In re S.F.

Filed 2/19/10 In re S.F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. James A. Edwards, Judge. Dismissed.

Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

Appellant M. C. (mother) is the mother of S.F. (child), who was nine years old at the time mother filed this appeal. Mother challenges the juvenile courts visitation orders issued April 9 and May 7, 2009, which included the provision that S.F. not be forced to visit with mother. Specifically, mother argues the juvenile court impermissibly delegated its authority over visitation to the child when it allowed the child to refuse visits with mother, thus violating mothers due process right to litigate to establish the parent-child benefit exception to adoption at the later Welfare and Institutions Code section 366.26^[1]hearing held on September 15, 2009. As discussed below, we conclude that mother waived her right to appeal the issue by failing to timely raise the issue by appeal or in a petition for extraordinary writ.

Summary of Facts and Procedure

A.     Removal

The child and three siblings^[2],[3]were removed from their mothers care in February 2005, when the child was five years old. At the time of the immediate response referral, mother and her four young children were living in the home of mothers 18-year-old son. The back door of the home was not in place and the backyard was covered with garbage, broken furniture, clothes, doors and wooden materials from the home such that the ground could not be seen. The home contained no food whatsoever and was filled with trash, clothing and bottles of alcohol. The home was crawling with bugs such that the investigators had to shake the bugs from their hair and shoulders. The home was apparently used as a gathering place for gang members, as the walls were covered with spray painted gang monikers and pornography. Although mother claimed that the family went out to eat every day, the children stated they had not eaten all day, and it was late afternoon. Mother had entered into Voluntary Family Maintenance with CFS in November of 2004 after a substantiated referral for neglect in October 2004. However, mother had done little that was asked of her, including enrolling the children in school. The children had missed the last two months of school. The children were taken into custody.

B.     Detention

The detention hearing was held on February 24, 2005. S.F. was ordered detained and the juvenile court ordered weekly supervised visitation.

C.     Jurisdiction/Disposition

The jurisdiction and disposition hearing was held on June 14, 2005. At that time mother had visited S.F. only once since his removal in February and had no telephone calls with S.F. since May 6. Mother had also failed to participate in her service plan. The juvenile court found S.F. to be a dependent. The court denied reunification services to S.F.s father (father) because father was incarcerated for four years and would not be released until June 2007, which exceeded the reunification period. The court added to mothers service plan an order to cooperate in a psychological evaluation. The court ordered weekly supervised visitation between S.F. and mother.

D.    Six-Month Status Review

At the six-month status review hearing held on January 20, 2006, the juvenile court terminated reunification services for mother and set a section 366.26 hearing. Mother was to continue having supervised weekly visitation. S.F. had been placed with his paternal aunt and uncle since April 2005. He had stabilized in this placement, but was sad when his mother missed her visits with him. Mother missed more than half her visits with S.F. since the dependency began, and disappeared completely for two months.

E.     Section 366.26 Proceedings

At a June 16, 2006, pretrial settlement conference for the section 366.26 hearing, mother did not oppose guardianship with the paternal aunt and uncle. CFS agreed with this arrangement because the paternal aunt and uncle did not want to adopt S.F. just yet. S.F.s father would be released from prison in June 2007 and they wanted to give father the chance to reunite with S.F.

F.      Permanency Planning Review

At the permanency planning review (PPR) hearing scheduled for January 12, 2007, mother objected to dismissing the dependency and asked for weekly visitation. The guardian acknowledged that mother and S.F. had been having weekly visits but stated that the visits had been hard on S.F. and that his teacher had noticed the visits had affected his behavior in school. The court warned mother that if she pushed for a hearing on the visitation issue, the court might have to make a finding of detriment and end visitation altogether. The hearing was continued to January 25, 2007. At that time, with mothers agreement, the juvenile court dismissed the dependency. The court authorized mother to have monthly visits with S.F. supervised by the guardians. Father had been having telephone contact with S.F. from prison, and the court authorized that to continue once every two weeks, with monthly supervised visits upon fathers release.

