Filed 12/20/17 In re E.T. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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K.S., mother of the minor E.T., appeals the juvenile court’s order terminating parental rights pursuant to Welfare and Institutions Code sections 366.26 and 395.[1] Mother contends the juvenile court erred in terminating her parental rights because the Sacramento County Department of Health and Human Services (Department) failed to provide her and the minor’s siblings with adequate visitation, thus preventing her from asserting the beneficial parental relationship and sibling relationship exceptions to the permanent plan of adoption (§ 366.26, subds. (c)(1)(B)(i) & (c)(1)(B)(v)). Finding mother forfeited her claim on appeal, we affirm the juvenile court’s order.

I. BACKGROUND

In light of our determination that mother forfeited her claim, we need not set forth a detailed recitation of the facts and instead limit our summary to facts related to visitation and relevant procedural background.

The minor, E.T. (born June 2001), was removed from mother’s custody on January 19, 2014, after the minor’s sibling, C.T. (born November 1999), suffered non-accidental injuries, including fingernail scratches to his cheek, multiple bites to his left elbow, and injuries to his upper lip and nose resulting in profuse bleeding, as a result of a physical attack by mother on C.T. while in the presence of E.T. Another sibling, F.S. (born October 2005), was also present in the home at the time of the attack. Mother was arrested and charged with felony willful cruelty to a child resulting in injury or possible death (Pen. Code, § 273a, subd. (a)) as a result of the attack on C.T.

On January 22, 2014, the Department filed a dependency petition alleging the minor came within section 300, subdivisions (a) and (j). The petition alleged mother physically abused the minor’s sibling, C.T., placing the minor at substantial risk of physical abuse and/or harm. It was further alleged that the minor and F.S. were at substantial risk of physical abuse or harm inflicted non-accidentally due to the fact that the incident of physical violence by mother against C.T. occurred in the presence of the minor and F.S. The Department filed similar dependency petitions on behalf of C.T. and F.S.[2]

At the January 23, 2014, detention hearing, the juvenile court ordered the minor and C.T. detained and placed in the home of the legal guardians, but released F.S. to mother’s care. The court further ordered reunification services to mother and mental health services for the minor and C.T., and issued an order for observed visitation between mother and the minor and C.T.

The jurisdiction/disposition report stated the minor visited with F.S. and C.T. once a week. Due to the distance between mother’s home and the legal guardians’ home, mother wanted visitation once a week for two hours with the minor and C.T. According to mother, the minor wanted to have visitation separate from C.T. The Department recommended that the court sustain the allegations in the petition, continue the minor and C.T. in their current out-of-home placement, provide services to mother, and order regular visitation between mother and the minor.

On April 4, 2014, at the pre-jurisdictional hearing, the court sustained the allegations as to the minor and C.T., declared the children dependents of the juvenile court, continued out-of-home placement of the minor and C.T., and ordered reunification services to mother and regular visitation between mother and the minor and C.T.

Mother had weekly unsupervised overnight visitation with the minor. She reported that the minor “can be challenging during the visits, as he likes to be in control, but that she will not engage when this occurs.” During visitation, the minor was able to see F.S. and C.T. The legal guardians reported that the minor became upset, closed off, angry, and disrespectful almost every week on the day or two prior to and after his visits with mother.

At the November 7, 2014, six-month status review hearing, the court determined mother’s progress toward alleviating or mitigating the issues leading to removal was “significant” and mother had regularly and consistently contacted and visited the minor and C.T. The court continued the minor as a dependent of the juvenile court and continued services to mother. With regard to visitation, the court ordered mother “shall have regular visitation with the [minor and C.T.], consistent with the [minors’] well-being,” and that the Department “shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, and whether the visits are supervised and who supervises them.” The court gave the Department discretion to determine if and when to begin unsupervised overnight and weekend visits, adding that the Department “may consider the [minors’] desires in its administration of the visits, but the [minors] shall not be given the option to consent to, or refuse, future visits.”

