In re A.E.

Filed 8/7/09 In re A.E. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Lily Sinfield, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.

William D. Caldwell, under appointment by the Court of Appeal, for Minors.

Defendant and appellant D.E. (Mother) appeals from orders terminating her parental rights with respect to three of her children, A.E., S.E., and O.E., pursuant to section 366.26 of the Welfare and Institutions Code.^[1] She contends: (1) there is insufficient evidence to support the juvenile courts finding she had been provided with reasonable reunification services; and (2) the court erred and deprived her of due process when it terminated her parental rights without making a proper postdispositional finding of parental unfitness. Plaintiff and respondent San Bernardino County Children and Family Services (CFS)^[2]disputes these contentions and asserts that Mother has waived any argument concerning the courts findings for failing to contest them below.^[3] For the reasons that follow, we affirm the courts orders.

I. Summary of Facts AND PROCEDURAL HISTORY

A. Background

Mother has six children. When this dependency case began in February 2007, the three children who are the subject of this appeal, A.E., S.E., and O.E., were ages two years, seven years, and eight years, respectively; we will refer to them at times as the younger children. The three other children were ages 11, 13, and 14; we will refer to them as the older children.

In February 2007, a social worker went to Mothers home in response to a call from a San Bernardino County Sheriffs deputy. The residence had no running water, no food, broken windows, a smell of feces and urine, and piles of trash in the side yard and backyard. The house was condemned and red tagged. There were no personal hygiene products in the house and no diapers or formula for the baby. At the time the deputy was at the house, he found only one person present, Mothers 11-year-old child. Mother was arrested for child endangerment.

Mother informed the deputy that she leaves home each day at 7:00 a.m. for school and returns around 8:00 p.m. The father of the children is in prison. During the day, when Mother is away, the younger children are cared for by their paternal grandparents. She told the deputy that her adult daughter was supposed to help her out with the house and children while she was in school, but that the daughter took over the home with her friends and boyfriend and that she became overwhelmed. She felt depressed about how things in her life were going and she just let things go in her home and life, except for her schooling.

CFS removed each of the children from Mothers custody. The older children were placed in foster care; the younger children were placed with their paternal grandparents.

Juvenile dependency petitions concerning the children were filed on February 5, 2007. Pursuant to section 300, subdivisions (b) and (g), CFS alleged: Mother failed to provide adequate housing, food, clothing, and medical treatment for the children; the family residence was found to be unfit for human occupancy by code enforcement; the children do not have proper supervision by Mother because she is not home to supervise and protect them; Mother does not have the financial ability to provide appropriate or adequate care for the children; Mother was arrested and booked into jail on a charge of child endangerment and is currently incarcerated, leaving her unable to parent and provide for the children; and the childrens father is currently incarcerated and unable to provide care for the children.

In its jurisdictional/dispositional report, CFS recommended that the court find (among other findings) that clear and convincing evidence shows that the children should be removed from Mothers custody because there is a substantial danger to the physical health, safety, and protection, well being of the children . . . or would be if the children . . . were returned home, and there are no reasonable means by which the childrens . . . physical health can be protected without removing the children . . . from the [M]other[s] . . . and the father[s] . . . physical custody.

CFS proposed a case plan for Mother that called for Mother to participate in: individual and conjoint counseling sessions for family issues/problems, as well as her own interpersonal issues and issues of possible depression; and a parenting program. The children are to participate in individual and family counseling sessions for family issues/problems, as well as their own interpersonal issues.

At the jurisdictional/dispositional hearing, Mother made no objection to, and did not contest, the jurisdictional findings. Nor did she object to the case plan. The court found each of the allegations true and adopted each of the findings proposed by CFS. The court also approved the case plan. Mother did not appeal from the dispositional orders.

Mother was released from jail in July 2007. She obtained housing and started parenting classes. In the social workers September 2007 status review report, the social worker stated that the family does not appear to be functioning at a level in which the [M]other . . . can make safe and appropriate choices for her children, . . . but is working to change it. The social worker recommended that the children remain in their current placements and that reunification services continue to be provided to Mother. According to the social worker, Mother needs to start individual and co-join[t] counseling to address initial reasons for removal. The social worker recommended that the court find that returning the children to Mother at this time would create a substantial risk of detriment to the safety, protection, or physical/emotional well-being of the children. It was also recommended that the court find that reasonable services have been provided to Mother.

