Filed 8/24/17 In re S.F. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Stephen Mapes, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.

In November 2016, S.F., then three years of age, and her two older half-siblings, J.K. and A.K., came to the attention of San Bernardino County’s Children and Family Services Agency (CFS) based on allegations mother had been using methamphetamine, was involved in domestic violence with her boyfriend, was acting paranoid, and had been evicted from her apartment. The presumed father of J.K. and A.K. requested custody of his children, and they were sent for an extended visit prior to the jurisdictional hearing. In the meantime, CFS undertook assessments of the maternal grandparents’ home, as well as the home of a maternal uncle. Mother did not fully cooperate with CFS and failed to appear at the jurisdictional/dispositional hearing, where the court placed J.K. and A.K. with their father, made exit orders and dismissed the dependency as to them. As for S.F., the court found notice had been given as required by law, declared her to be a dependent of the court, removed her from mother’s custody and placed her in the custody of CFS pending approval of the relative home, granting CFS authority to place her with the grandparents by packet. Mother appealed.

On appeal, mother argues that the notice requirements of Welfare and Institutions Code section 309, subdivision (e), were not followed, regarding notice to relatives who may desire placement of the child. We affirm.

Background

Because the mother does not challenge the jurisdictional findings or dispositional judgment, we provide an abbreviated backdrop. In September 2016, a referral was made to CFS regarding three children, J.K., age 12, A.K., age 10, and S.F., age 3, regarding mother’s use of methamphetamine, engaging in domestic violence with her boyfriend, and the family’s eviction from their apartment. CFS responded to the apartment on the date of the eviction, to find dog feces all over the apartment, including on the floor of the children’s bedroom. At that time, S.F. was staying with the maternal grandparents, while the two older children stayed next door. The next day, mother picked up the children, took them to a hotel, and had her brother pick the children up so they would have a place to stay. Later, all three children were at the maternal grandparents’ home, but the older children had missed a significant amount of school.

In October 2016, mother and her boyfriend picked up the children and refused to reveal their whereabouts, because someone was following her and she had been told that a family member had called CFS. A dependency petition was filed on November 9, 2016, alleging that the children were persons described in Welfare and Institutions Code, section 300, subdivision (b). The detention report indicated that there are relatives to consider for placement, specifically the maternal grandparents, who had cared for the children in the past and who were willing to care for them again. The report also indicates that notice of the detention hearing had been given to the mother, the father of the older children, and the maternal grandparents.

The father of J.K. and A.K. appeared telephonically at the detention hearing and re-asserted his request for placement and custody of his children. The whereabouts of mother and the children were unknown at that time. Warrants to take the children into protective custody were issued.[1]

By the time of the filing of the jurisdictional/dispositional report, the home of E.K. had been approved for custodial placement, and CFS recommended returning J.K. and A.K. to his custody. However, the whereabouts of the children were still unknown to CFS. On November 28, 2016, minors’ counsel informed CFS that the children had been seen at the maternal uncle’s home for Thanksgiving. When mother left the uncle’s home, she left the children in the care of the maternal grandparents, who did not report their whereabouts to the CFS. Concerned about the grandparents’ failure to report the children’s whereabouts led CFS to decide to remove them. CFS still hoped to place S.F. with the grandparents, although not on an emergency basis.

CFS performed a due diligence parent search for D.F., the alleged father of S.F., but his whereabouts were unknown. On December 1, 2016, mother appeared in court and denied the allegations of the petition. Over mother’s objection, the court authorized the extended visit between J.K. and A.K. with their father, who was stationed at Fort Leavenworth, Missouri. Minors’ counsel requested that the maternal grandparents be reassessed for placement of S.F., and the court so ordered. The court also authorized a holiday visit for S.F. with the grandparents, and recalled the protective custody warrants.

The court ordered mother to complete a paternity questionnaire as to the father of S.F. and to provide the social worker with his address or telephone number so he could be notified of the dependency proceedings. Relative placement assessment requests had already been submitted to the Relative Assessment Unit (RAU) as to the grandparents. The court authorized placement with the grandparents by packet if the assessment were completed by December 22, 2016.

By December 29, 2016, the relative assessment of the grandparents’ home had not been completed, but the children had sibling visits via Skype, and had telephone visits with their grandparents. On January 18, 2017, CFS submitted an addendum report for the jurisdictional/dispositional hearing. In this report, the social worker noted that mother denied drug use but had failed to complete four drug tests during December. Mother insisted she was being followed and denied any domestic violence, although the boyfriend’s criminal record belied this statement. Mother had not had success in contacting the father of S.F. on Facebook. CFS had arranged an extended visit between mother and the older children before they left for Missouri, but mother failed to show up. Her telephone visits with J.K. and A.K. had to be suspended because of inappropriate statements she made to the children and because she discussed the case with them.

