In re A.T.
Filed 5/22/13 In re A.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.T., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
T.T. et al.,
Defendants and Appellants.
E057084
(Super.Ct.No. RIJ120430)
OPINION
APPEAL from the Superior
Court of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art. VI,
§ 21.) Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant T.T.
Jacob I. Olson, under appointment by the Court of
Appeal, for Defendant and Appellant S.C.
Pamela J. Walls, County
Counsel, and Anna M. Deckert,
Deputy County Counsel, for Plaintiff and Respondent.
T.T. (the father) and S.C. (the mother) appeal
from an order terminating parental rights
to their daughter, A.T. (sometimes the child), who is now four years old. The father contends that the Department of
Public Social Services (the Department) failed to give him due notice of the
proceedings and failed to carry out a reasonably diligent search for him. The mother joins in the father’s arguments.
Parental rights were not terminated until 10
months after the father — having become aware of the proceedings somehow —
appeared and received appointed counsel.
His counsel told the juvenile court that she was considering asserting
lack of notice. Nevertheless, she did
not actually raise this issue, and she did not object to termination of
parental rights on this ground. We
therefore conclude that it has been forfeited.
I
FACTUAL AND PROCEDURAL
BACKGROUND
The mother, her daughter A.T., and her son D.J.
lived with the mother’s eight siblings and their mother (the maternal
grandmother) in Moreno Valley.
In September 2010, the mother went to Las
Vegas, taking D.J. (who was then four months old) with
her, but leaving behind A.T. (who was then almost two years old) with the
maternal grandmother. While the mother
was gone, the police executed a search
warrant at the home, based on information that one of the mother’s siblings
was selling drugs.
title="">[1]
As a result of the raid, it was discovered that
the water to the home had been shut off, perhaps as much as three weeks earlier,
due to nonpayment of the bill. The
toilets were not working. There was no
water to wash or cook with. Also, the
refrigerator was not working, and the food inside was spoiled.
Some of the minor siblings reported that the
adult siblings “physically fight sometimes.â€
They also reported that the mother smoked marijuana.
The maternal grandmother was arrested on an
outstanding misdemeanor warrant; as a result, she was no longer able to care
for A.T. A.T. was detained and placed
outside the home.
The next day, the mother phoned the social
worker. She identified the father as
A.T.’s biological father.
name="_ftnref2" title="">[2] Apparently she provided his birth date. According to the social worker, however, she
“was not able to provide enough information on the father[] for the Department
to submit a Parent or Prison Locator.â€
The Department then filed a
D.J.
The mother returned from Las
Vegas with D.J. in time to appear at the detention
hearing. D.J. was detained and placed
along with A.T.
In November 2010, the social worker asked the
mother once again about the father. The
mother said that, when she told him that she was pregnant with D.J., he “left,â€
and she had not heard from him since. She denied knowing his current
whereabouts. She stated that he had not
provided any support for the children.
The social worker also asked the maternal
grandmother about the father. She said
that she did not know his whereabouts.
The social worker checked with the local jails but found no records
regarding the father. The social worker
did not do anything else to find the father; she did not check Department of
Motor Vehicle records, telephone directories, child support records, welfare
records, or prison records.
name="_ftnref3" title="">[3]
In November 2010, at the
jurisdictional/dispositional hearing, the father was not present. The juvenile court found that notice had been
given as required by law. It declared the
children dependents based on failure to protect (Welf. & Inst. Code,
§ 300, subd. (b)) and, as to their alleged fathers only, failure to
support (id., subd. (g)). It formally removed them from their parents’
custody. The juvenile court denied
reunification services for the father on the ground that his whereabouts were
unknown. (Welf. & Inst. Code,
§ 361.5, subd. (b)(1).)
Sometime in or before May 2011, the social worker
learned (apparently from the mother) that the father was living in Moreno
Valley.
with him and that she had told him to call the social worker. However, he had not done so.
In May 2011, at the six-month review hearing, the
father was not present. The juvenile
court once again found that notice had been given as required by law.
In July 2011, the social worker asked that the
paternal grandmother in Riverside
be evaluated as a possible placement.
The social worker misidentified her as a paternal aunt and did not
explain how she was located.
In September 2011, the mother was arrested and
incarcerated for aggravated assault.
In November 2011, at the 12-month review hearing,
the father was personally present in court for the first time. Counsel was appointed for him.
The father’s counsel requested a continuance so
that she could familiarize herself with the case. However, she indicated that, after doing so,
she would probably be filing a petition under Welfare and Institutions Code
section 388 (section 388) requesting reunification services for the father. The juvenile court indicated that, if she did
file a section 388 petition, it would set it for hearing on the same day as the
continued 12-month review hearing.
