In re Luke
H.
Filed 11/5/13 In re Luke H. CA3
NOT TO
BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re LUKE H., a Person Coming Under
the Juvenile Court Law.
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Plaintiff
and Respondent,
v.
LUKE H.,
Defendant
and Appellant;
DEBORAH H.,
Objector
and Respondent.
C071016
(Super. Ct. No. JD231552)
Luke H., age 18, appeals from an
order of the Sacramento County Juvenile Court denying his petition for an order
compelling his mother, Deborah H., to make his nondependent sister, five-year-old
Angel H., available for weekly visitation.
erred when it relied on In re A.R.
(2012) 203 Cal.App.4th 1160 (A.R.)
to deny his petition, (2) the court had authority to enter a visitation
order against mother with respect to a nondependent sibling, (3) the
denial of his petition seeking sibling visitation violated his constitutional
court denied him a meaningful hearing. We
conclude the juvenile court did not have jurisdiction to grant Luke’s
modification petition for visitation with a nondependent sibling. We find the A.R. case to be controlling on this issue. Luke’s attempts to distinguish
jurisdiction over mother does not mean the court had jurisdiction to compel
visitation with a sibling who is not subject to the jurisdiction of the juvenile
court. Further, in this case, Luke did
not have a constitutional right to visitation with his nondependent
sibling. Finally, Luke has forfeited his
argument that there was no evidentiary hearing.
In any event, this argument fails because the juvenile court had no
jurisdiction to order visitation with a nondependent sibling regardless of any
evidence that would have been presented.
Accordingly, we affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL
BACKGROUND
title="">[2]
Circumstances
In April 2011, the
County Department of Health and Human
Services (the Department) received a referral from a mandated reporter
expressing concerns about Luke’s mental health related to ongoing abuse and
exploitation by mother.
In April 2011, a petition was filed
alleging Luke came within section 300, subdivision (c)
serious emotional damage as a result of mother’s conduct. The petition alleged mother degrades and
belittles Luke, deprives him of sleep as a form of punishment, yells at him for
hours past his bedtime, threatens to “5150â€
listen to her, and engages in other excessively controlling, humiliating, and
exploitive behavior. The petition
alleged that, as a result, Luke suffered physical symptoms including irritable
bowel syndrome (IBS), rashes, shingles, and blood in his stool.
A separate, non-detaining petition
was filed on behalf of Angel, a developmentally delayed five-year-old girl who
had been adopted by mother.
At a detention hearing in May 2011, the juvenile court found
a prima facie showing had been made that Luke comes within section 300. Luke was ordered detained with the family of
his best friend.
At a contested jurisdiction hearing
in June 2011, the juvenile court sustained the section 300, subdivision (c), allegations. The court found Luke may suffer serious
emotional damage as a result of anxiety and depression.
By stipulation of the parties, the
juvenile court dismissed the section 300 petition as to Angel.
At the conclusion of a contested disposition hearing, the
juvenile court found by clear and convincing evidence that there was a
substantial risk Luke’s physical health and emotional well-being would suffer
if returned to mother. The court
adjudged Luke a dependent and removed him from mother.
Modification Petition
Mother refused to allow visitation
between Luke and Angel. She explained to
a social worker that, due to Luke’s past history of involvement with child
pornography, she was not comfortable letting Luke visit with Angel. In addition, allowing the visitation would
expose mother to further allegations and emotionally destabilize Angel who was
working to adjust to new family dynamics.
In February 2012, Luke filed a section
388 modification petition (modification petition) seeking to compel mother to
make Angel available for weekly visits with him.
The juvenile court ordered that a
hearing take place in March 2012, “because the best interest of the child may
be promoted by the request.â€
In March 2012, mother filed
opposition to Luke’s modification petition seeking sibling visitation, citing
her constitutional right to parent her nondependent child, Angel.
