidence; the court misapplied claim and issue preclusion; and the court did not reach the "best interests" question. We are not persuaded.
The transcript of the March 6, 2020 hearing reflects that the court dismissed the first petition only after thoughtfully considering the parties' briefing and submitted evidence, reviewing the underlying family court file and case's history, hearing oral argument from Mother and Father, and acknowledging on the record that it would be "incomprehensible" for the court to find that Father abandoned N.T. and that terminating Father's parental rights was in N.T.'s best interests. (See Moch v. Superior Court of Los Angeles County (1919) 39 Cal.App.471, 476 ["The cases are not rare wherein judgments or orders purporting to be merely 'dismissals' have been held to be final adjudication upon the merits. This question is to be determined, not on the basis of any single word or phrase used, but upon consideration of the entire judgment,' together with the pleadings and the findings."].) Therefore, we conclude that the court determined the merits of an issue-that claim and issue preclusion applied as a matter of law to prevent the court from terminating Father's parental rights based on the facts alleged in the first petition.
We also reject Mother's characterization of this dismissal as based on a mere technical defect. (See Shore v. Shore (1954) 43 Cal.2d 677, 680-681 "[A]lthough a judgment refusing to determine an issue on the ground of lack of jurisdiction is not ordinarily res judicata, [citations], when the decision on 11 the jurisdictional question is based upon a determination of the merits of an issue before the court, it constitutes a binding determination of that issue."]; Cf. Buell v. CBS, Inc. (1982) 136 Cal.App.3d 823, 826 [[Dismissal ... for failure to serve the complaint is not a dismissal on the merits.]; Goddard v. Security Title Ins. & Guarantee Co. (1939) 14 Cal.2d 47, 54 (Goddard) [explaining that a dismissal for pleading the wrong remedy, filing with the wrong form, or for want of prosecution are not judgments "on the merits"].)
Moreover, contrary to Mother's suggestion, a decision on the facts is not required for a decision to be on the merits. (Olwell, supra, 28 Cal.2d at p. 150 ["A decision on the merits, however, is not necessarily a decision upon the facts."].) Mother's emphasis on the juvenile court's statement at the hearing that it was "not reaching the merits" does not change our conclusion. (See Goddard, supra, 14 Cal.2d at p. 54 ["[I]f the intention of the court, gathered from its order or other source, were the test of the effect of the judgment on subsequent actions . . . the bar of a judgment would depend wholly upon the whim of the first judge."].) The court's application of claim and issue preclusion to Mother's first petition was no less a decision on the merits than a dismissal based on questions of fact.
We need not address Mother's remaining arguments on this issue because each of them concerns whether the court correctly decided to dismiss her first petition, which, as we have already concluded ante, constitutes a final judgment and is not subject to attack at this late stage. Thus, we conclude that the March 6, 2020 dismissal of Mother's first petition is a final judgment on the merits.
C. Identical Issue
" 'The "identical issue" requirement addresses whether "identical factual allegations" are at stake in the two proceedings, not whether the 12 ultimate issues or dispositions are the same. [Citation]." (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511-512.) The doctrine bars relitigation on an issue litigated and decided, even if some factual matters or legal theories could have been presented but were not. (Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1042; Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401-402.)
Mother contends that the identical issue requirement was not met here because her second petition alleged "new" facts not contained in her first petition. As a preliminary matter, we conclude that Mother has not met her burden of adducing an adequate record on appeal to support this argument. (See Fladeboe, supra, 150 Cal.App.4th at p. 58 [On appeal, "a judgment is presumed correct"; "all intendments and presumptions are indulged in favor of correctness"; and "the appellant bears the burden of providing an adequate record affirmatively proving error."]; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 (Nielsen) ["It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error . . . Thus, an appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited."].) Specifically, because the record does not contain Mother's first petition, we are unable to compare it with the second petition to evaluate her argument that it contains different facts.
Moreover, what we can glean from the record establishes the opposite. For example, Mother's second petition stated that "[t]he circumstances in this case have not changed." And it is clear from the reporter's transcript that the juvenile court found that Mother's second petition alleged the same facts as her first petition, not new ones: 13
"This court finds, and I'm not sure there is any dispute about this, that F.F.C.C. Petition No. 2 raises exactly the same issues as the previous petition dismissed by Judge Gaston. [Mother] continues to allege that [Father] abandoned [N.T.] by failing to support and communicate with him from December 15th, 2016, until April 25th, 2018, the exact same tolling period alleged in F.F.C.C. Petition No. 1."
Without the first petition, we have no way of determining if the juvenile court erred in that determination. Thus, because the record is insufficient to show that the court erred in concluding the identical issue requirement was met, we must presume the correctness of that finding.
Mother contends that we should consider the time period between when she filed her first petition on July 31, 2019, through when she filed her second petition on February 4, 2021, as a new one-year period of abandonment, meaning that issue preclusion could not bar her second petition. We decline to do so. As Mother acknowledges, in In re Allison H., we considered the abandonment period of a subsequent Civil Code section 232 petition (Family Code section 7822's predecessor statute) to run from the hearing on the first petition, not from the earlier date of the first petition's filing. (In re Allison H. (1991) 230 Cal.App.3d 154, 160 ["The pertinent question is whether [Father] is foreclosed from relitigating the same abandonment issue based on conduct predating [the] April 1990 [hearing]."].)
