In re Louis B.

Filed 4/4/07 In re Louis B. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In their second appeal in this dependency matter, Jamie J. (Mother) and Louis B. (Father), parents of Louis B., Jr. (Lou), born in 1999, and Justice B. (Justice), born in 2003, separately challenge the order terminating their parental rights to their children and selecting adoption as the permanent plan. They contend the juvenile court engaged in judicial misconduct and also abused its discretion in restricting their contact with their children and allowing Lous therapist to work exclusively with his foster mother. We shall affirm the juvenile courts order.

I. FACTUAL AND PROCEDURAL BACKGROUND

First Appeal

We recently resolved the parents first appeal in an unpublished opinion (March 9, 2007, A111161) (hereinafter Louis I). In that appeal, the parents challenged the juvenile courts jurisdictional and dispositional orders, and our opinion affirming the juvenile courts orders sets forth the events that took place in the dependency proceedings from August 2002 to July 2005.[1] The essential facts relating to the proceedings underlying the first appeal are as follows.

In August 2002, the Alameda County Social Services Agency (the agency) filed an original petition alleging that Lou was at risk because of his parents history of substance abuse and domestic violence and because the family was living in a dirty and unsafe home. The juvenile court placed Lou in a foster home. In March 2003, shortly after the birth of Lous sibling, Justice, the agency filed a petition on behalf of Justice, alleging he was at risk because his parents had not addressed the issues leading to Lous removal. Justice was placed with foster parents, Mr. and Mrs. H.

In October 2003, Mother separated from Father and moved to her maternal uncles home in Tracy, California. She began to show progress, and in October 2004, after a trial visit went well and the children began living with Mother at the uncles house, the juvenile court terminated its jurisdiction, awarding legal and physical custody of the children to Mother.

In January 2005, the agency filed a second petition on behalf of the children, alleging that Mother had returned to Father with the children and that the family was once again living in a dirty and unsafe home. According to the petition, Mother left the children with Mr. and Mrs. H. on several occasions without any provision for their care and did not contact Mr. and Mrs. H. or pick up the children at the designated time and place. Lou had been late or missed school 37 out of 97 days and was in the bottom of his class. Despite having been previously potty trained, he was now regularly pooping and peeing in his pants.

After a contested hearing, the juvenile court found most of the allegations in the petition to be true and removed the children from their parents care. The court ordered that the children remain in the home of Mr. and Mrs. H. As indicated, this court affirmed the juvenile courts orders.

Current Appeal

In a September 13, 2005 status review report, the agency recommended that the court set a permanency hearing under Welfare and Institutions Code section 366.26[2] (366.26 hearing) and select adoption as the permanent plan. An adoption assessment report concluded that the boys were adoptable. They were doing well at the home of Mr. and Mrs. H., who were willing to adopt them.

According to an October 25, 2005 memorandum report, the parents arrived late to every weekly visit from September 13 through October 18. Generally, the visits went well. During two visits, Father told Lou that he would be going home, and Lou acted out, throwing a temper tantrum, acting aggressively toward Justice and soiling his pants the following day at school. A bonding study evaluating the childrens relationship to their biological parents and to their foster parents was attached to the memorandum report.

On November 7, 2005, Lous therapist reported that she had diagnosed Lou with Reactive Attachment Disorder (RAD). Lou soiled his underwear after visiting his parents, and also did so at the therapists office when they talked about his parents. Lou had begun bonding with his foster parents. The therapist opined that family therapy was not appropriate, as it requires the parents to listen to the child without interruption and show empathy for the childs experiences and feelings. She had not heard evidence of the parents ability to do this.

After a contested hearing, the court found that the permanent plan of termination of parental rights and adoption was appropriate and set a 366.26 hearing. After hearing testimony from a social worker that the visits were harmful to the children because the parents expressed their negativity about the foster mother in front of the children and made Lou feel uncomfortable by put[ting] him on the spot, the court reduced visitation from weekly two-hour visits to two one-hour visits per month. The parents filed a notice of intent to file a writ petition to contest the court orders but did not file such petitions.

