In re B.L.
Filed
1/16/13 In re B.L. 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NOT TO BE
PUBLISHED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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
(Placer)
----
In re B.L. et al., Persons Coming Under the
Juvenile Court Law.
PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Plaintiff
and Respondent,
v.
W. L.,
Defendant
and Appellant.
C071165
(Super. Ct.
Nos. 53001808, 53001809)
W.L. (father) appeals from the
juvenile court’s orders denying his petitions to change existing orders ( ADDIN BA xc <@ost>
xl 18 s AOORZY000013 xpl 1 l "Welf. & Inst. Code" Welf. & Inst. Code,
AOORZY000015 l "§ 388" § 388) and terminating
his parental rights as to minors Blake L. (Blake) and Paige L. (Paige). ( ADDIN BA xc <@osdv>
xl 8 s AOORZY000016 xpl 1 l "§ 366.26" § 366.26.) He contends that: 1) the juvenile court improperly delegated
discretion to the minors as to whether visitation would occur; and 2) the court
failed to advise him of his constitutional rights during the jurisdictional hearing and thus violated his
As we will explain, because father’s
arguments are unsupported by the record and his claims are not cognizable on
appeal at this stage in the process, we shall affirm the orders of the juvenile
court.
FACTUAL AND PROCEDURAL BACKGROUND
The earliest document in the clerk’s
transcript was filed approximately a year and a half after these proceedings
began. Although we are able to glean the
proceedings’ prior history from social workers’ subsequent reports, we only
detail that small portion of the history of this case which is relevant to
disposition of the issues on appeal.
Through Termination of Parents’ Services
County Department of Health and Human Services (the Department) filed ADDIN BA xc <@osdv> xl 11 s
AOORZY000017 l "section 300" section 300 petitions to
remove Blake (born in August 1999) and Paige (born in October 2004) from the
custody of their legal guardian, alleging that he and his roommate had
physically abused the minors. The
Department further alleged in amended petitions that mother knew of the abuse
and failed to protect the minors, and that father had a continuing 14-year
history of methamphetamine abuse, which rendered him incapable of caring for the
minors.
The juvenile court held a
on March 25, 2010, April 23, 2010, and April
29, 2010.
At the March 25, 2010 hearing, father made his first court
appearance, with counsel. The juvenile
court advised father of his constitutional rights; father said he understood them.
Counsel acknowledged receipt of the amended petition, waived its
reading, stipulated that father had been advised of his rights, and entered a
denial of the petition.
At the April 23, 2010 jurisdiction/disposition hearing, the court
noted that the second amended ADDIN BA xc <@$osdv> xl 11 s
AOORZY000017 section 300 petition had
just been filed and verified that all parties had received it. The court terminated the minors’ legal
guardianship. In mother’s absence, her
counsel acknowledged receipt of the new petition, waived its reading,
stipulated that she had been previously advised of her rights, and re-entered
her original denial. Father was present
with counsel; after mother’s counsel was heard and re-entered her denial,
father’s counsel said, “All the same†and entered a denial of the new petition
on father’s behalf. The court continued
the hearing to April 29, 2010.
At the continued
jurisdiction/disposition hearing on April 29, 2010, father was present and
submitted on the Department’s report as to the issue of jurisdiction. The court sustained the allegations of the
second amended ADDIN BA xc <@$osdv> xl 11 s
AOORZY000017 section 300 petition and
made certain findings.
minors removed from their parents’ custody and that the Department provide both
parents with reunification services.
Although, as described
transcript of the April 29, 2010 hearing clearly informs that the parents
order of that hearing did not contain any information concerning “Admissions/Submissions.†Instead, apparently in error, it failed to
include any information relating to
the parents’ advisement and waiver of rights or submission on jurisdiction.
At the 12-month review hearing on
July 22, 2011, the juvenile court terminated the parents’ services and set a
selection and implementation hearing for November 18, 2011.
Details of Father’s Visitation
The November 2, 2011, selection
and implementation report recommended the termination of parental rights and
the minors’ adoption by their current foster parents.
The report described father’s
visitation history with both minors in detail.
Father had consistently visited the minors once a week throughout 2010,
leading to the November order for unsupervised visits. Thereafter, however, he began testing
positive for methamphetamine and was arrested in January and jailed on a parole
violation, causing the court to change the visitation order to supervised
visits only. After his release, in
February 2011 he appeared for a scheduled visit but refused to test before
visiting, and left the visit before it began.
He was re-arrested in March 2011.