At the six-month review hearing, Mother did not object to or contest CFSs recommendations. The court adopted the proposed findings, expressly finding that return of the children to Mother would create a substantial risk of detriment to the childrens safety, protection, or physical or emotional well-being. The court further found that the services provided by CFS were reasonable. The court also ordered weekly visits between Mother and the children.

In February 2008, CFS recommended that the three older children be returned to Mother on family maintenance status, and that the younger children remain with the paternal grandparents. In a status review report, the social worker reported that Mother shares a two bedroom apartment with her sister and has completed parenting classes and counseling, but has had problems maintaining adequate income. The social worker further reported that during visits, the younger children are hesitant. The youngest child, A.E., walks around lost and [O.E.] with [S.E.] stay busy until the visits are over. At one visit, Mother said in front of the younger children that she would make arrangements with grandmother for grandmother to keep custody of them when she gets the children back. The social worker recommended that the court make a detriment finding and further find that reasonable services have been provided to Mother.

In March 2008, CFS filed an addendum status report that evidences Mothers completion of a 10-session cooperative parenting program. She also completed co-joint counseling sessions with the older children and was referred to another series of co-joint counseling. The social worker further reported that Mother is attending a 52-week child abuse class.

At the 12-month review hearing, Mother did not object to or contest the proposed findings. The court found that returning the children to the parents would create a substantial risk of detriment for the safety, protection, physical and emotional well-being of [the younger children]. The court further found that reasonable services have been provided to Mother. The court informed Mother that another hearing would be set to give [her] more reunification services, and that if she has not reunified with the children by that time, the court would have to go to a permanent plan, and [i]f the permanent plan is adoption, your rights as a parent could be terminated. The court ordered weekly visits and allowed unsupervised and overnight weekend visits.

B. 18-Month Review Hearing

Prior to the 18-month review hearing, the social worker reported that Mother had failed to meet most of her case plan objectives. Mother visited the children intermittently. Regarding a June 2008 visit with the children, the social worker reported the following: Mom does not give hugs, kisses or show much affection or emotion towards the children. They pretty much were playing on their own independently. Mom at times sat there staring for as long as a minute or so and no conversation with children. Mom sat there and let kids know to get this or that for her, to try and read or ask them what to do or what they want to do. . . . So when it was time to go she just left. No goodbye hugs and kisses for children. Or see you next week statement. One of the younger children gets scared at visits and yells at grandparents for leaving him when it is time for visits with [M]other and siblings.

Under the heading, detriment [and] prognosis of returning children home (capitalization omitted), the social worker stated: The [M]other has had eighteen (18) months of services. The children have had therapy to help resolve [t]heir fears even conjoint therapy. Mother was told by children in therapy they do not want to live with her. The social worker concluded that the younger children are not close to [M]other, but are very close to paternal grandparents with whom they have lived with most of their lives and are attending counseling. The three (3) [younger] children, along with grandparents, want adoption as the permanent plan.

At the 18-month review hearing in July 2008, Mothers counsel told the court that Mother understands that the younger children would like to stay where they are. Of course[,] Mother would like to have them home, and she would not want them to be adopted, but at this point considering the opinions of the three younger children, Mother is not asking to set a contested [section 366.22] hearing. Mother did not object to or challenge any of CFSs recommendations.

The court adopted the findings recommended by CFS. These included the finding that return of the younger children to [M]other at this time would create substantial risk of detriment to childrens safety, protection or physical/emotional well-being, and that reasonable services had been provided to Mother.

The court ordered that fathers rights with respect to seeking writ relief be sent to him. The court did not notify Mother of her right to seek an extraordinary writ.

C. Section 366.26 Hearing

In a report prepared for the section 366.26 hearing, a social worker reported that Mother doesnt play with the children much during visits. The children have an insecure attachment with the [M]other and state they do not care if they have visits with [M]other or not. The children told the social worker that they dont want to go back with [M]other and want to be adopted.

