In re Ricardo M.

Filed 3/19/07 In re Ricardo M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Becky Dugan, Judge.Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Tawny V. Lieu, Deputy County Counsel, for Plaintiff and Respondent.

Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.

Ricardo M., Sr. (the father) appeals from an order terminating parental rights to his now-three-year-old son, Ricardo M., Jr. (Ricky). The father claims the juvenile court erred by failing to appoint counsel for him. He further claims the juvenile court erred by failing to provide him with reunification services and by finding that reasonable reunification services had been provided. We will hold that he forfeited both contentions by failing to raise them at the first opportunity below. Accordingly, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

In February 2004, when Ricky was about one year old, his mother (the mother) gave birth to his brother J.G.^[1] J.G. was born with a septic listeria infection, which resulted in numerous health problems, including severe brain damage. The mother admitted using methamphetamine, as well as failing to obtain prenatal care, while pregnant with J.G. As a result, both Ricky and J.G. were detained, and the Department of Public Social Services (the Department) filed a dependency petition concerning them. Ricky was placed in a shelter home.

The mother identified the father as Ricardo M., Sr. He was named as the father on Rickys birth certificate. She said that she and Ricky had been living with him in Mexicali, Mexico, until one week before J.G. was born, but she claimed not to know his address. The report for the detention hearing listed him as the presumed father. The reports for the 12- and 18-month review hearings, however, listed him as the alleged father.

According to the report for the jurisdictional/dispositional hearing, the mother said that the father had gone to Mexico because he was on the run from the law. She added that she had not heard from him since returning to the United States. According to a Declaration of Search, the mother had not provided enough information about the father to make it possible to search for him. The report therefore listed his whereabouts as unknown.

In March 2004, at the jurisdictional/dispositional hearing, the juvenile court sustained the petition based on both parents failure to protect (Welf. & Inst. Code,  300, subd. (b)) and the fathers failure to support (id., subd. (g)). It denied reunification services for the father, because his whereabouts were unknown. (Welf. & Inst. Code,  361.5, subd. (b)(1).)

In April 2004, Ricky was placed back with the mother.

A report prepared in August 2004 stated that the father was incarcerated at the California Rehabilitation Center (CRC) in Norco. Nevertheless, in September 2004, at the six-month review hearing, the juvenile court did not appoint counsel for the father and did not order reunification services for him.

A report prepared in August 2005 stated that the father had been released in May 2005. According to the mother, she had had limited contact with him, but he was in a relationship with the maternal grandmother.

In September 2005, the mother disappeared, taking Ricky with her. In October 2005, she was arrested for being under the influence of methamphetamine. When the social worker located her, she revealed that she had sent Ricky to stay with the maternal great-grandmother. As a result, Ricky was redetained, and the Department filed a section 387 petition concerning him. He was placed with the maternal great-grandmother.

A report prepared in October 2005 confirmed that the father had been released on parole. The social worker tried to contact the father through his parole officer, but the parole officer never returned her calls, and other parole personnel told her that his address was confidential.

In November 2005, the juvenile court held a combined (1) jurisdictional/ dispositional hearing on the section 387 petition, and (2) 18-month review hearing. At this hearing, for the very first time, the father appeared.

The juvenile court sustained the section 387 petition. It then terminated reunification services and set a section 366.26 hearing. It commented: [The father] has appeared on the scene today. Hes never held himself out to be the father. Hes never appeared until todays date, never done anything on the case. He was denied services as an alleged dad. Ill have both he [sic] and mom given their writ rights since hes here today.

You have a right . . . to preserve your right to appeal by filing a piece of paper called a writ. [The mothers counsel] can give you each one if you want to do that. It has to be done within seven days of todays date.

Later, there was this discussion:

[THE COURT:] Would you have [the mother] sign the writ rights. I know she wants to do that.

[MOTHERS COUNSEL]: Father doesnt have an attorney.

THE COURT: No. I didnt give him one.

[MOTHERS COUNSEL]: But if he filed a writ, Im not sure ‑‑

[MINORS COUNSEL]: Hes not entitled to a writ.

THE COURT: Hes not entitled to do that.

[DEPARTMENTS COUNSEL]: We denied him services at dispo. So that would be an appeal.

THE COURT: So he would just take an appeal at the end. [] . . . []

 . . . Normally even if we deny services we notify all parents of their writ rights.

[DEPARTMENTS COUNSEL]: We can just put it on the record that hes given the form[,] I guess.

THE COURT: Just give him the form. If he wants to file it and preserve his rights[,] he can do it. If he doesnt ‑‑

[MOTHERS COUNSEL]: He would just have to file the writ himself?

THE COURT: Yes. He would have to file the writ himself, but he is still entitled to those rights.

The father did not file a writ petition.

In December 2005, the father phoned the social worker and requested visitation. As a result, he attended either one or two monitored visits. Thereafter, however, he moved; he did not give the social worker his new address or phone number.