The record is unclear as to how long he was in custody after the March
arrest; by June 2011 he was in a treatment facility, and asked to visit the minors. The Department arranged a visit in June; by
that time, due to his repeated periods of incarceration, treatment, and lapsed
contact with the Department, father had not visited with his children for
nearly four months.
After father’s June 2011 visit with
both minors, Paige indicated she did not want to visit father again. During July 2011, Blake visited father, but
Paige refused. In August, Blake visited
with father multiple times and Paige once.
In September, both minors visited multiple times with father, although
the Department received information from the foster parents that Paige was
consistently experiencing night terrors immediately before her scheduled visits
with father. In October, father visited multiple
times with Blake in a supervised setting and twice with Paige in a therapeutic
setting.
First ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 Section 388 Petition
On November 14, 2011, father filed a
ADDIN BA xc <@$osdv>
xl 11 s AOORZY000015 section 388 petition requesting the reinstatement
of services. He alleged he was now clean and sober, attended AA/NA meetings and
drug counseling, regularly tested negative for drugs, had not missed any recent
visits, was in a stable and loving relationship, and had a home for the minors. The Department opposed the petition. At a hearing held on November 18, the court
reset both the ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petition and
the selection and implementation hearings for February 1, 2012.
Second ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 Section 388 Petition
On February 1, 2012, father filed a
second ADDIN BA xc <@$osdv>
xl 11 s AOORZY000015 section 388 petition, requesting that the
juvenile court vacate the underlying jurisdiction and disposition orders. Relying only on minute orders filed on April
29, 2010, the date of the consolidated jurisdiction/disposition hearing, he
asserted that as to the operative ADDIN BA xc <@$osdv> xl 11 s
AOORZY000017 section 300 petitions he
was not properly advised of his rights, did not waive those rights, and did not
validly submit to jurisdiction. The
Department opposed the petition.
ADDIN BA xc <@reg> xl 32 s
AOORZY000002 l "Ruling on the
Second Section 388" Ruling on
the Second Section 388 Petition
The juvenile court held consolidated
ADDIN BA xc <@osdv>
xl 26 s AOORZY000018 l "section 388/section 366.26" section 388/section 366.26
hearings from March 14, 2012, to May 4, 2012.
The court first addressed and denied
father’s second ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petition. After reviewing the reporter’s transcripts
from the relevant dates, offered by the Department, and hearing the parties’
arguments, the court ruled that: 1) It did not have jurisdiction to entertain the
petition because the jurisdiction/disposition hearing occurred more than 23
months before and the orders made then had not changed; 2)
Father had not shown that his request to vacate those orders was
justified by a change of circumstance or that vacating the orders would be in
the minors’ best interest;
AOORZY000003 l "rule 5.682(f)" rule 5.682(f) at the final
jurisdictional hearing on April 29, 2010, was harmless. Father was fully advised of his
constitutional rights at the first jurisdictional hearing on March 25,
2010. At the next jurisdictional
hearing, on April 23, 2010, father’s counsel informally but unequivocally
acknowledged that father had received the second amended ADDIN BA xc <@$osdv> xl 11 s
AOORZY000017 section 300 petition, had
waived an explanation of its allegations, and had been previously advised of
his constitutional rights. On April 29, 2010,
father elected to submit on the second amended petition, knowing his rights and
having fully discussed the matter with counsel.
Finally, father could not show prejudice because the court still found
the allegations of the second amended ADDIN BA xc <@$osdv> xl 11 s
AOORZY000017 section 300 petition true
and father received a year of reunification services after the
jurisdiction/disposition hearing.
ADDIN BA xc <@reg> xl 31 s
AOORZY000004 l "Ruling on the First
Section 388" Ruling on the First Section 388 Petition
The juvenile court then considered
father’s first ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petition. After hearing testimony from four witnesses,
including father and social worker Susan Baumeister, the court denied the petition. The court found that although father had made
efforts to deal with his substance abuse problem, he had not made such
significant and consistent recent progress as to prove changed circumstances. Furthermore, he had not shown that
reinstating reunification services would be in the minors’ best interest
because the minors currently did not want even therapeutic visitation and
father did not have a parental relationship with either of them.
Ruling on the Selection and
Implementation Hearing
After hearing further testimony from
father and Baumeister, as well as two additional witnesses, the juvenile court
terminated father’s parental rights and ordered a permanent plan of adoption
for the minors. Construing father’s
assertion that the Department and court had impermissibly interfered with his
parental rights by restricting visitation as an attempt by father to assert the
beneficial parental relationship exception to adoption, the court found that
father had failed to prove regular and consistent visitation and contact with
the minors, adding that they appeared to have “lost faith in [father] and have
just moved on in their lives.†The court
also found that father had not played a parental role as to Blake for most of
his life and had never done so as to Paige.