At the section 366.26 hearing, Mother argued that adoption is not appropriate because of the very strong bond between her and the children. She did not make any argument concerning the courts prior detriment findings or its findings concerning the provision of services. The younger children, through counsel, requested that the court follow the recommendation of adoption. Their attorney noted that the younger children have expressed their desire to live with their grandparents. After taking judicial notice of the courts prior findings, orders, and judgments in the case, the court terminated the parents parental rights as to the younger children and referred them for adoption.

II. ANALYSIS

A. Adequacy of Services

Mother contends there is insufficient evidence to support the courts finding at the 18-month review hearing that CFS provided reasonable reunification services.^[4] Specifically, she points to the evidence that the children did not wish to live with Mother and argues that it was therefore essential that the [children] receive ongoing conjoint counseling with the [M]other until their issues were resolved. (Bolding omitted.) She further contends that the problems that the children were having with the idea of moving back in with their [M]other could have been easily remedied by having the children participate in a regular visitation schedule in the new home [M]other had moved into, so they could see that they would not be returning to the home they remembered.

CFS contends that Mother has waived this argument by failing to assert it below and, if the argument has not been waived, it is without merit.^[5] We agree with CFS.

1. Waiver or Forfeiture for Failure to Raise Issue Below

Mother never challenged the adequacy of reunification services below. A reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Dependency matters are not exempt from this rule. (Ibid.) There are multiple reasons for this rule. As one court explained: The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] [Citations.] (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.) As other courts have noted, any other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)

This rule applies here. If Mother had raised any concerns about the adequacy of reunification services before the juvenile court, or requested that she or the children receive additional counseling or other services, the court may well have decided that further services were necessary or appropriate and ordered CFS to provide them. That is, if the services were inadequate, the problem could easily have been corrected by the juvenile court. By failing to raise any issue regarding the adequacy of services below, however, the court had no reason to know that there was any problem that needed to be corrected. Allowing Mother to challenge the adequacy of services on appeal when she stood by in silence despite the alleged inadequacies would be unfair to the juvenile court and the other parties involved. Accordingly, Mother has waived or forfeited this argument.

2. Sufficiency of the Evidence to Support the Courts Finding That CFS Provided Reasonable Reunification Services

Even if Mother had not waived or forfeited her challenge to the adequacy of services, we would reject the argument.

We review a juvenile courts finding that an agency offered or provided reasonable reunification services for substantial evidence. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.) In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

[T]he focus of reunification services is to remedy those problems which led to the removal of the children. [Citation.] A reunification plan must be tailored to the particular individual and family, addressing the unique facts of that family. [Citation.] A social services agency is required to make a good faith effort to address the parents problems through services, to maintain reasonable contact with the parent during the course of the plan, and to make reasonable efforts to assist the parent in areas where compliance proves difficult. [Citation.] However, in most cases more services might have been provided and the services provided are often imperfect. [Citation.] The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances. [Citation.] (Katie V. v. Superior Court, supra, 130 Cal.App.4th at pp. 598-599.)

In addition to issues concerning the uninhabitability of her home, Mother had issues concerning depression and parenting skills. CFS made available to her parenting courses and individual and conjoint counseling. It was apparently during counseling sessions that the children indicated that they did not want to live with Mother. On appeal, Mother argues that additional counseling, or changing the location of the counseling or visits to Mothers new home, might have resolved the issues between Mother and the children. Such speculation, however, is not a basis for finding that the services were inadequate. Our review of the record reveals that the case plan was reasonably designed to address the problems that led to the removal of the children, and that CFS maintained contact with Mother and provided the services called for under the plan in good faith. Accordingly, even if the argument has not been waived or forfeited, there the court did not err in finding that the services offered and provided by CFS were reasonable.

B. Issues Regarding Courts Detriment Findings

Mother contends that her due process rights were violated when the court terminated her parental rights at the section 366.26 hearing without making a finding of parental unfitness. We reject this argument.