Also in December 2005, the maternal great-grandmother had a heart attack. As a result, Ricky was placed with a prospective adoptive family.

In March 2006, on the date set for the section 366.26 hearing, the father appeared again. At that point, the juvenile court appointed counsel for him. It then continued the hearing.

In June 2006, at the continued section 366.26 hearing, the father was not present; his appointed counsel appeared for him but did not raise any substantive issues. The juvenile court terminated parental rights.

II

DISCUSSION

A. Introduction.

In addition to arguing, on the merits, that the juvenile court did not err, the Department raises the following procedural hurdles to the fathers contentions:

1. The father lacks standing to appeal because he never became a party of record.

2. The father had to raise his contentions, if at all, by way of a timely writ petition.

3. The father forfeited his contentions by failing to raise them below.

4. The father forfeited his contention concerning reunification services by failing to appeal from the March 2004 order that denied him reunification services.

Any analysis of the first two of these issues would be complicated by the fact that the father is claiming that the trial court failed to appoint counsel for him. For example, the Department argues that the father was not a party of record because he was only an alleged father and because he never asserted a position in the trial court. The father argues, however, that, precisely because the juvenile court failed to appoint counsel for him, he had no opportunity to assert that he was really a presumed father or to assert any other particular position; indeed, he had no way of knowing that he should.

Similarly, the Department argues that a parent who failed to challenge an order setting a section 366.26 hearing by way of a writ petition cannot challenge the order on appeal. The writ requirement, however, may be excused if the juvenile court failed to advise the parent of it. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838-839 [Fourth Dist., Div. Two]; In re Merrick V. (2004) 122 Cal.App.4th 235, 248-249; In re Athena P. (2002) 103 Cal.App.4th 617, 625; In re Maria S. (2000) 82 Cal.App.4th 1032, 1038; In re Rashad B. (1999) 76 Cal.App.4th 442, 446-450; In re Cathina W. (1998) 68 Cal.App.4th 716, 719-724, 726.) Here, the juvenile court did advise the father of the writ requirement, but its advice was ambiguous and arguably inconsistent. For example, at one point, it agreed that he was not entitled to file a writ petition. He could argue that this advice was all the more confusing or misleading because the juvenile court failed to appoint counsel for him.

By contrast, as will be seen, our analysis of the Departments forfeiture argument is independent of the failure to appoint counsel; moreover, it is dispositive of the appeal. This makes it unnecessary for us to discuss either the merits or any of the Departments other procedural arguments. (See People v. Steinbrook (1978) 85 Cal.App.3d Supp. 8, 12 [[o]rdinarily we would decide jurisdiction before considering the merits, but here our view of the merits makes it unnecessary to determine jurisdiction]; see also Padres Hacia Una Vida Mejor v. Davis (2002) 96 Cal.App.4th 1123, 1129 [assuming, without deciding, that appellants have standing to appeal].)

B. Analysis.

[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. [Citation.] [] Dependency matters are not exempt from this rule. [Citations.] (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)

When there has been no opportunity to object, there can be no forfeiture. (See People v. Scott (1994) 9 Cal.4th 331, 356.) Still, the objection must be raised as soon as there is an opportunity to object. (See Hale v. Morgan (1978) 22 Cal.3d 388, 394 [ . . . [i]t is the general rule applicable in civil cases that a constitutional question must be raised at the earliest opportunity or it will be considered as waived].) Even a lack of notice and hearing ‑‑ a violation of due process ‑‑ can be forfeited by failure to raise the issue at a subsequent hearing. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)

In re Gilberto M. (1992) 6 Cal.App.4th 1194 is practically on point. There, when the child was detained and the dependency was filed, the father was in prison. (Id. at p. 1196.) The juvenile court did not appoint counsel for the father until some point before the six-month review hearing. (Id. at pp. 1196-1197.) After the juvenile court terminated parental rights, the father appealed, arguing for the first time that the failure to appoint counsel for him was error. The appellate court held that he had forfeited the error by subsequently appearing and litigating without objection . . . . (Id. at p. 1200.)

In this case, there could be a good excuse for the fathers failure to challenge his lack of appointed counsel when the section 366.26 hearing was set. For example, for all we know, he may not have known that he had the right to appointed counsel. At the very next hearing, however, the juvenile court did appoint counsel for him. Then, at the section 366.26 hearing, although the father was not personally present, his appointed counsel appeared for him. Thus, at that point, the father could have objected to the earlier failure to appoint counsel. He did not. Significantly, he does not argue that his appointed counsel rendered ineffective assistance by failing to object. We therefore conclude that the father waived his contention that the juvenile court should have appointed counsel for him by failing to raise it as soon as he reasonably could.

He likewise forfeited his contention that the juvenile court erred by failing to provide him with reunification services by failing to raise it at the first opportunity below. (See In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886.)

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

McKINSTER

J.

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^[1] Neither the mother nor J.G. is involved in this appeal.