In March 2012, the juvenile court
issued a tentative decision denying Luke’s modification petition. In its ruling, the court stated, “[t]he
decision is controlled by the case of†A.R.,
supra, 203 Cal.App.4th 1160.
At a hearing in April 2012, the
juvenile court adopted the tentative decision as its final decision. The court first held former section 388,
subdivision (b), does not apply to this case.
of sibling relationships†is “to protect groups of siblings who all come under
the jurisdiction of the juvenile dependency court and to emphasize the
importance of the role of the Court and the social services system once
children become our children, to recognize the importance of keeping those
children together.†Expressly relying on
A.R., supra, 203 Cal.App.4th
1160, the court held it would be acting in excess of its jurisdiction if it
ordered visitation between Luke and his nondependent sibling, Angel.
DISCUSSION
Luke contends the juvenile court
erred when it denied his modification petition seeking visitation with Angel,
his nondependent sibling. Specifically,
Luke contends (1) the juvenile court erred when it relied on
court had authority to enter a visitation order against mother with respect to
a nondependent sibling, (3) the denial of his modification petition seeking
sibling visitation violated his constitutional right to due process, and (4) the
court denied him a meaningful hearing.
Reliance on A.R.
Luke contends the juvenile court’s
reliance on A.R., supra, 203 Cal.App.4th
1160 was misplaced. This contention has
no merit. In fact, A.R. is controlling in the resolution of the modification petition.
In A.R., the appellate court reversed the portion of a dispositional
order entitling A.M., a 17-year-old dependent child, to supervised visitation
with her five-year-old half brother, A.R., whose dependency petition had been
dismissed. The A.R. court described the limited jurisdiction of the juvenile court
to make only those determinations authorized by specific statutory authority. (A.R.,
supra, 203 Cal.App.4th at p. 1170.)
The court explained: “The filing
of A.R.’s dependency petition vested the juvenile court with subject matter
jurisdiction, i.e., the inherent authority to deal with the case or the matter
before it. [Citation.] When the court dismissed A.R.’s petition
following the jurisdictional hearing, A.R. was no longer in need of the
juvenile court’s protection and its jurisdiction over him terminated. [Citation.]â€
(Ibid.)
The A.R. court explained, “there is no statutory provision requiring
sibling visitation in these circumstances.â€
(A.R., supra, 203 Cal.App.4th at p. 1171.) The court first considered section 361.2,
which provides: “Where the court has
ordered removal of the child from the physical custody of his or her parents
pursuant to Section 361, the court shall consider whether there are any siblings
under the court's jurisdiction, the nature of the relationship between the
child and his or her siblings, the appropriateness of developing or maintaining
the sibling relationships pursuant to Section 16002, and the impact of the
sibling relationships on the child’s placement and planning for legal
permanence.†(Ibid.) A.R. reasoned that, “[b]ecause A.R. was not under the court’s
jurisdiction at the time of A.M.’s dispositional hearing, this section is
inapplicable.†(Ibid.)
The A.R. court next considered section 388, subdivision (b), “which
permits a person who desires a sibling relationship with a child, who is either a
dependent of the juvenile court or the subject of a dependency petition, to
petition the court to assert that relationship and seek, inter alia, visitation
with the dependent child.†(A.R.,
supra, 203 Cal.App.4th at p. 1171; italics added.) A.R.
reasoned this statute “expressly requires the filing of a verified petition on
behalf of a person seeking sibling visitation with a dependent of the juvenile
court. Since no such petition was filed
here, that section is inapplicable.†(
We reach the same conclusion
here. By stipulation of the parties, the
juvenile court had dismissed the section 300 petition as to Angel. At that point, Angel was no longer in need of
the court’s protection and its jurisdiction over her terminated. Luke filed his modification petition
following the dismissal in Angel’s case and the disposition hearing in this
case. At that point, the court had
jurisdiction over Luke, not Angel. Because Angel no longer was under the court’s
jurisdiction, section 361.2 is inapplicable to the present case. Luke acknowledges section 388, subdivision
(b), does not apply in his case. The
fact that section 388, subdivision (b), allows a modification petition to be
filed by persons other than a dependent child does not mean the petition may be
targeted at a sibling
jurisdiction. Based on
authority providing for Luke’s visitation with Angel and the juvenile court had
no jurisdiction to order such visitation.