The father’s counsel also requested visitation
for him. She stated, “He has been having
visits. It’s not noted in the social
worker’s report, but he has been.†The
father confirmed this, stating, “I have been at every visit until [the mother]
was incarcerated.†The court allowed him
to have weekly visitation.
A social worker’s report dated May 2012 stated
that the father had not requested any visits since November 2011. Inconsistently, however, it also noted that
he had had at least one visit in December 2011.
In January 2012, at the continued 12-month review
hearing, the juvenile court terminated the mother’s reunification services and
set a Welfare and Institutions Code section 366.26 (section 366.26)
hearing. The Department indicated that
it was still recommending setting a section 366.26 hearing because “[t]he
father . . . has come forward a little too late and the kids have
been in the system over a year before he has come forward to state that he may
be the father of the child.†The
father’s counsel had not filed a section 388 petition and did not object.
In March 2012, the mother was convicted of
aggravated assault and sentenced to five years in prison.
In September 2012, at the section 366.26 hearing,
the father’s counsel stated: “As you can
see the children know their father . . . . He has always been there for both the
children. He was never given services
because he wasn’t present at the current detention hearing.
“However, during that period of time, he always
visited. The social worker always knew
that he was visiting and was part of these children’s lives. So we’re asking at this time that the
recommendation not be followed; that perhaps legal guardianship would be the
better solution due to the fact that there is a bond between father and the
children.
“Father is attempting to get into parenting
classes. He has his own place, and he
would really like a chance down the road to be a part of the lives of his
children.â€
The father’s counsel still had not filed a
section 388 petition. She did not argue
that the father had not been given proper notice of any of the proceedings, and
she did not argue that he had been improperly denied reunification services.
The juvenile court found that the children were
adoptable and that there was no applicable exception to termination. It therefore terminated parental rights.
II
THE FATHER FORFEITED THE
CLAIMED LACK OF NOTICE
The father contends that the proceedings at the
jurisdictional/dispositional and six-month review hearings violated due process
because the Department had not carried out a reasonably diligent search for
him.
The Department does not even attempt to argue
that it did make a reasonably diligent search.
However, it does argue that the father forfeited any defect in the
notice given him by failing to raise the issue below. We agree.
“‘A party forfeits the right to claim error as
grounds for reversal on appeal when he or she fails to raise the objection in
the trial court. [Citations.] Forfeiture, also referred to as “waiver,â€
applies in juvenile dependency litigation and is intended to prevent a party
from standing by silently until the conclusion of the proceedings. [Citations.]’
[Citation.]†(
191 Cal.App.4th 676, 686.)
“[A] party waives all jurisdictional objections
to a proceeding, including lack of notice, by opposing or resisting the
proceeding on its merits.
[Citations.]†(
Cal.App.4th 1194, 1199.) Even a lack of
notice that would otherwise be a due process violation can be forfeited by
failure to raise it below, as long there has been an opportunity to do so. (People
v. Marchand (2002) 98 Cal.App.4th 1056, 1060; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1491.)
The waiver rule need not be applied when it would
be “fundamentally unfair.†(In re
A.C. (2008) 166 Cal.App.4th 146, 156.)
However, that is hardly the case here.
As soon as the father did appear, he was given appointed counsel. His counsel could have filed a section 388
petition seeking to obtain reunification services for him; indeed, she
indicated that she was considering doing so, but she evidently decided not to.
The father argues that we should not apply the
waiver rule because he was not represented by counsel “when the notice errors
were made . . . .â€
This conveniently ignores the fact that he was represented by counsel after
the claimed errors occurred and that his counsel had some 10 months in which to
raise these errors, by way of a section 388 petition or otherwise, before
parental rights were ultimately terminated.
The father also argues that filing a section 388
petition would have been futile because, even if there was a due process
violation, the juvenile court could not have granted the petition unless it
also found that extending the reunification period would be in the best
interest of the child. He cites
181. There, however, the appellate court
rejected the father’s due process claim not only because he failed to show that
extending the reunification period would be in the best interest of the child (
because it found that the asserted due process violation was harmless beyond a
reasonable doubt; the father was incarcerated, and he was not scheduled to be
released until more than a year after the statutory maximum reunification
period ended (id. at
pp. 192-193). Here, by contrast,
the father claims that the due process violation was prejudicial. There is no reason to suppose that the
juvenile court would not have entertained this claim under section 388.
In any event, we need not decide whether a
section 388 petition was the proper procedural vehicle for the father’s due
process claim. We are convinced that the
father could still have raised his due process claim in some form — it was not too late.
(See In re B.G. (1974) 11
Cal.3d 679, 688-689 [before depriving a parent of the companionship, care,
custody, and management of his children, the state must afford him or her
adequate notice and an opportunity to be heard].) Given the exigencies of dependency
proceedings, it would be absurd to suppose that the father had no remedy
and that his only remedy comes later,
on appeal. Quite the contrary — the onus
was on him to raise his due process claim below at the earliest possible
opportunity.