G.    Guardians Section 388 Petition

On September 11, 2008, the paternal aunt filed a section 388 petition asking to terminate the guardianship. The guardians were divorcing and the aunt could no longer care for S.F., along with her other children, without the uncles assistance. The aunt asked that S.F. be placed with his biological parents, because father had been released from prison in June 2007 and had married mother. In a response to the petition filed on October 17, 2008, DFS recommended S.F. not be placed with mother and father because father had been sent back to prison on a parole violation (possession of a controlled substance) for at least one year. In addition, mother was pregnant again and, with the arrest of father for drug possession and the presence of the adult son, the social worker did not believe mother was capable of giving S.F. the stable home he needed. Finally, S.F. apparently had been interested in living with father, but did not indicate any such interest toward mother. The juvenile court reinstated the dependency for the purpose of the section 388 petition and reappointed all counsel.

The hearing on the guardians section 388 petition was held on November 7, 2008. S.F. had remained with the aunt in the meantime, and the aunt agreed to keep S.F. until another placement could be found. Mothers counsel asked for twice monthly visits and stated that mother had not been allowed a monthly visit for the last four months. The social worker replied that the visits had caused great havok [sic] with the guardian in terms of family. He comes back with very negative behaviors. In response, the juvenile court ordered once monthly visits supervised by DFS and gave DFS the authority to liberalize visitation as appropriate. The court terminated the guardianship in the best interest of the child and directed DFS to find S.F. another placement.

H.    Second Detention and Jurisdiction

CFS filed a section 387 petition asking that S.F. be placed in a suitable foster home. At the detention hearing held on February 20, 2009, the parties and the juvenile court agreed to waive the jurisdiction/disposition hearing. The court ordered S.F. removed from his paternal aunt and placed in foster care. The court also ordered supervised monthly visitation for mother, with mother to contact the social worker at least 24 hours in advance.

I.        Mothers Section 388 Petition and the First Challenged Visitation Order

On March 10, 2009, mother filed a section 388 petition asking the juvenile court to reinstate her reunification services and to increase visitation to once per week. In its response filed April 9, 2009, DFS reported that mother had not visited S.F. at all between November 2008 and March 2009, and in fact had not visited with S.F. since May 18, 2008. Mother had made two separate requests to visit in December, but had followed up on neither. Mother made another request in March 2009. The attempted visit and a subsequent attempted telephone call are described in the DFS response.

On or about March 25, 2009 the foster mother^[4]transported the child to the [DFS] office and the child refused to get out of the car and appeared to be almost paralyzed with fear and could not talk. The [social worker] advised the child that he would not be forced to get out of the car. He was aware that he would not be by himself and that his Foster Family Agency Social Worker would be at the visit to supervise. He could not bring himself to move as evidenced by his lack of movement and inability to speak. Again on April 7, 2009 the [social worker] attempted to get the child to talk to his mother on the phone in which a three way call was arranged. The mother said hello and [S.F.] gave the phone to his foster mother stating he did not want to talk to her. He refused to return to the phone.

The hearing on the section 388 petition was to be held on April 9, 2009. At that time mother asked to withdraw the petition because she does recognize that right now [S.F.] is probably a little fragile. Counsel for CFS asked for a compromise with mothers counsel that the child not be forced to visit if he still maintains this fear. The juvenile court then declared the section 388 petition moot and made the following order. Nevertheless, there is a pre-existing order; am I correct, once monthly visits? Ill order that, that be in a therapeutic setting. But that the child is not to be forced to visit mother. But we would ask the Department use their best offices to facilit[ate] that monthly visit in a therapeutic setting.

J.       Second PPR and the Second Challenged Visitation Order

The juvenile court held a permanency planning review hearing on May 7, 2009. Mother was not initially present. The court found that the permanent plan should be modified from planned permanent living arrangement to the goal of adoption. The court found that it would be in S.F.s best interest to consider terminating mothers parental rights and freeing him for adoption. The court set a section 366.26 hearing. The court continued visitation as follows. Parental visitation by the mother be once a month in therapeutic setting. The child has previously demonstrated a resistance to visits with the mother. The social worker is asked to use best efforts to facilitate those visits in a therapeutic setting. Of course the child cannot be forced to attend and should not be. Mother arrived at the end of the hearing. The court then advised mother of its rulings and of her right to file a petition for extraordinary writ under California Rules of Court, rule 8.450.^[5]Mother did not file a writ petition. Counsel for father filed a non-issue writ on June 15, 2009.