According to a February 21, 2006 report, the parents were on time for most of the recent visits. A 366.26 report stated that Mr. and Mrs. H. wished to adopt both children. They were licensed foster parents and were raising two children of their own as well as an adopted child. They had cared for Justice for the first 14 months of his life, and for both children since January 2005. When an adoption social worker explained to Lou that she helped children find families, Lou immediately responded, I just want to stay here and live with my brother! Lou later told the social worker that he wanted to have two of me and two of my brothers, then one of us could live here and one of us could live with my mom and dad. The report stated that terminating parental rights would not harm the children, and that [a]doption by their current caregivers will allow them the continued benefits of becoming permanent members of the family where they have already found much stability and support.

On the first day of the contested 366.26 hearing, the parents were not present when the case was called. The court explained that the matter is on for a . . . 366.26 . . . hearing and that the proposed plan is that the court terminate parental rights and order a permanent plan of adoption. The court understood that the parents were opposed to this plan. The court stated what the adoption assessment report had concluded, then proceeded to summarize the bonding study. During its summary, the court stated, And it appears that the overall thethe court so finds that the minors look to their foster parents as parental figures, they look to them for comfort, for security, for nurturance, and although Lou[] in particular has more familiarity with his biological parents than Justice does, it does appear that they do not see their parents, their biological parents, in a parental role, although there is identification of them perhaps as mom and dad. But its clear to me from the assessment and all of the reports in this matter that they look to their foster parents as their parents. After further noting the childrens relationship to their biological parents and to their foster parents, the court stated, Okay. All right. So that is basically it in a nutshell. Mr. Braue [agencys counsel], are there any updates or any other information?

As Mr. Braue began to respond, Mother entered the courtroom, approximately 23 minutes late. Mr. Braue stated that the only update was that another visit had taken place. The court followed up by mentioning what the reports had stated regarding visitation: Overall, . . . it appears that the recent visits that have taken place, my understanding is that the minors do seem to look forward to seeing their biological parents and that those visits with some minor issues of redirection, et cetera, have gone okay. Counsel for the agency stated that she was prepared to submit on the 366.26 report and the agencys recommendation.

Father then entered the courtroom, approximately 30 minutes late. Fathers counsel stated he was opposed to the recommendation because it would be detrimental to sever the bond between Father and the children. He said he intended to call Father as a witness. The court responded, All right. Let me go to Mr. Slocumb [Mothers counsel]. I will come back to see if its a similar situation with the mother. Mothers counsel stated he was also opposed to the recommendation. After Mothers counsel described the arguments he intended to present, the court stated, All right. Thank you. Mr. Braue and/or Miss Siegel [minors counsel], did you wish to be heard regarding some of the comments? It appears that were going to have a contested hearing. After some brief comments from Mr. Braue and Miss Siegel and a discussion regarding the witnesses each of the parties intended to call, Father was sworn as the first witness.

Father testified that he had regular contact with his children for the last 12 months. He stated that when he was alone with Lou, Lou opened up and said he wanted to know when he was going home. Every time the children saw Mother, they ran to her, gave her hugs and kisses and cried or got upset when they had to leave. He testified that if the children were not able to see him and Mother anymore, they would become angry children. When Mothers counsel began to ask him, If you were not able to see these children anymore . . . . Father stated, Who would I shoot first? Are you going to tell me I cant see my kids at all now? That is just not going to happen. I would die before that ever happens to me. The court later admonished Father for making these statements.

Mother testified that when she visited her sons, either one or both of them ran to her and called out her name. Lou told her that he hated short visits and wanted to know why the judge was making it so hard for them to see each other. Justice also asked Mother to go home with him to his foster mothers house. Mother felt she had been prevented from bonding with her children as her visits were restricted and supervised, and she was unable to have telephone visits with Justice. Mother also testified that when Justice sustained a scratch on his face, Lou was afraid that Father was going to get upset and notify the social worker, and that he and Justice would no longer be able to live at his foster parents house. She testified that having her parental rights terminated would impact her children for their rest of their lives. She believed Lou was probably going to end up in prison, probably being a batterer of his wife, and that in the shortterm, he would become violent toward his brother and regress to wearing pull-ups. She stated that Justice may be fine because hes young enough he might get over it.

A child welfare worker testified that Mr. and Mrs. H. had applied for an adoptive home study and had completed their fingerprinting for the study. A visitation supervisor testified that Lou was pleased to see Mother but was fine at the end of the visits. On several occasions, she had to tell the parents not to speak negatively about the foster mother, and to not make rules for Lou to apply in his foster home. When questioned by his father about his foster home, Lou appeared uncomfortable. Justice called his foster mother mom and Lou called her mom, or by her first name. For most telephone visits, Lou said, have Justice talk to them.