(See A.R., supra, 203 Cal.App.4th at p. 1171.)
Jurisdiction to Order Visitation with a Nondependent Sibling
Luke argues A.R., supra, 203
Cal.App.4th 1160 is distinguishable because the juvenile court had jurisdiction
over mother and therefore, could issue a visitation order against mother. In A.R.,
the custodial parent no longer was before the juvenile court. This argument misses the point. The A.R.
court concluded there was “no statutory authority providing for†a court order
compelling a nondependent child to visit a dependent. (Id. at
p. 1171.) The juvenile court’s
jurisdiction over mother (Angel’s custodial parent) does not matter. What matters is that the juvenile court had no
statutory authority to enter a visitation order regarding a nondependent
sibling.
Luke also attempts to distinguish
visitation order pursuant to subdivision (a), not subdivision (b), of former section
388. This distinction does not make a
difference in the juvenile court’s jurisdiction over a nondependent child.
Former section 388, subdivision (a),
identifies persons who are entitled to
petition the juvenile court “to change, modify, or set aside any order of
court previously made.†(See fn. 5,
Nothing in the subdivision purports to identify the legal basis upon which
the juvenile court order may be changed, modified, or set aside. More specifically, the subdivision does not
purport to identify persons who, through
the modification process, may be made subject to an order of the court. Thus, while the subdivision authorized Luke,
a dependent child, to file a petition to change a court order, it did not
authorize the juvenile court to issue an order affecting a child outside the
court’s jurisdiction.
Similarly, section 385 allows a
juvenile court to “change, modify or set aside its prior orders
F. v. Superior Court (2006) 144 Cal.App.4th 92, 116.) But this procedural provision does not
authorize the court to make substantive changes or modifications that otherwise
exceed the court’s jurisdiction.
Luke argues that various statutory
provisions support his contention that the juvenile court had jurisdiction to
order visitation with Angel. None of
these provisions provides such support.
Luke relies on section 202, subdivision (a), which declares that one
purpose of the juvenile court law is to “strengthen the minor’s family ties
whenever possible.†However, the
Legislature has not provided the juvenile courts with authority to issue orders
compelling or directing the behavior of minors who are outside the court’s jurisdiction.
Luke also relies on section 362, former
subdivision (c), which provided: “The
juvenile court may direct any and all reasonable orders to the parents or
guardians of the child who is the subject of any proceedings under this chapter
as the court deems necessary and proper
to carry out the provisions of this section.â€
(Italics added; Stats. 2000, chs., 908, 910, 911, § 1.5.) Here, the juvenile court considered Luke’s
modification petition but did not deem it necessary or proper. No abuse of discretion is shown.
Luke’s reliance on section 16002 is
puzzling. By its terms, this statute
applies “when siblings have been removed from their home, either as a group on
one occurrence or individually on separate occurrences.†(§ 16002, subd. (a).) The statute has no application to this case where
only one sibling was removed.
Luke cites section 362.1 and
987, 1003 (Valerie A.) for the proposition
that “the dependency statutory scheme allows a juvenile court to make orders
that preserve the relationship of dependent and nondependent siblings.†(See In
re Valerie A. (2006) 139 Cal.App.4th 1519.) The argument is untimely because it is asserted
for the first time in the reply brief. (
469, 482, fn. 10.)
In any event, section 362.1 provides
that an order placing a child in foster care shall provide “for visitation
between the child and any siblings,†“[p]
added.) As we have noted, section 16002 applies
where multiple children have been removed, either together or separately. Thus, section 16002, and by extension section
362.1, have no application where, as here, only one sibling is removed.