Because of this lack of parent-child relationship between father and his
children, the juvenile court found that the benefit of that relationship did
not outweigh the benefit the minors would gain from a permanent adoptive home
and terminated father’s parental rights as to both minors.
DISCUSSION
I
Visitation
whether visits occur to a third person.â€
Under this heading, father asserts that the court’s visitation orders improperly
gave the minors the power to decide whether he could visit them.
This argument is not consistent with
the subject of father’s appeal--the denial of his ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petitions and
the order terminating his parental rights.
sustain visitation orders as part of its denial of father’s ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petitions.
So far as father asserts that the
juvenile court failed to enforce visitation orders by requiring the minors to
attend visits, he fails to show that he requested any timely relief (e.g., by
filing a ADDIN BA xc <@$osdv>
xl 11 s AOORZY000015 xpl 1 section 388 petition seeking strengthened
visitation orders or the enforcement of existing orders). That fact distinguishes this case from ADDIN BA xc <@cs> xl 43 s
AOORZY000005 xhfl Rep l "In re
Hunter F.
relies. In that case, after complaining
for over two years that the juvenile court failed to enforce visitation orders
against the unwilling minor, the mother filed a ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petition
seeking to vacate a permanency planning hearing and to reinstate reunification
services “to allow her to actually partake of visitation she had been granted
but never received.†( ADDIN BA xc <@$cs>
xl 58 s AOORZY000005 xhfl Rep xpl 1 In re Hunter F., supra, 142 Cal.App.4th at pp. 1505-1506 &
fn. 5.) Here, father does not cite
to anything in the record showing that he objected to the orders regarding
visitation about which he now complains, and neither of his ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petitions
raised any issues as to visitation--to the contrary, his first petition alleged
that he had not missed any recent visits.
Finally, father fails to show how
any possible error in restricting visitation could justify reversing the orders
from which he appeals. To the extent
that we stretch to read his briefing to argue that the juvenile court erred in
declining to find the beneficial parental relationship exception to adoption
applied (presumably because the juvenile court itself caused the situation that
frustrated his establishing regular visitation), father does not (and cannot)
show the benefit of his parental relationship with his children outweighed
their interest in a permanent adoptive home.
We see no error.
II
Jurisdictional Finding
juvenile court’s failure to advise him of his constitutional rights before
making its jurisdictional finding in April 2010 violated his right to due
process. Although sporadically couched
as an appeal from the denial of father’s second ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petition, by
raising this contention father improperly seeks to appeal the juvenile court’s
jurisdictional finding and dispositional order, which have long since become
final.
In a juvenile
is the judgment for purposes of appeal.
( ADDIN BA xc <@osdv> xl 5 s AOORZY000019 xpl 1 l
"§ 395" § 395; ADDIN BA xc <@cs> xl 56 s
AOORZY000006 xhfl Rep xpl 1 l "In
re Meranda P.,
The
jurisdictional finding is not separately appealable, but may be reviewed on an
appeal from the dispositional order. ( ADDIN BA xc <@cs>
xl 48 s AOORZY000007 xhfl Rep xpl 1 l "In re Candida S.
AOORZY000008 xhfl Rep xpl 1 l "In
re Jennifer V.
AOORZY000019 Section 395 provides in
pertinent part that: “A judgment in a
proceeding under ADDIN BA xc <@$osdv> xl 11 s
AOORZY000017 Section 300 may be appealed
in the same manner as any final judgment, and any subsequent order may be
appealed as an order after judgment.†( ADDIN BA xc <@osdv>
xl 19 s AOORZY000020 xpl 1 l "§ 395, subd. (a)(1)" § 395, subd.
(a)(1).) “‘“A consequence of ADDIN BA xc <@$osdv> xl 11 s
AOORZY000019 section 395 is that an
unappealed disposition or postdisposition order is final and binding and may
not be attacked on an appeal from a later appealable order.†[Citations.]’†( ADDIN BA xc <@cs>
xl 37 s AOORZY000009 xhfl Rep xpl 1 l "In re S.B.
In general, the
dependency case is 60 days from the date of the order’s pronouncement in open
court. ( ADDIN BA xc <@cs>
xl 53 s AOORZY000010 xhfl Rep xpl 1 l "In re Alyssa H.
order, the issues determined by the order are res judicata. ( ADDIN BA xc <@cs>
xl 42 s AOORZY000011 xhfl Rep xpl 1 l "In re Matthew C.
dispositional order.