Initially, we note that the standard of parental unfitness, which had been used under prior California law, was dropped [in 1969 when] the Legislature created the new rule that in order to award custody of a child to a nonparent the court was required to render a finding that an award to a parent would be detrimental to the child and that such an award to a nonparent was required to serve the best interests of the child. (In re B.G. (1974) 11 Cal.3d 679, 695; see also In re P.A. (2007) 155 Cal.App.4th 1197, 1211.) A finding of such detriment is the equivalent of a finding of parental unfitness. (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.)

In order to remove children from the custody of a parent, a court must find, by clear and convincing evidence, the existence of detrimental circumstances justifying removal. ( 361, subd. (c); In re Michael D. (1996) 51 Cal.App.4th 1074, 1082; In re H.E. (2008) 169 Cal.App.4th 710, 720.) Such detrimental circumstances include, as is relevant here, that [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. ( 361, subd. (c)(1).) After removal, detriment findings are generally required at review hearings when the court orders that a child not be returned to a parent. (See, e.g.,  366.21, subds. (e), (f), 366.22, subd. (a).)^[6] Here, the court stated that it made its initial detriment finding at the dispositional hearing according to the clear and convincing evidence standard and thereafter made detriment findings at each review hearing. Each time, the finding was made without being contested by Mother.

In contrast to the requirement of finding detrimental circumstances upon disposition and at review hearings, nothing in section 366.26 requires such a finding be made at a hearing held pursuant to that section. Nor does due process require such a finding at that time. (In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403; In re Amanda D. (1997) 55 Cal.App.4th 813, 819.) As our state Supreme Court explained in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242: By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard [citation]; in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. [Citations.] Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached. (Id. at p. 253.) Thus, [b]y the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer reason to believe that positive, nurturing parent-child relationships exist [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished. (Id. at p. 256.) Moreover, even after the court terminates reunification services and sets a section 366.26 hearing, a parents due process rights are protected because the parent has the continuing right to petition the court for a modification of any of its orders based upon changed circumstances or new evidence pursuant to section 388. (In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.)

Mother argues that changes to the juvenile dependency statutory scheme since Cynthia D. was decided have limited the opportunity that a juvenile court has to evaluate parental fitness. She refers to changes that permit the termination of reunification services under certain circumstances at the first review hearing or earlier. (See  361.5, subd. (b) [expanding list of circumstances where court can refuse to provide reunification services], 366.21, subd. (e) [court may set a  366.26 hearing if child is under three years of age or part of a sibling group and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan], 388, subd. (c) [party may petition court prior to permanency hearing to terminate reunification services].) Even if such changes could be viewed as undermining the rationale or precedential force of Cynthia D., Mother does not assert that these statutory changes had any effect on her in this case.

Mother also relies on In re Gladys L. (2006) 141 Cal.App.4th 845, In re G.S.R. (2008) 159 Cal.App.4th 1202, and In re P.C. (2008) 165 Cal.App.4th 98 (P.C.). In Gladys L. and G.S.R., the termination of a nonoffending fathers parental rights was reversed because the juvenile court never made a finding of parental unfitness as to the father. (In re Gladys L., supra, at pp. 848-849; In re G.S.R., supra, at pp. 1205, 1215.) These cases have no application here because Mother is an offending parent against whom the court made the requisite findings of detriment.

P.C. involved an offending parent. Although that case involved an appeal following the termination of parental rights at a section 366.26 hearing, the Court of Appeal focused on the adequacy of the juvenile courts findings at the 18-month review hearing when the section 366.26 hearing was set.^[7] At that time, the mother had corrected all the problems that led to the juvenile courts assertion of jurisdiction over the children and completed all the parenting classes and counseling required by her case plan. (P.C., supra, 165 Cal.App.4th at p. 105.) The only reason for not returning the children to the mothers custody at the 18-month review hearing was her lack of appropriate housing. (Ibid.) However, the mothers failure to find adequate housing was due in part to the social services agencys failure to do its part in helping mother find [suitable] housing. (Id. at p. 106.) Nevertheless, the juvenile court found that the agency fulfilled its obligation to provide reasonable services to the mother and that the return of the children to mother would create a substantial risk of detriment to the physical and emotional well-being of the children. (Id. at pp. 102, 106.) The juvenile court terminated services and set a section 366.26 hearing. (Id. at p. 102.) At the section 366.26 hearing, the juvenile court terminated the mothers parental rights. (Id. at p. 103.) The Court of Appeal reversed, holding that the mothers lack of acceptable housing was an insufficient basis for the courts detriment finding and that there was insufficient evidence to support the trial courts finding that the social services agency provided or offered all reasonable services. (Id. at p. 106.)