Section 7822 continued Civil Code section 232 without any substantive change. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162, fn. 6.)
Mother does not offer any authority to support her request that we consider the abandonment period to instead run from the filing date of her first petition. And we see no reason to depart from In re Allison H. Thus, we conclude that any plausible "new" abandonment period not barred by the dismissal of Mother's first petition started on the March 6, 2020, hearing date 14 on Mother's first petition and continued through the February 4, 2021 filing of her second petition-a period of 11 months, which does not satisfy the one-year minimum abandonment period. In other words, even if we took judicial notice of Mother's first petition, we would still conclude that the only one-year or longer abandonment period at issue in both of Mother's petitions was identical. In any event, Mother has not established that any "new" facts alleged in her second petition-between the hearing on her first petition and the filing of her second petition-would warrant reexamination of whether Father's parental rights should have been terminated.
Accordingly, we conclude that "identical issues" were at stake in Mother's first and second petitions.
D. Actually Litigated
In her opening brief, Mother fails to address whether the juvenile court's March 2020 dismissal of her first petition satisfied the "actually litigated" test. Instead, she complains only that the family court proceeding did not satisfy the actually litigated test, and thus, that the juvenile court erroneously found that her first petition was precluded. But whether the family court proceeding satisfied this test is not relevant to this appeal because, as discussed ante, the dismissal of the first petition is a final judgment and presumed correct. Rather, the issue is whether the juvenile court proceeding dismissing Mother's first petition satisfied this test. Specifically, we must determine whether the termination of Father's parental rights based on the December 2016 to April 2018 abandonment period alleged in Mother's first petition was "actually litigated" at the juvenile court's March 2020 hearing during which it dismissed Mother's first petition. We conclude it was. 15
An issue was "actually litigated" in a prior proceeding if it was "properly raised, submitted for determination, and determined in that proceeding." (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511.) "In considering whether these criteria have been met, courts look carefully at the entire record from the prior proceeding . . . ." (Ibid.) Like with the identical issues test, however, the record of the juvenile court's dismissal of the first petition is woefully inadequate and is limited to the March 2020 hearing transcript. (Fladeboe, supra, 150 Cal.App.4th at p. 58; Nielsen, supra, 178 Cal.App.4th at pp. 324-325.)
As discussed previously, that transcript indicates that the juvenile court considered the evidence and argument provided by the parties, as well as the underlying family court file. The transcript also indicates that the alleged abandonment period spanned from November 2014 to June 2018, including that Father allegedly did not communicate with N.T. from December 2016 to April 2018. The court specifically acknowledged that it could terminate Father's parental rights but stated that it would not be in N.T.'s best interests and that, even if it did consider the merits, it would be "incomprehensible" to find that Father abandoned N.T. under the statute. The court held that claim preclusion, issue preclusion, and laches barred Mother's first petition. Thus, we conclude the issue was "actually litigated."
In her reply brief, Mother for the first time asserts that the first petition was not "actually litigated" because there was no investigation under section 7852 and no trial under section 7870. But "[n]ormally, a contention may not be raised for the first time in a reply brief." (People v. Peevy (1998) 17 Cal.4th 1184, 1206; accord People v. Silveria and Travis (2020) 10 Cal.5th 195, 255 ["' "[I]t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other 16 party." '"].) We do not consider arguments raised for the first time in the reply brief without a showing of good cause, which Mother did not make. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)
Moreover, even if we did consider this argument, we would reject it. First, the "actually litigated" test does not require that the issue went to trial. As to Mother's complaint about the lack of an investigation under section 7852, Mother, herself, acknowledges this is a procedural error that does not result in reversal per se. Rather, the error is subject to a harmless error analysis. (In re Marriage of E. & Stephen P. (2013) 213 Cal.App.4th 983, 994, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Here, the juvenile court used the family court findings to dismiss Mother's first petition based on claim and issue preclusion. Thus, there is no reasonable probability that Mother would have obtained a different result had the court considered the results of an investigation. Because she has failed to demonstrate how she was prejudiced, she has not shown reversible error." 17
Mother's briefing is unclear and often conflates her arguments about the first petition's dismissal with her arguments about the second petition's dismissal. To the extent Mother also intended to argue that the lack of investigation was an error in the court's dismissal of her second petition, we are not persuaded for the same reasons. The juvenile court dismissed Mother's second petition, also based on claim and issue preclusion. Thus, there is no reasonable probability that Mother would have obtained a different result had the court waited for the Agency to complete its ongoing investigation and then considered the Agency's report. Mother has not shown reversible error on this ground, either.
E. Necessarily Decided and Same Parties
Mother concedes that the "necessarily decided" and "same parties" tests are met for issue preclusion purposes. (Lucido, supra, 51 Cal.3d at pp. 341-342) We agree.
Because we conclude that all five issue preclusion factors were satisfied between Mother's first and second petitions, Mother was barred from relitigating the same abandonment issues in her second petition. Therefore, we affirm the juvenile court's dismissal of Mother's second petition.
Because we may affirm the juvenile court's decision on any ground, we need not consider whether its dismissal should be affirmed on claim preclusion grounds. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 ["If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion."].)
DISPOSITION
The order is affirmed.
WE CONCUR: DO, J., BUCHANAN, J. 18