According to the permanency review report filed April 8, 2015, the minor began extended weekend visits with mother on November 7, 2014. On November 27, 2014, he went to his weekend visits with mother and had an altercation with his younger sister, F.S., which started with the children slapping each other with cool whip and escalated into the minor putting his hands around F.S.’s neck. Mother called the police. The minor was cited for the incident, released back to the legal guardians, and ordered to complete 20 hours of community service. During a subsequent visit with mother, the minor destroyed the master bedroom and threw several objects at mother while she was holding her nondependent infant daughter, H. Thereafter, since December 2014, the minor refused visits with mother, stating he did not want to return to mother’s care and wanted the legal guardians to pursue guardianship or adoption of him. Mother stated that, while she wanted the minor and C.T. returned to her care, she understood the minor did not want to be returned to her and stated she “cannot manage their behaviors at this time.” The minor had not visited with mother since the end of November 2014 and maintained mother did not wish to visit him.

The Department recommended the court find a substantial risk of detriment in returning the minor to mother, terminate reunification services to mother, and set the matter for a permanency planning hearing. It was further recommended that the minor and C.T. not be placed together or have contact with each other, and that mother “shall have regular visitation with the [minor], consistent with the [minor’s] well-being,” and the Department “shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, and whether the visits are supervised and who supervises them.”

At the hearing on May 1, 2015, the court terminated mother’s reunification services as to the minor and set the matter for a section 366.26 hearing. The court reiterated its prior order that mother “shall have regular visitation with the [minor], consistent with the [minor’s] well-being,” and that the Department “shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, and whether the visits are supervised and who supervises them.” The court again gave the Department discretion to determine if and when to begin unsupervised overnight and weekend visits, adding that the Department “may consider the [minor’s] desires in its administration of the visits, but the [minor] shall not be given the option to consent to, or refuse, future visits.” The court also found it would be beneficial to maintain contact between the minor and his siblings, but inappropriate to place the minor with C.T.

The August 28, 2015, selection and implementation report stated mother and the minor had two visits, once on November 27, 2014, for Thanksgiving, and again on June 4, 2015, for the minor’s eighth grade graduation. Mother reportedly came late to the graduation and attempted to leave early before it was over, but the minor chased her down and initiated a brief conversation with her. The minor had anxiety around visiting mother, which included wetting the bed the night he learned mother planned on attending his graduation. During a July 22, 2015, visit with the social worker, the minor stated he did not want any further contact with mother “because he felt uncomfortable and like he had to watch his back.” He stated that, after visits with mother, he “becomes very angry.” According to the legal guardians, the minor “was like a different person after seeing his mother in June 2015” and “[h]is angry and aggressive behavior took approximately two months to get under control.”

The minor was visiting C.T. approximately once a month and was allowed to have telephone contact with C.T. without restriction. On July 22, 2015, the minor stated he enjoyed the visits with his brother and was open to telephone contact. Mother’s contact with the minor was characterized as “sporadic at best” and “usually in response to [the minor] making a request to see her.” The minor had seen his mother only twice in the past nine months. Following his encounter with his mother in June 2015, he no longer wanted contact with her.

The subsequent December 11, 2015, selection and implementation report stated that, following the minor’s July 22, 2015, visit with the social worker, the minor “vacillated over the decision whether or not to visit with his mother” and stated that, in addition to his own concerns, he reportedly felt some pressure from the legal guardians not to visit.

On October 21, 2015, mother began calling the Department to request visits with the minor and stated that, during telephone conversations with the minor, he had been asking to visit with her and his siblings. The social worker attempted to reach the minor by telephone numerous times beginning October 30, 2015, and was finally able to speak privately with him on November 10, 2015, at which time the minor stated he did want to visit with mother and his siblings.

On November 29, 2015, the minor had a supervised visit with mother, and his siblings C.T. and H. Mother was reportedly on time and appropriate and she and the minor interacted appropriately and appeared comfortable with each other.

On December 7, 2015, the minor stated he would be comfortable with twice monthly visits with mother. The Department authorized those visits the following day and the social worker and mother started the process of arranging two visits for December 2015.