Initially, we note that we do not read P.C. as holding that a juvenile court must make a detriment finding (or a finding of parental unfitness) at the section 366.26 hearing. As the court in Cynthia D. v. Superior Court, supra, 5 Cal.4th 242 explained: [T]he purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement. (Id. at p. 253, fn. omitted.) Thus, the sole issue at the section 366.26 hearing is whether there is clear and convincing evidence that the child is adoptable. (In re Josue G. (2003) 106 Cal.App.4th 725, 733; In re David H. (1995) 33 Cal.App.4th 368, 378;  366.26, subd. (c).) Indeed, a courts prior findings of parental unfitness, detriment, and the failure of attempts at reunification may not be reopened or reconsidered at the termination hearing . . . . (In re Zeth S. (2003) 31 Cal.4th 396, 411.)

To the extent that Mother is relying on P.C. for the purposes of challenging the courts previous findings of detriment, the reliance is misplaced. First, any challenge to findings made at the dispositional hearing or at postdispositional hearings from which an appeal may be taken has been forfeited by failing to timely appeal from the orders made at such hearings. (See In re Javier G. (2005) 130 Cal.App.4th 1195, 1199-1200; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Second, as with her challenge to the finding made at the 18-month review hearing regarding the reasonableness of CFSs services, any argument regarding the courts detriment finding made at that hearing has been waived or forfeited by failing to assert it below.

Third, even if this argument was properly before us, there is substantial evidence to support the courts prior finding. (See Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763 [detriment finding is reviewed for substantial evidence].) After 18 months of services, Mother had failed (according to the social worker) to meet her case plan objectives to: maintain a relationship with the children by following the conditions of the visitation plan; meet the childrens physical, emotional, medical, and educational needs; develop positive support systems with friends and family; show her ability to understand her childrens feelings and give emotional support; consistently, appropriately, and adequately parent the children; show that she accepts responsibility for her actions; show her ability and willingness to have custody of the children; and obtain resources to meet the needs of the children and provide a safe home. Mother did not consistently attend scheduled visits, and when she did, she did not interact with the children as a parent. Despite therapy sessions to resolve the childrens fears, the children declared that they did not wish to live with Mother. Such evidence, which was unchallenged and unrebutted by Mother, provides sufficient evidence to support the courts detriment finding.

III. DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] CFS was formerly known as the San Bernardino County Department of Childrens Services.

^[3] The children, through counsel, filed a brief urg[ing] this court to affirm the judgment terminating Mothers parental rights.

^[4] Ordinarily, claims of error occurring at the hearing setting the section 366.26 hearing must be asserted, if at all, by a timely petition for an extraordinary writ. ( 366.26, subd. (l)(2); In re Harmony B. (2005) 125 Cal.App.4th 831, 838.) Failure to seek review by such means generally bars review by appeal. ( 366.26, subd. (l); In re Cathina W. (1998) 68 Cal.App.4th 716, 719.) However, when the trial court fails to advise a parent of the writ petition requirement, that parent is relieved of the requirement and can challenge such orders on appeal after the section 366.26 hearing. (In reHarmonyB., supra, at p. 838.) As CFS concedes, because Mother was not informed of her writ rights at the 18-month hearing, this exception applies here and Mother may assert claims arising from that hearing on appeal.

^[5] Minors counsel filed a brief stating that he joins in and adopts CFSs legal analysis; but not the conclusion that Mother forfeited appeal rights by submitting at the 18-month review . . . .

^[6] Section 366.21, subdivision (e), for example, provides: At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.

^[7] The P.C. court did not explicitly discuss whether the mother had been informed of her right to file a petition for an extraordinary writ following the 18-month hearing or whether she had waived or forfeited her right to challenge the findings made at that hearing. By addressing the correctness of such findings, it appears that the mother in that case did not waive or forfeit such arguments.