Lous therapist testified that she had been treating Lou for one and a half years. As treatment for RAD, she educated the foster mother about RAD and had some sessions with the foster mother . She did not meet with the parents, and worked on Lous relationship with Mother by discussing his feelings toward Mother.

A support worker, who transported the children to and from the visits and supervised some of the visits, testified that Mother and the children got along well. Lou greeted and hugged Mother, while Justice often played on his own with the toys that were in the room. There were a few instances in which Lou did not want to go to the visit. There were also two visits at which Lou was real disrespectful to Mother. On one occasion, Lou ran up and down the halls, was really irate and really out of control, hitting Mother and throwing things at her. The witness felt he could not testify as to whether Lou and Mother shared a bond because his role was limited to observing visits.

The support worker also testified that Lou enjoyed seeing his father but normally what would happen is Dad would end up saying something against or about the foster mom, and that would upset Lou[] to where either Lou[] would go off and sit by himself, or h[e] and dad at that point would stop talking and they would not engage from that point on until it was time to say goodbye. And that happened quite often. Father spent most of his time engaging with Lou and interacted with Justice only when Lou was not there or when Lou was not speaking to Father. The children had no trouble separating from their parents and never cried at the end of the visits. On one occasion, after the visits were decreased from two hours to one hour, Lou asked at the end of the visit why he had to leave so early. The witness told Lou that the visits were shorter, and Lou responded, oh, man, but did not appear to be upset and had no trouble leaving the visit.

On July 10, 2006, the court terminated both parents parental rights to both minors, found the children were likely to be adopted, and ordered adoption as the permanent plan. The parents filed timely notices of appeal.

II. DISCUSSION

A. The juvenile court did not commit judicial misconduct.

The parents assert that the juvenile court committed judicial misconduct by prejudging the case. The parents have not preserved this claim, however, because, as they acknowledge, their trial counsel did not object to any of the courts statements to which they now refer. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237 [As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on that ground at trial].) A partys failure to object at trial bars its claim of error on appeal, particularly where an objection would have permitted the court to clarify any possible misunderstanding. (People v. Sanders (1995) 11 Cal.4th 475, 531.)

The parents assert that the failure to object should be excused because they were surprised by the comments and had little opportunity to react, and because any objection would have been futile and may have angered the court. In support of the first argument they rely on In reKhonsavanh S. (1998) 67 Cal.App.4th 532, 536-537, in which the court found that the defendant had not waived the right to assert on appeal that an order requiring him to undergo AIDS testing was improper. There, trial counsel was utterly surprised by the courts ruling [which was made at the end of the case in summary fashion] and had little opportunity to react. (Ibid.) Here, in contrast, the court made the comments allegedly evidencing partiality at the beginning of the 366.26 hearing. For approximately one-half hour before the parents arrived and the first witness took the stand, the court recited its understanding of what was reflected in reports that had previously been submitted and the court and counsel discussed the content of those materials. The parents attorneys, who were present, could have raised any concerns or objections during that discussion, or at any time during the following six full days of testimony and argument. Because the parents counsel had ample opportunity to react and to set forth their objection, their failure to do so forfeited the right to do so on appeal.

The parents second argument is similarly without merit. We have found nothing in the record indicating that an objection would have been futile or that the court would have been angered by an objection. To the contrary, the record reflects that each time there was an objection by any party, the court fully addressed it and responded in an impartial manner. The court was patient and courteous toward the parents, who frequently interrupted the court proceedings, consistently arrived late, stormed out of the courtroom, snickered at the agencys witnesses as they testified, and used profanity to express their feelings about the proceedings. Based on a review of the entire record in this case, we have no doubt that the juvenile court would have responded appropriately to an objection. The failure to object cannot be excused on the ground that any objection would have been futile.

Moreover, independent of forfeiture, the claim of judicial misconduct lacks merit. The allegedly impartial comments occurred when the court was providing what it referred to as a nutshell. Although at one point the court used the phrase the court so finds, in context it is clear that the court was summarizing the reports and events in the case. The court may have had some preliminary thoughts about the issues presented, since it had presided over the case for several years and as recently as three months earlier had issued orders relating to the risks involved in returning the children to the parents care. Opinions formed by the judge during the course of the proceedings do not constitute bias unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. (Liteky v. United States (1994) 510 U.S. 540, 555.) There is no indication whatsoever of such favoritism or antagonism.