As the Department notes, In re P.A. (2007) 155 Cal.App.4th 1197 is squarely on point. There, the social services agency had not
completed a declaration of due diligence for the father. (Id.
at pp. 1200-1201.) Nevertheless, at
the jurisdictional/dispositional hearing, the juvenile court denied reunification
services for the father on the ground that his whereabouts were unknown. (Id.
at p. 1201.) After the juvenile
court set a section 366.26 hearing (P.A.,
at p. 1202.) His counsel indicated
that he was going to file a section 388 petition but never did. (P.A.,
at pp. 1202, 1206.) At the section
366.26 hearing, his counsel objected to termination of parental rights, but not
based on lack of notice. (
On appeal, the father argued that the juvenile
court had erred by denying reunification services in the absence of a completed
declaration of due diligence. (
notice of the jurisdictional/dispositional hearing violated due process. (Id.
at p. 1208.) The appellate court
held: “Because defective notice and the
consequences flowing from it may easily be corrected if promptly raised in the
juvenile court, [the father] has forfeited the right to raise these issues on
appeal. [Citations.]†(Id.
at pp. 1209-1210.)
The father also argued that “the waiver rule is
not enforced when it conflicts with due process . . . .†(In re
P.A., supra, 155 Cal.App.4th at
p. 1210.) The appellate court
responded: “Here, [the father]’s
persistent avoidance of responsibility for [the child] and his failure to seek
any relief in the juvenile court persuades us the forfeiture rule is
appropriately applied in this case. To
remand the matter now to permit [the father] to file a section 388 petition he
previously declined to file would achieve no purpose other than to delay
permanence for [the child], a result we cannot countenance on this
record.†(Ibid.) The identical
reasoning applies here.
We conclude that, even if the juvenile court and
the Department erred by not ensuring that there was a more diligent search for
the father, the error is not grounds for reversal.
III
THE FATHER FORFEITED THE
CONTENTION THAT THERE WAS
INSUFFICIENT EVIDENCE THAT HIS
WHEREABOUTS WERE UNKNOWN
The father also contends that there was
insufficient evidence that his whereabouts were unknown to support the order
denying him reunification services and hence insufficient evidence to support
termination of parental rights.
This is really the same argument that we already
rejected in part II, ante, dressed up
in the guise of insufficiency of the evidence in the hope of avoiding
forfeiture. This effort fails.
At the jurisdictional/dispositional hearing,
before the juvenile court could deny the father reunification services, it had
to find that his whereabouts were unknown.
(Welf. & Inst. Code, § 361.5, subd. (b)(1).) However, it is too late to challenge the
sufficiency of the evidence to support that finding. “‘“An appeal from the most recent order
entered in a dependency matter may not challenge prior orders, for which the
statutory time for filing an appeal has passed.â€â€™ [Citation.]
‘[A]n unappealed disposition or postdisposition order is final and
binding and may not be attacked on an appeal from a later appealable
order.’ [Citation.]†(In re
Liliana S. (2004) 115 Cal.App.4th 585, 589.) “Such a limitation is necessary to promote
finality and expedition of decisions concerning children and their interests in
securing stable homes. [Citation.]†(Dwayne P.
v. Superior Court (2002) 103 Cal.App.4th 247, 259.)
We recognize that this rule cannot be enforced
when it conflicts with due process. (
682.) “Relaxation of the . . .
rule is appropriate when an error ‘fundamentally undermine[s] the statutory
scheme so that the parent would have been kept from availing himself or herself
of the protections afforded by the scheme as a whole.’ [Citation.]â€
(Ibid.) The father, however, we repeat (see part II,
appointed counsel) and ample opportunity to challenge the order denying
reunification services below. He was
afforded the necessary protections; he simply failed to avail himself of them.
Finally, at the section 366.26 hearing, the
juvenile court merely had to find that it had previously denied reunification services on the ground that the
father’s whereabouts were unknown.
(Welf. & Inst. Code, § 366.26, subd. (c)(1).) There was plainly sufficient evidence of
this.
IV
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting
P. J.
We concur:
KING
J.
MILLER
J.
title="">[1] The father claims that no drugs were
actually found. That is not entirely
clear. The social worker’s report does
not say whether drugs were found or not, but it does say that the sibling
suspected of selling drugs was arrested.
title="">[2] Actually, the mother identified the
father as the biological father of both children. The maternal grandmother, however, identified
a different man as D.J.’s biological father.
Paternity tests eventually confirmed that the father was the biological
father of A.T. but not of D.J. Thus,
D.J. is not a party to this appeal.