The contested jurisdictional/dispositional hearing took place on January 19, 2017, but mother did not appear. Mother’s counsel requested a continuance in order to provide her with a copy of the addendum report, but the court denied the continuance. The court found that notice had been given as required by law, admitted the social worker’s reports into evidence, declared S.F. to be a dependent child of the court, and removed her from mother’s custody. A request for relative assessments had been submitted to the RAU for both the grandparents and the uncle and aunt. The court found that D.F. was an alleged father who was not entitled to reunification services, but ordered services for mother. As for the older children, the court granted legal and physical custody of J.K. and A.K. to their father, discharging both children as dependents. Mother promptly appealed.

Discussion

Mother argues that the court and CFS violated the notice requirements of Welfare and Institutions Code[2] section 309, subdivision (e), requiring reversal of the dispositional orders as to all the children. CFS responds that mother forfeited her right to raise the issue, and that any notice violation was harmless. We conclude that (1) mother forfeited any challenge to any lack of notice, and (2) there was no violation of section 309.

a.Forfeiture

Mother concealed the whereabouts of the children following the initial referral, requiring the court to issue protective warrants. She also refused to contact or cooperate with CFS, and failed to appear at the initial detention hearing, where protective custody warrants were issued. She did not appear in court until December 1, 2016, a few days after the location of the children was revealed by minors’ counsel, based upon a report by minors’ counsel and the father of J.K. and A.K., who had been contacted by the maternal grandmother, requesting that he pick up his children. The maternal grandparents, who had the children in their home and had been fully informed of the dependency from the time of the initial referral, had failed to notify the social worker that the children were in their care, because “they knew what the department would do.”

Mother did not provide information about any relatives or request relative placement at the detention hearing upon the taking of the children into protective custody. Nor did mother object to lack of notice to relatives, nor did she ever inform CFS of the existence of any relatives not already known to the department. In fact, from the beginning of the social worker’s investigation of the referral, mother’s behavior was paranoid, and she was reluctant to cooperate with CFS. She also misrepresented that she had attempted to contact the department for months, when there was no record of any contact.

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. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “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.” (Ibid.) Neither dependency matters nor proceedings in juvenile court are exempt from this rule. (See, e.g., In re S.B., supra, at p. 1293, and cases cited therein; In re Curtis S. (2013) 215 Cal.App.4th 758, 761 [minor’s First Amendment challenge to juvenile court’s finding forfeited on appeal].) Indeed, “[a]s the United States Supreme Court recognized in United States v. Olano [(1993)] 507 U.S. [725,] 731, ‘“[n]o 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.”’ [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)

The rule is subject to some exceptions, “[b]ut the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.” (In re S.B., supra, 32 Cal.4th at p. 1293; see also In re Sheena K., supra, 40 Cal.4th at pp. 881-882 & fns. 2, 3.)

Here, mother appeared at the continued detention hearing, where she learned that the maternal grandparents were being assessed for placement. If there were other relatives to be considered, or if she had an objection to placement with the grandparents, she had an opportunity to bring it to the court’s attention at the detention hearing, but failed to raise the matter. Later at the jurisdictional/dispositional hearing, she had another opportunity to object to lack of notice to other relatives who should be considered for placement, but she voluntarily absented herself from the hearing. In the meantime, CFS had already initiated a secondary relative assessment request to the RAU for the maternal uncle and aunt.

Appellant never mentioned the issue of inadequate notice in the proceedings below, and no reason appears in the record for this failure to raise the matter. While defective notice may be a “most serious issue, potentially jeopardizing the integrity of the entire judicial process” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754), neither mother’s rights nor her opportunity to be heard were ever at risk. Further, mother continues to have the opportunity to apprise CFS of other relatives to assess, in the event placement with the grandparents or maternal uncle and aunt is not possible. In any event, mother cannot show prejudice under any standard of review where the duty to investigate relatives continues, as does mother’s opportunity to cooperate with CFS by providing appropriate information.

b.There Was No Notice Violation

Notwithstanding mother’s forfeiture of the claim, on the merits there was no error. Section 309, subdivision (e)(1), requires the social worker to conduct, within 30 days after a child has been taken into temporary custody, that is, detained, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, and other adult relatives of the child, including any other adult relatives suggested by the parents. Mother makes no complaint that the social worker failed to investigate the existence of relatives, and the record shows that within 30 days of the detention of the children from mother’s home, the social worker did commence an investigation. The social worker located the presumed noncustodial father of J.K. and A.K., as well as the maternal grandparents and uncle of S.F. There is no allegation that these individuals lacked notice, and because the father of J.K. and A.K., as well as the maternal grandparents, appeared at the hearings (even the ones mother missed), absent an indication that there are other relatives to investigate and notify, there was no notice violation.