In his opening brief, father does
not address timeliness, but cites ADDIN BA xc <@osdv> xl 11 s
AOORZY000021 l "section 385" section 385, which
provides: “Any order made by the court
in the case of any person subject to its jurisdiction may at any time be
changed, modified, or set aside, as the judge deems meet and proper, subject to
such procedural requirements as are imposed by this article.†(See also ADDIN BA xc <@cs> xl 69 s
AOORZY000012 xhfl Rep xpl 1 l "Nicholas
F. v. Superior Court
& fn. 16.) Even if we assume without
deciding that ADDIN BA xc <@$osdv> xl 11 s
AOORZY000021 section 385 authorized
father to challenge the jurisdictional and dispositional orders
became final, as we have explained ante,
ADDIN BA xc <@$osdv>
xl 11 s AOORZY000019 section 395 bars him from challenging those
orders on an appeal from later, appealable orders. ( ADDIN BA xc <@$cs>
xl 39 s AOORZY000009 xhfl Rep xpl 1 In re S.B., supra, 46 Cal.4th at p. 532)
In his reply brief, father cites ADDIN BA xc <@$osdv> xl 11 s
AOORZY000019 section 395, as we have
appeal the denial of his ADDIN BA xc <@$osdv> xl 11 s
AOORZY000015 section 388 petition
wherein he challenged the jurisdictional finding. But, despite father’s argument to the
contrary, ADDIN BA xc <@osdv>
xl 13 s AOORZY000022 l "section 395’s" section 395’s language
providing for the appeal of a judgment in a proceeding under ADDIN BA xc <@$osdv> xl 11 s
AOORZY000017 section 300 “in the same
manner as any final judgment†does not confer on father the ability to appeal
dependency judgments and orders in
perpetuity, long after they have become final. (See ADDIN BA xc <@$cs> xl 39 s
AOORZY000009 xhfl Rep xpl 1 In re
S.B., supra, 46 Cal.4th at p. 532; ADDIN BA xc <@$cs> xl 44 s
AOORZY000011 xhfl Rep xpl 1 In re
Matthew C., supra, 6 Cal.4th at p. 393.) With his challenge to the denial of his
petition, he seeks to do just that. He
failed to allege in the juvenile court, and cannot credibly allege on appeal,
that his jurisdictional challenge below was justified by a change of
circumstance or that vacating the jurisdictional orders would be in the minors’
best interests--instead he outlines the procedural errors he alleges were
committed by the juvenile court during the jurisdiction/disposition proceedings
and then argues only that the alleged procedural error “jeopardized father’s
parental rights.†We decline to address
his untimely challenge to the juvenile court’s orders at the
jurisdiction/disposition hearing.
DISPOSITION
court are affirmed.
DUARTE , J.
We
concur:
HULL , Acting P. J.
MURRAY ,
J.
name="_ftn1" title="">[1] Further undesignated
statutory references are to the ADDIN BA xc <@ost> xl 29 s
AOORZY000014 l "Welfare and Institutions Code" Welfare
and Institutions Code.
name="_ftn2" title="">[2] ADDIN BA xc <@ru> xl 40 s
AOORZY000001 l "California Rules of Court, rule 5.682(f)" California
Rules of Court, rule 5.682(f) (further undesignated rule references are to the
California Rules of Court), which governs jurisdiction hearings in juvenile
dependency proceedings, provides:
“After
admission, plea of no contest, or submission, the court must make the following
findings noted in the order of the court:
“(1)
Notice has been given as required by law;
“(2)
The birthdate and county of residence of the child;
“(3)
The parent or guardian has knowingly and intelligently waived the right to a
trial on the issues by the court, the right to assert the privilege against
self-incrimination, and the right to confront and to cross-examine adverse
witnesses and to use the process of the court to compel the attendance of
witnesses on the parent or guardian’s behalf;
“(4)
The parent or guardian understands the nature of the conduct alleged in the
petition and the possible consequences of an admission, plea of no contest, or
submission;
“(5)
The admission, plea of no contest, or submission by the parent or guardian is
freely and voluntarily made;
“(6)
There is a factual basis for the parent or guardian’s admission;
“(7)
Those allegations of the petition as admitted are true as alleged; and
“(8)
The child is described under one or more specific subdivisions of ADDIN BA xc <@$osdv> xl 11 s AOORZY000017
section
300.â€
The
juvenile court made findings (1), (2), (7), and (8) on the record, but did not
expressly make findings (3) through (6).
