Filed 3/1/18 In re K.P. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re K.P., a Person Coming Under the Juvenile Court Law. H045170
(Santa Cruz County
Super. Ct. No. 17JU00238)

SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,

Plaintiff and Respondent,

v.

A.P.,

Defendant and Appellant.

The Santa Cruz County Human Services Department (Department) filed a juvenile dependency petition on behalf of K.P. shortly after her birth. (Welf. & Inst. Code, § 300, subd. (b)(1) (failure to protect).) At the jurisdiction/disposition hearing, the juvenile court removed K.P. from the custody of her mother, A.P. (mother), and declared K.P. a dependent child of the court. It also appointed K.P.’s counsel to serve as an educational rights holder, sharing educational rights as to K.P. with mother.
Mother appeals (§ 395, subd. (a)(1)), challenging the juvenile court’s order regarding educational rights. Mother argues that the court abused its discretion and unnecessarily interfered with her constitutional rights as a parent. More specifically, mother asserts (1) that K.P.’s counsel cannot be a holder of educational rights because counsel “has a conflict of interest in the case,” (2) that the governing statute does not contemplate a parent and a nonparent jointly holding educational rights, and (3) that it was unnecessary to limit mother’s educational rights because by the time of disposition she was taking her medication, participating in services, and attending substance abuse treatment.
We reverse the court’s educational rights order, concluding that it had no authority to appoint a co-holder of educational rights to share decision-making as to educational and developmental services with mother.
I
Procedural History
On August 9, 2017, a juvenile dependency petition was filed under section 300, subdivision (b)(1), on behalf of K.P. The petition alleged the following facts. Mother suffered from “unstable and/or untreated mental health issues,” which included but were not necessarily limited to Bipolar Disorder, that negatively impacted her ability to provide safe and appropriate care for K.P. Mother’s mental health issues caused her “to behave in a combative, volatile and erratic manner.” On or about July 31, 2017, mother “went into the hospital while in labor but would not cooperate with medical staff which necessitated that they give her general anesthesia to deliver her daughter.” K.P. “was born medically fragile at three pounds and stopped breathing for approximately ten minutes.” She might “be suffering from Down’s Syndrome.” Mother left the hospital against medical advice. Mother was later arrested for committing battery on a peace officer after throwing a rock at an officer. Mother’s “unstable and/or untreated mental health issues place[d] her newborn, medically fragile daughter, [K.P.] at substantial risk of serious physical harm.”
The petition also alleged the following facts as to mother’s substance abuse. Mother abused controlled substances, including but not necessarily limited to methamphetamine, and alcohol, and her substance abuse “negatively impact[ed] her ability to provide safe and appropriate care for her daughter, [K.P.]” Mother had “a long history of substance abuse,” and she had “used methamphetamine and alcohol while pregnant with the minor.” Mother’s substance abuse and failure to receive prenatal care placed K.P. at substantial risk of serious physical harm.
In addition, the petition alleged the following facts concerning K.P.’s alleged father, N.B. N.B. abused controlled substances, including but not necessarily limited to methamphetamine and alcohol. His substance abuse impacted his ability to provide safe and appropriate care for K.P. N.B. was “unable and/or unwilling to provide the minor, [K.P.] with her basic needs or protect her from the behavior of her mother.” N.B. wanted “paternity testing to ensure that he [was] in fact [K.P.’s] father,” but he “declined to test for the Department.” N.B. was “not in a position to care for [K.P.] full time,” which placed K.P. “at substantial risk of harm and/or neglect.”
The jurisdiction/disposition report disclosed, among other information, that K.P. was born with Down’s Syndrome and had several heart defects. K.P. weighed “just three pounds” at birth, and she “stopped breathing on her own for approximately 10 minutes which required resuscitation.” At the hospital, mother was combative with medical staff. “At the time of delivery, [she] presented as agitated and combative.” “Mother was given general anesthesia and gave birth via cesarean section.”
According to the jurisdiction/disposition report, mother had “a mental health diagnosis of Bipolar Disorder and reportedly stopped taking her Lithium medication sometime between September and December 2016.” Mother had not obtained any prenatal care. During her pregnancy, mother “used marijuana and smoked cigarettes.” “Mother tested positive for THC at the time of delivery,” but she claimed that she had been in “recovery from methamphetamine for three months.” A hospital social worker reported that K.P.’s umbilical cord tested positive for marijuana. N.B. believed that mother had “used methamphetamine and marijuana throughout the pregnancy.” In 2015, mother had tested positive for opiates at the hospital.