The minor visited with C.T. and H. on November 29, 2015, and was scheduled to continue twice monthly visits with mother and all three siblings going forward. He maintained bi-weekly visits with mother and regular telephone contact with his siblings and his previous legal guardians, with whom he maintained a significant relationship.

The Department recommended the court continue the minor as a dependent child of the juvenile court and implement a permanent plan of placement with the minor’s current caregiver with the goal of independent living. It was further recommended that visitation remain as previously ordered.

The addendum report filed January 11, 2016, stated the Department was making no recommended changes to the existing visitation orders, noting mother was granted once monthly visits which were quickly increased to twice monthly “based on the quality of the mother’s initial visit in November 2015 and [the minor’s] request to increase the visits to twice monthly.”

Initial Hearing (§ 387); Selection and Implementation Hearing (§ 366.26)

At the hearing on January 12, 2016, minor’s counsel informed the court that the minor “has been visiting with his mom and siblings, and those are going great, and he looks forward to having more visits and longer visits in the near future.” Mother’s counsel informed the court that mother had increased visits to weekly supervised visits with the minor and was “hoping for better visits and longer visits with her son and the siblings.”

The court found termination of parental rights would be detrimental to the minor because the minor “is 12 years or older and objects to termination of parental rights.” The court ordered the minor remain a dependent of the juvenile court and be committed to the care and custody of the Department for suitable planning, placement, and supervision, and that visitation remain as previously ordered.

On April 27, 2016, mother filed a request to change the juvenile court’s January 12, 2016, order (§ 388) arguing the minor should be placed with her because she had completed her case plan services and unsupervised visits with the minor were occurring without incident.

The Department filed an addendum report in response to mother’s request. According to the report, a team decision-making meeting was held on June 10, 2016, during which the minor expressed his wish to return to the care of his prior legal guardian, P.P. (who participated in the meeting via telephone), whom he referred to as his “grandparent,” until his 18th birthday. The minor also stated he wanted no contact with mother “at this time” but wanted regular contact with his siblings. Mother was in agreement with the minor going to P.P.’s home and was willing to respect the minor’s request that there be no visitation between mother and the minor. At the conclusion of the team decision-making meeting, it was determined the minor would transition from the receiving home to P.P.’s home. Mother agreed that family reunification services would be closed if the minor were placed with P.P. Visitation between the minor and his siblings was to be arranged by the Department. In light of the agreed upon plan, the Department no longer supported return of the minor to mother.

Following a hearing on June 14, 2016, the juvenile court denied mother’s section 388 request, finding there was no change in circumstances or new evidence presented and the request was not in the best interest of the minor.

The post-permanency review report filed June 17, 2016, reported mother had consistent visitation with the minor from January through May 2016. Overnight visits were approved on April 12, 2016, and extended weekend visits began several days later. Although the visits reportedly went well, mother reported on May 12, 2016, that she was leaving home to attend a family court hearing for F.S. in Sacramento and the minor refused to leave the home with her. He returned to Children’s Receiving Home on May 14, 2016.

On June 2, 2016, the minor refused to visit with mother over his birthday weekend but requested to visit with the legal guardians. An extended visit with the legal guardians from June 6, 2016, to June 9, 2016, reportedly went well, and the minor’s visitation with the legal guardians was scheduled for every weekend from Thursday to Sunday.

The Department reported that the minor stated he wanted no contact with mother but would like to have sibling visits. The Department also reported it would be assisting in scheduling the sibling visitation as often as necessary, and would continuously assess the parent visitation if the minor wanted to resume visits with mother in the future.

The minor expressed a desire to be placed with the legal guardians and attend school on a regular basis. He also expressed a willingness to maintain the connection with his biological family despite that he did not wish to return to mother’s care. Mother noted she would support the minor’s decision as long as he could stay in a stable placement and establish a healthy relationship with his caregivers.