Visitation with Nondependent Sibling
Luke contends the juvenile court’s
denial of his request for sibling visitation violated his Fourteenth Amendment
right to due process. (U.S. Const., 14th
Amend.) Relying on various authorities,
Luke argues, “the sibling relationship is among the most important in life†and
“recognition of siblings’ fundamental right to visitation is consistent with
past United States Supreme Court decisions.â€
(Citing, e.g., Moore v. East
Cleveland (1977) 431 U.S. 494 [52 L.Ed.2d 531] (Moore).) Luke’s reliance on
In Moore, a city housing ordinance limited occupancy of a dwelling
unit to members of a single family. “But
the ordinance contains an unusual and complicated definitional section that
recognizes as a ‘family’ only a few categories of related individuals. [Citation.]
Because her family, living together in her home, fits none of those
categories,†the appellant was convicted of a criminal offense. In a case that garnered no majority opinion,
federal due process clause. (
505-521 [52 L.Ed.2d at pp. 535, 539-550].)
The salient aspect of
ordinance) that conflicted with an extended family’s private decision to reside
within a single household. In further
support of finding a constitutional basis for sibling association, Luke also
relies on Aristotle P. v. Johnson
(N.D. Ill. 1989) 721 F.Supp. 1002, a case involving a government agency (child
welfare) practice to place siblings in separate placements without providing
visits among them on a reasonable basis.
(Id. at pp. 1005, 1007,
1009-1010.) Here, in contrast, Luke is
not challenging a governmental policy or practice that conflicts with a private
family decision to allow Luke to visit Angel.
Rather, Luke is challenging the
private decision of Angel’s custodial parent to not allow the visitation. Contrary to Luke’s arguments and citations to
various commentators on the importance of sibling relationships, Luke’s right
to sibling visitation in this case is not constitutionally protected.
Finally, Luke’s reliance on
grandparent visitation cases in the family courts is also misplaced. (E.g., Troxel
v. Granville (2000) 530 U.S. 57; In
re Marriage of Harris (2004) 34 Cal.4th 210.) Grandparent visitation rights are
statutory. There are no statutes
providing the juvenile court with authority to grant dependents the right to
visit with nondependent siblings.
Hearing on Luke’s Modification Petition
Luke contends not only that he had a
right to petition for sibling visitation under section 388, subdivision (a),
but also that the allegations of his modification petition were sufficient to
warrant an evidentiary hearing. Luke
acknowledges a hearing was held but claims it was not “meaningful†because he
was denied the opportunity to present evidence in support of his petition.
Luke has forfeited this contention
by failing to offer any such evidence at the April 2012 hearing in juvenile
court. After the court issued its March
2012 tentative decision to deny Luke’s modification petition, his counsel
requested “further argument†but did not request to present evidence. At the hearing, Luke’s counsel presented
various arguments to the juvenile court but did not seek to introduce
evidence.
Luke counters that a request to
present evidence would have been futile because the juvenile court believed it
had no authority to grant the modification petition seeking sibling visitation. As we have explained, the court was correct in
ruling it had no authority to order sibling visitation in this case. Therefore, such evidence would not have made
a difference in the juvenile court’s ruling.
In any event, Luke has forfeited this contention on appeal by failing to
describe the evidence that would have been presented or explain why it was
reasonably likely to produce a different result. (E.g., People
v. Hardy (1992) 2 Cal.4th 86, 150; People v.
DISPOSITION
The order denying Luke’s Welfare and
Institutions Code section 388 modification petition is affirmed.
HOCH , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Welfare
and Institutions Code section 303 allows the juvenile court to retain
jurisdiction over a dependent child of the court until the dependent attains
the age of 21 years.
Undesignated statutory references
are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] In
September 2012, this court issued an opinion in mother’s appeal from the
juvenile court’s jurisdictional and dispositional orders. (In re
Luke H. (C069827; Sept. 11, 2012 [nonpub. opn.].) Our summary of facts is taken from that
opinion.