The report indicated that, following K.P.’s birth, “mother left the hospital against medical advice and was arrested later that same day in Boulder Creek for acting erratically at passing drivers and assaulting a police officer.” Several days later, mother was arrested “for throwing a rock at a California Highway Patrol officer on Highway 9,” and she was brought to the hospital for medical clearance before being transported to jail. She was “very dirty and not wearing shoes,” and she was not lucid. Mother’s “speech pattern was difficult to follow,” and “[h]er answers were tangential and nonsensical.” At the time the report was written, mother was in “the Santa Cruz County Jail on charges of petty theft, vandalism, and resisting arrest.”
The report stated that K.P. had an upcoming occupational therapy appointment, that the California Children Services Program was “assessing the need for further services,” and that a referral would “be made to the San Andreas Regional Center on her behalf.” It reported that K.P.’s “developmental status will continue to be monitored throughout the duration of the dependency.” As to her educational status, the report stated that K.P. was “an infant and therefore [she was] not enrolled in school.”
A contested jurisdiction/disposition hearing was held on October 13, 2017. The juvenile court admitted the jurisdiction/disposition report and attachments into evidence, subject to the objections of mother’s counsel. Mother’s counsel introduced four exhibits into evidence and called mother to testify. Counsel for K.P. did not present any evidence.
Following the presentation of evidence and argument at the hearing, the juvenile court found that the allegations of the petition were true, and that K.P. was a person described by section 300, subdivision (b). The court removed K.P. from parental custody and declared her a dependent child of the court. It ordered reunification services for mother. The court ordered mother to undergo two psychological or psychiatric evaluations to assess the mother’s capacity to parent and her capacity to utilize reunification services.
During the jurisdiction/disposition hearing, the Department’s counsel had asked the court to grant “shared” educational rights to Georgina Dews, K.P.’s counsel, for the interim and to order a CASA (Court Appointed Special Advocate) “so that a CASA may be able to ultimately step in as a shared ed rights holder.” Dews reiterated that her appointment would be shared and temporary and that she would “step back” once a CASA stepped in. The court found it in K.P.’s best interest to have mother share education rights with Dews, K.P.’s court-appointed attorney. The court referred the case to the CASA program. The court did not use Form JV-535, entitled “Order Designating Educational Rights Holder,” which the Judicial Council has adopted for mandatory use.
II
Discussion
A. Governing Law
“In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent . . . and shall by its order clearly and specifically set forth all those limitations. Any limitation on the right of the parent or guardian to make educational or developmental services decisions for the child shall be specifically addressed in the court order. The limitations may not exceed those necessary to protect the child.” (§ 361, subd. (a)(1), italics added.)
“If the court specifically limits the right of the parent . . . to make educational or developmental services decisions for the child . . . , the court shall at the same time appoint a responsible adult to make educational or developmental services decisions for the child.” (§ 361, subd. (a)(1), italics added.) If the juvenile court limits a parent’s educational rights, the court “must follow the procedures in rules 5.649-5.651.” (Cal. Rules of Court, rule 5.695(b)(3).)
“ ‘Educational rights holder’ means the adult identified or appointed by the court to make educational or developmental-services decisions for a child . . . .” (Rule 5.502(13).) “The court must identify the educational rights holder for the child on form JV-535 at each hearing in a dependency . . . proceeding. Unless his or her rights have been limited by the court . . . , the parent or guardian holds the educational and developmental-services decisionmaking rights for his or her child.” (Rule 5.649.)
“At the dispositional hearing and at all subsequent hearings [that might affect the child’s education or receipt of developmental services], the court must: [¶] (A) Consider and determine whether the child’s . . . educational, physical, mental health, and developmental needs, including any need for special education and related services, are being met; [¶] (B) Identify the educational rights holder on form JV-535; and [¶] (C) Direct the rights holder to take all appropriate steps to ensure that the child’s . . . educational and developmental needs are met.” (Rule 5.651(b)(2).) “At the dispositional hearing and each subsequent review or permanency hearing, the court must determine whether the rights of a parent . . . to make educational or developmental-services decisions for the child should be limited. [¶] If necessary to protect a child who is adjudged a dependent . . . of the court under section 300 . . . , the court may limit a parent’s . . . rights to make educational or developmental-services decisions for the child by making appropriate, specific orders on Order Designating Educational Rights Holder (form JV-535).” (Rule 5.649(a).)