On June 28, 2016, minor’s counsel informed the court that the minor was “very much . . . looking forward to being able to live with [the legal guardians] he considers his grandmas as soon as possible. He’s enjoying overnight visits with them.” Counsel also informed the court that the minor did not want to have visits or contact with mother. Minor’s counsel otherwise submitted, as did mother’s counsel. The court found by a preponderance of evidence that return of the minor to mother’s custody would create a substantial risk of detriment to his safety, protection, physical, and emotional well-being. The court further found by clear and convincing evidence that a hearing under section 366.26 was not in the minor’s best interest. The court continued the minor as a dependent child, committed him to the care and custody of the Department, and ordered a permanent plan of placement with the legal guardians. The court made additional findings, including that the minor had no desire to return to mother’s care, he wished to return to the legal guardians’ care or be placed in a foster home, and he was receiving mental health services to help him manage his anger and improve his coping skills. The court also continued the existing visitation order without modification.

On August 26, 2016, the social worker filed a request to change the court’s June 28, 2016, order (§ 388) requesting that the court place the minor with the legal guardians on an extended visit pending kinship approval to provide the minor with a stable home not in a group home setting. The juvenile court granted the social worker’s request and authorized an extended visit with the legal guardians not to exceed 29 days.

According to the December 2, 2016, report, the minor was placed with the legal guardians on August 23, 2016, and was adjusting well. He stated he was much happier and more relaxed since leaving the CRH. He had no contact with mother and had not maintained contact with his siblings. The report stated the minor wished to have no contact with mother but stated he would like to have sibling visits, although he had not requested any as of the date of the report. The minor also expressed his desire to be adopted by the legal guardians, explaining he was happy living in their home and was treated like one of their family. The legal guardians stated they wanted whatever was best for the minor, whether that be legal guardianship or adoption. They stated they were willing to provide the minor with stable placement and noted continued wraparound services were vital to the minor’s mental health.

The report noted mother had not maintained contact with the social worker or the Department. The Department assessed the risk of returning the minor to mother as “high” given the concern for mother’s ability to manage the minor’s behaviors while dealing with three other children or to keep the minor safe when the minor or C.T. were having a hard time. It was noted that, in June 2016, mother rescinded her section 388 motion (filed April 27, 2016) requesting return of the minor to her custody. Based thereon, and on the minor’s visitation wishes, the Department recommended a permanent plan of adoption by the legal guardians.

Mother did not attend the December 13, 2016, post-permanency review hearing. The court adopted the Department’s recommended findings and orders, continued the minor as a dependent of the juvenile court, committed him to the care and custody of the Department for placement and, over the objection of mother’s counsel, set the matter for a permanent plan hearing (§ 366.26).

The April 11, 2017, selection and implementation report stated that, since December 2016, the minor had had no contact with mother and did not wish to have contact with her, and mother had not contacted the Department to request visits. The legal guardians reported the minor became frustrated when asked about visits with mother and expressed that he did not want to see his mother or his sisters. The legal guardians told the social worker they supported the minor’s decision and would not arrange or facilitate visits between the minor and mother given mother’s history of becoming violent and confrontational with them, but would be open to a third party arranging and facilitating visits should the minor change his mind. The minor reportedly had not had any contact with his siblings either, but stated he would be open to telephone contact with C.T.

The minor stated he wanted to be adopted by the legal guardians and felt he was ready to do so, but seemed to “shut down” when talking about the impending adoption. The legal guardians noted that, while the minor seemed ready to be adopted, he struggled with not reunifying with mother and being adopted.

The minor was reportedly well adjusted to his placement with the legal guardians who, despite the minor’s emotional challenges, were committed to providing permanency through adoption. The Department recommended a permanent plan of adoption, noting the minor did not have an ongoing relationship with mother such that termination of parental rights would cause him significant emotional harm.