K.    Second Section 366.26 Hearing

The section 366.26 hearing was held on September 15, 2009. Mother testified that she had not seen S.F. since May 2008 because the paternal aunt had cancelled visitation and would not accept mothers phone calls. She stated that she thought it would be in S.F.s best interest to remain in long term foster care and to continue to have contact with her. On cross-examination, mother admitted that she had not seen S.F. because he does not want to see her, even in a therapeutic setting. Counsel for S.F. stated that My client has a great deal of fear and anxiety in regard to mother. He has repeatedly told myself and the social worker . . . that he has no desire to see mother. She also commented that S.F. had settled into his prospective adoptive home more than I really thought he would and asked that he be freed for adoption. At the end of the hearing, the juvenile court terminated mothers parental rights and set adoption as S.F.s permanent plan. This appeal followed.

Discussion

Mother challenges the visitation orders made at two separate hearings, in which the juvenile court allowed S.F. to refuse visits with mother. The court issued the first order on April 9, 2009, at the hearing on mothers section 388 petition, which petition mother withdrew because she recognized S.F.s emotional fragility. The court issued the second order on May 7, 2009, at the permanency planning review hearing at which it changed the goal for S.F. to adoption and set a section 366.26 hearing. At this hearing the juvenile court also personally explained to mother her right to challenge this and preceding orders using the writ procedure set forth in rule 8.450. As discussed below, we conclude that mother waived her right to appeal the issue by failing to raise the issue early by appeal or in a petition for extraordinary writ.

Waiver

Mother cannot challenge the two visitation orders entered prior to the section 366.26 hearing because she did not appeal them or seek writ review. She therefore is foreclosed from raising such a challenge in this appeal. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-1160; 395 and 366.26, subd. (l); rules 5.600, 8.400(d)(1), 8.450.)^[6]

We acknowledge that the waiver rule is unenforceable if due process forbids it. (In re Janee J. (1999) 74 Cal.App.4th 198, 208.) However, due process is implicated only if mother shows: (1) there was a defect in the proceedings that fundamentally undermined the statutory scheme so as to prevent her from availing herself of the protections afforded by the scheme as a whole; and (2) the defect was not merely an error that might have been held reversible had it been timely reviewed. (Id. at pp. 208-209.) Mother has not established either of these factors.

Regarding the first factor, it is not reasonable to believe that mother could have had any chance of success at all in arguing the parental bond exception to the presumption for adoption, even if the juvenile court had forced S.F. to visit with her against his will from April 9, 2009, when it made the first challenged visitation order, until the section 366.26 hearing on September 15, 2009. Given mothers failure to regularly visit with S.F. in the prior four years after he was removed from her custody and the devastating emotional effect this had on S.F., and given S.F.s extreme reaction to attempts to have him visit with mother more recently, mother cannot seriously argue that she had any chance, at all, of convincing the juvenile court that she had either maintained regular contact with S.F. or that continued contact would be in his best interest.

Second, mother has not established that any error in not forcing S.F. to visit with her against his will, so late in the re-established dependency, and especially after S.F. had spent a large portion of his life wondering whether mother would appear for visits, is more than simple reversible error.

Disposition

Mother waived her right to challenge the two visitation orders by failing to timely contest them by writ or appeal, and therefore this appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

KING

J.

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

^[2] Only S.F. is the subject of this appeal.

^[3] Mother gave birth to another child in April 2005. That child was also removed from mothers care and is not a subject of this appeal.

^[4] S.F. had been placed in a new foster home on February 5, 2009.

^[5] All further rule references are to the California Rules of Court unless otherwise indicated.

^[6] Dependency appeals are governed by section 395, which provides in relevant part: A judgment in a proceeding under [s]ection 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment . . . . [] This statute makes the dispositional order in a dependency proceeding the appealable judgment. [Citation.] Therefore, all subsequent orders are directly appealable without limitation, except for post-1994 orders setting a .26 hearing when the circumstances specified in section 366.26, subdivision (l), exist. [Citations.] A consequence of 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.] (In re Meranda P., supra, 56 Cal.App.4th at pp. 1149-1150.)