“If the court limits, even temporarily, the rights of a parent or guardian to make educational or developmental-services decisions for a child under rule 5.649, the court must immediately proceed under rule 5.650 to appoint a responsible adult as educational rights holder for the child.” (Rule 5.534(f)(1).) “Whenever it limits, even temporarily, the rights of a parent or guardian to make educational or developmental-services decisions for a child, the court must use form JV-535 to appoint a responsible adult as educational rights holder . . . .” (Rule 5.650(a).)
“A court-appointed educational rights holder is responsible for protecting the child’s rights and interests with respect to educational or developmental services, including any special education and related services.” (Advisory Com. com., 23 pt. 2 West’s Ann. Codes, Court Rules (2017 ed.) foll. rule 5.650, p.749.) An appointed education rights holder must act in the child’s best interest. (See § 361, subd. (a)(6); Rule 5.650(f)(3)(A) & (D); In re Samuel G. (2009) 174 Cal.App.4th 502, 510-511.) The educational rights holder’s term of service terminates if “[t]he rights of the parent or guardian to make educational or developmental-services decisions for the child are fully restored.” (Rule 5.650(g)(1)(B).)
When appointing an educational rights holder, the juvenile court must “determine whether a responsible adult relative, nonrelative extended family member, or other adult known to the child is available and willing to serve as the educational rights holder and, if one of those adults is available and willing to serve, should consider appointing that person before appointing or temporarily appointing a responsible adult not known to the child.” (Rule 5.650(c)(1).) “An individual who would have a conflict of interest in representing the child . . . shall not be appointed to make educational or developmental services decisions. For purposes of this section, ‘an individual who would have a conflict of interest’ means a person having any interests that might restrict or bias his or her ability to make educational or developmental services decisions, including, but not limited to, those conflicts of interest prohibited by Section 1126 of the Government Code, and the receipt of compensation or attorney’s fees for the provision of services pursuant to this section.” (§ 361, subd. (a)(2), italics added.)
At each status review hearing after the disposition hearing, the court’s review must determine “[w]hether there should be any limitation on the right of the parent or guardian to make educational decisions or developmental services decisions for the child.” (§ 366, subd. (a)(1)(C).) Any limitations must “be specifically addressed in the court order and may not exceed those necessary to protect the child.” (Ibid.) “Whenever the court specifically limits the right of the parent or guardian to make educational decisions or developmental services decisions for the child, the court shall at the same time appoint a responsible adult to make educational decisions or developmental services decisions for the child pursuant to Section 361.” (Ibid.)
Courts “review the juvenile court’s order limiting parents’ educational rights under an abuse of discretion standard [citation], bearing in mind ‘[t]he focus of dependency proceedings is on the child, not the parent’ [citation].” (In re R.W. (2009) 172 Cal.App.4th 1268, 1277.)
B. Failure to Preserve Claims for Appellate Review
The Department argues that mother forfeited the issue of the propriety of the juvenile court’s education rights order by failing to object below.
“ ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. omitted.) “[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. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, (S.B.) fn. omitted.) “Dependency matters are not exempt from this [forfeiture] rule. [Citations.]” (Ibid.)
“In general, forfeiture of a claim not raised in the trial court by a party has not precluded review of the claim by an appellate court in the exercise of that court’s discretion. [Citations.] Thus, an appellate court may review a forfeited claim--and ‘[w]hether or not it should do so is entrusted to its discretion.’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) But “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations]” (S.B., supra, 32 Cal.4th at p. 1293.) “Although an appellate court’s discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters. ‘Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.’ [Citation.] Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. (§ 366.26.)” (Ibid.)
It is undisputed that mother’s counsel did not object when the Department’s counsel asked the court to appoint K.P.’s counsel as a holder of educational rights, along with mother, or when the court made its order. She simply said in that regard, “I just want to give the brochures regarding educational rights and CASA to the mother.” Since there was no objection, the Department did not have any reason to develop the factual record supporting its request. Under these circumstances, we conclude that the mother failed to preserve the claims being raised on appeal.