Father cites cases to establish that the juvenile court improperly prejudged the case, but each is distinguishable. In People v. Barquera (1957) 154 Cal.App.2d 513, 517, the judge stated several times to defense counsel that it would be a waste of time to present any evidence: I dont think you have got any defense, Counsel . . . . I dont have to let you offer any [evidence]. In Weber v. Weber (1948) 33 Cal.2d 153, 156, in which spousal support was an issue, the judge stated twice,  [Husband and his counsel] do not have to waive alimony. The Court will waive it for them.  When wifes counsel explained why his client was entitled to support, the court stated,  Go ahead and wash your dirty linen. I wont stop you.  (Ibid.) The judge repeated the comment about washing your dirty linen twice more in the proceedings and made clear that the presentation of evidence by the wife was not going to make a difference. (Id. at pp. 156-157.) In Pratt v. Pratt (1903) 141 Cal. 247, 251-252, the court prohibited a party from presenting certain key evidence. The judge in In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1500-1501 made numerous statements, several of them derogatory, suggesting that his findings were based on gender bias and stereotypes.

In contrast, the juvenile court here did not prohibit any party from presenting evidence and made no comments suggesting the existence of bias against either of the parents. After making its preliminary statements on the first day of trial, the court asked all counsel to state their positions on the issues set for trial and went on to hear six days of testimony and argument. The trial transcript, consisting of hundreds of pages of testimony and argument, contains nothing tending to show that the court limited the parties opportunity to present evidence, or that it did not fairly and objectively consider all of the evidence. The juvenile court did not engage in judicial misconduct.

B. The court did not abuse its discretion in restricting the parents contact with the

children and allowing Lous therapist to work exclusively with the foster mother.

The parents claim the court abused its discretion by restricting contact between them and their children, and by allowing Lous therapist to work exclusively with the foster parents, thereby making it impossible for them to establish the beneficial relationship exception to adoption.

The parents are precluded from making these assertions. Section 366.26, subdivision (l), provides that an order setting a 366.26 hearing is not appealable unless (A) the party files a timely petition for writ review after the 366.26 hearing is set; (B) the petition addresses the specific issues to be challenged; and (C) the petition is summarily denied or otherwise not decided on the merits. All orders made contemporaneously with the setting of a 366.26 hearing are subject to section 366.26, subdivision (l). (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022-1023.)

Here, the order reducing visitation, and the finding that reasonable services had been provided, were made at the same time the court set the 366.26 hearing. If the parties contended the court had unduly restricted contact with their children, or believed they were entitled to work with Lous therapist, they were required to challenge the orders and findings by filing a timely writ petition. As noted, the parents filed notices of intent to file such petitions, but failed to file the petitions. Thus, they are not entitled to assert these claims for the first time on appeal.

In any event, the record supports the courts orders. It was reasonable for the court to reduce visits after a social worker testified that the visits were harmful to the children. It was also reasonable for the court not to order the therapist to work with the parents. Although the therapist testified that one of the ways in which RAD is treated is for the therapist to work with the child and the parents, the therapist considered that family therapy was not in Lous best interests, as there was no evidence of the parents ability to listen to Lou without interruption or correction or to show empathy for his experiences and feelings. The juvenile court did not abuse its discretion in restricting the parents contact with their children and in failing to require the therapist to work with the parents.

C. We need not address the parents claim that if this court reverses

the juvenile courts prior orders, an automatic reversal in this appeal is warranted.

The parents filed their briefs in this appeal before this court had issued its decision in Louis I. They asserted that if this court reversed the juvenile courts jurisdiction and disposition orders in Louis I, the order terminating their parental rights would necessarily require reversal. Because we have affirmed the jurisdiction and disposition orders in Louis I, this contention is now academic.

III. DISPOSITION

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] To obtain context, maintain consistency and economize judicial resources, we take judicial notice of our prior opinion in Louis I. (Evid. Code,  451, subd. (a); see In re Luke L. (1996) 44 Cal.App.4th 670, 674, fn. 3.)

[2] All further statutory references are to the Welfare and Institutions Code.