Mother did not appear at the April 11, 2017, selection and implementation hearing. Without making any additional argument, mother’s counsel objected to termination of parental rights and adoption. The court found, by a preponderance of evidence, that return of the minor to mother’s custody would create a substantial risk of detriment to the minor’s safety, protection, physical, or emotional well-being. In finding the minor was likely to be adopted, the court noted it had considered the minor’s wishes and was acting in his best interest. The court further found termination of parental rights would not be detrimental to the minor and a permanent plan of adoption was appropriate. Noting that C.T. lived in a group home, his sisters lived with mother and the minor wanted no contact with mother, the court found it would not be appropriate to place minor with his siblings. The court adopted the remaining findings and orders as recommended by the Department. Over mother’s objection, the court ordered no visitation between mother and the minor based on the termination of parental rights and the minor’s wishes. However, the court noted that, if the minor wished to meet with mother in the future he could do so “on his own” but the court would not order him to do so.

Mother filed a timely notice of appeal.

II. DISCUSSION

In mother’s sole claim on appeal, she contends the juvenile court erred in terminating her parental rights over the minor because the Department’s failure to provide her and the minor’s siblings with adequate visitation prevented her from asserting the beneficial parental relationship exception and sibling relationship exception to the permanent plan of adoption (§ 366.26, subds. (c)(1)(B)(i) & (c)(1)(B)(v)).

The Department argues mother forfeited her claim by failing to raise the issue in the juvenile court or to make any request for relief, and failed to file the required petition for an extraordinary writ to challenge the juvenile court’s order setting the section 366.26 hearing in the first instance. Even assuming mother did not forfeit her claim, the Department argues, the claim nonetheless fails because mother failed to establish that either the beneficial parental relationship exception or the sibling relationship exception, or any other exception to adoptability, applied.

As we explain, we agree mother forfeited her claim on appeal.

An order setting the section 366.26 hearing is not an appealable order; it can be reviewed only by a writ petition. (In re Athena P. (2002) 103 Cal.App.4th 617, 624-625.) The failure to take a writ from a nonappealable order forfeits any challenge to that order, except if the juvenile court fails to advise a parent of the writ petition requirement. (Id. at p. 625.) In that case, the parent generally has good cause to be relieved of the requirement. (Ibid.)

When a juvenile court orders a hearing pursuant to section 366.26, it is obligated to advise the parties of the writ requirement. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.590, subd. (b).) If a party is present at the hearing at which the section 366.26 hearing is set, the court must orally advise the party of the writ requirement; if the party is not present, the writ advisement must be mailed by first class mail to that person’s last known address. (§ 366.26, subd. (l)(3)(A).)

Here, mother was present at the May 1, 2015, hearing at which the juvenile court set the matter for a selection and implementation hearing pursuant to section 366.26. While the record does not include the reporter’s transcript of the hearing, it does include the court’s written order stating that “[t]he Court has advised mother of the requirement of filing a writ petition.” Mother does not claim otherwise. The record also includes written notice, from the juvenile court clerk to mother, of the impending section 366.26 hearing and the requirement that a writ petition be filed in order to “preserve any right to review on appeal” the court’s order. Although mother was not present at the section 366.26 hearing, mother’s counsel confirmed mother “was personally served on January 24, 2017,” with notice of the hearing. “The ‘burden is on the parent in a juvenile dependency case to pursue his or her appellate rights.’ [Citations.]” (In re Cathina W. (1998) 68 Cal.App.4th 716, 723.) Mother failed to file a writ petition.

In any event, the juvenile court has no sua sponte duty to determine whether an exception to adoption applies. (E.g., In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Rather, the parent has the burden of proving an exception applies. (Ibid.; In re C.F. (2011) 193 Cal.App.4th 549, 553.) Failure to raise a statutory exception to adoption forfeits the issue on appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Daisy D. (2006) 144 Cal.App.4th 287, 291-292; In re S.B. (2004) 32 Cal.4th 1287, 1293.) Here, it was mother’s burden to prove the beneficial parental relationship exception and/or the sibling relationship exception applied. Since neither she nor her counsel mentioned or argued for the application of either exception at any time, we conclude the issue was not raised in the juvenile court and mother’s claim is therefore forfeited.

III. DISPOSITION

The juvenile court’s order is affirmed.

/S/

RENNER, J.

We concur:

/S/

HULL, Acting P. J.

/S/

ROBIE, J.