Nevertheless, we exercise our discretion to reach a purely legal issue of statutory construction, namely whether section 361 and the implementing court rules permit a juvenile court to appoint a co-holder of educational rights to share decision-making with a parent.
C. Educational Rights Holder
Mother asserts that the court’s appointment of a nonparental, co-holder of educational rights interferes with her constitutional right to make educational and developmental decisions regarding K.P. The Department argues that “the statutory scheme does not preclude such an arrangement.” It contends that language in section 361, subdivision (a)(1), which states that “[t]he limitations may not exceed those necessary to protect the child,” “supports the appointment of joint holders of educational and developmental rights.” The Department maintains that the court’s order was appropriate because it was “unclear when [mother’s] mental health will clear,” and it suggests “shared rights” allow mother “to be as included [in decisions] as she is able to be, while allowing for ever increasing responsibility, as her mental health clears, without having to come back to court.” We are not persuaded by those arguments.
“[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Troxel v. Granville (2000) 530 U.S. 57, 66.) “More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), [the United States Supreme Court] held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), [the court] again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control.’ ” (Id. at p. 65.)
“Even after a dependency finding has been made, the statutory scheme is designed to allow retention of parental rights to the greatest degree consistent with the child’s safety and welfare . . . . Thus, the juvenile court may limit the parent’s . . . supervision and control of the child in specified ways (§§ 361, subd. (a), 362) . . . .” (In re Ethan C. (2012) 54 Cal.4th 610, 625.)
The Department has not cited any provision in the Welfare and Institutions Code, the court rules, or the mandatory judicial counsel form JV-535 that explicitly provides for the appointment of a co-holder to somehow share decision-making regarding educational or developmental services with a parent. We do not see any ambiguous language in section 361 or the implementing court rules that might be construed as permitting such shared decision-making if a parent is not capable of independently meeting the child’s needs for educational and developmental services.
Consistent with a parent’s constitutional right to make educational decisions and other decisions regarding their children’s care, section 361 provides that any limitations placed on the right of the parent to make educational or developmental services decisions for the child “may not exceed those necessary to protect the child.” (§ 361, subd. (a)(1).) The juvenile court must “clearly and specifically set forth” the limitations on the right of the parent to make educational or developmental services decisions for the child in its order limiting those rights. (Ibid.) Where such limitations are imposed on a parent, the court must “at the same time appoint a responsible adult to make educational or developmental services decisions for the child . . . .” (Ibid.)
We have not found any statutory provision or rule permitting shared decision-making between a parent and an appointed educational rights holder. Moreover, if a parent is fully capable of making educational and developmental services decisions, a court is constitutionally prohibited from appointing someone else to make, or share in making, those decisions. But the statute contemplates that, if a parent of a dependent child is not capable of making certain educational or developmental services decisions, someone else will make those decisions in order to protect the child and meet the child’s needs.
“The educational rights holder is responsible for investigating the child’s . . . educational and developmental-services needs, determining whether those needs are being met, and acting on behalf of the child . . . in all matters relating to the provision of educational or developmental services, as applicable, to ensure,” among other things, “[t]he provision of any appropriate early intervention or developmental services required by law, including the California Early Intervention Services Act or the Lanterman Developmental Disabilities Services Act.” (Rule 5.650(f)(2)(G).) The jurisdiction/disposition report indicates that, in this case, the educational rights holder may need to make decisions that protect K.P.’s eligibility for, and entitlement to receive, needed services through the California Children Services Program or the San Andreas Regional Center.
The court acted beyond its authority in designating a co-holder of educational rights to share decision-making with mother. If mother is unable to make educational or developmental services decisions that meet K.P.’s needs due to the instability of her mental health, substance abuse problems, or other circumstances, the court should appoint an educational rights holder to step into the parental role.
DISPOSITION
The educational rights order is reversed. The matter is remanded for further proceedings not inconsistent with this opinion.




_________________________________
ELIA, Acting P. J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.












In re K. P.; Santa Cruz County HSD v. A.P.
H045170