Section 309, subdivision (e)(1), is applicable to children who have been taken into temporary custody, that is, children who have been detained out of the home. (ref. § 309, subd. (a).) The section requires the social worker to immediately investigate the circumstances of the child, and the facts surrounding the child’s being taken into custody, as well as to attempt to maintain the child with the child’s family through the provision of services.

Thus, when a child is detained, the social worker is required to immediately release the child to the custody of the parent, guardian, or responsible relative, unless one or more of the following circumstances exist: (1) The child has no parent, guardian, or responsible relative, or the parent, guardian or responsible relative is not willing to care for the child; (2) continued detention is a matter of immediate and urgent necessity for the protection of the child; (3) there is substantial evidence that the parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court; (4) the child has left a placement in which he or she was placed by the court; or (5) the parent or custodian of the child voluntarily surrendered physical custody pursuant to Health and Safety Code, section 1255.7 (the safe surrender of an infant at an approved site) and did not reclaim the child within the 14-day period.

Section 309, subdivision (e), requires that the social worker provide to all adult relatives who are located with written and oral notification of the removal, and an explanation of the various options to participate in the care and placement of the child, and forms to provide information to the social worker regarding the needs of the child, including a provision by which the relative may request permission to address the court. (§ 309, subd. (e)(1)(A) & (B), subd. (e)(2); In re R.T. (2015) 232 Cal.App.4th 1284, 1296.) The social worker is required to use due diligence to investigate relatives. (§ 309, subd. (e)(3).)

The children were taken into protective custody on November 28, 2016, which started the 30-day clock to investigate relatives. The actual notice requirement does not arise until the social worker has located relatives who are appropriate for placement (§ 309, subd. (e)(1)), and there is no specific statutory time limit within which the notice must be given. The social worker was informed about the maternal grandparents, who were aware of the proceedings prior to the detention hearing, and appeared at the initial hearing, so there was no defect in notice to the grandparents. A relative assessment of the grandparents was still in progress at the time of the dispositional order, and because the grandparents had acted as caretakers for S.F. in the past, they were entitled to the highest preference for placement. (§ 361.3, subds. (a)(6), (c)(2).)

The social worker was also aware of the maternal uncle, because CFS had been informed that while the protective warrant was outstanding, the children were known to have had Thanksgiving with the uncle and grandparents. As of December 29, 2016, a request for a relative assessment of the maternal uncle and aunt had already been submitted and a worker with the Relative Assessment Unit had been assigned. There is nothing in the record to suggest that other relatives were located, so the social worker discharged all notice duty.

Mother asserts that that there were no efforts to locate any relatives of E.K., the presumed father of J.K. and A.K. However, no such attempts were required, insofar and custody was not removed from that father. Notice to relatives is only statutorily required if a child is removed. (§ 309, subds. (a), (e)(1).) Because E.K. was the presumed father of J.K. and A.K., and was entitled to custody of his children outright, absent a finding of detriment, the court was required (“shall”) to place his children with him, without the need for identifying relatives for placement. (§ 361.2, subd. (a).) Thus, there is no notice violation whatsoever as to J.K. and A.K.’s paternal relatives.

As to S.F., section 316.2, subdivision (a) requires the court to inquire as to the identity of all presumed or alleged fathers, at the detention hearing or as soon thereafter as practicable. Subdivision (b) of section 316.2 provides that each alleged father shall be provided notice at his last and usual place of abode by certified mail. The court made the appropriate inquiry when mother appeared at the continued detention hearing in December 2016, at which time she informed the court he lived in the State of Oklahoma, but she did not provide an address or telephone number for D.F. The court ordered her to complete a paternity inquiry and provide additional information within one week of the hearing so CFS could give him notice of the dependency.

Nevertheless, mother asserts that there were no efforts to locate D.F., the alleged father of S.F., and his relatives. This statement is belied by the record showing that prior to learning that D.F.’s last known residence was in the State of Oklahoma, CFS had promptly exercised due diligence in efforts to locate him in California, documenting its efforts by way of a declaration submitted to the court. At the December 1, 2016, further detention hearing, the court obtained limited information from mother regarding D.F., and ordered mother to provide information regarding D.F.’s location and any outstanding support orders respecting S.F. Mother only attempted to contact D.F. via Facebook, never locating him.

Because D.F. is an alleged father, he was not entitled to custody. (In re E.T. (2013) 217 Cal.App.4th 426, 436-437.) As for his relatives, unless and until he comes forward to establish he is the biological father, there are no other adults “related to the child by blood, adoption or affinity with the fifth degree of kinship” (§ 361.3, subd. (c)(2)) to notify. Lacking any other adults related by blood to the child, there was no failure to investigate or give notice to S.F.’s father’s relatives.

On this record, there was no notice violation.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

FIELDS

J.