In re A.T. CA4/2

Opinion

Filed 5/22/13 In re A.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re A.T., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT E057084 OF PUBLIC SOCIAL SERVICES, (Super.Ct.No. RIJ120430) Plaintiff and Respondent, OPINION v.

T.T. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and

Appellant T.T.

Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and

Appellant S.C.

1 Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel,

for Plaintiff and Respondent.

T.T. (the father) and S.C. (the mother) appeal from an order terminating parental

rights to their daughter, A.T. (sometimes the child), who is now four years old. The

father contends that the Department of Public Social Services (the Department) failed to

give him due notice of the proceedings and failed to carry out a reasonably diligent

search for him. The mother joins in the father’s arguments.

Parental rights were not terminated until 10 months after the father — having

become aware of the proceedings somehow — appeared and received appointed counsel.

His counsel told the juvenile court that she was considering asserting lack of notice.

Nevertheless, she did not actually raise this issue, and she did not object to termination of

parental rights on this ground. We therefore conclude that it has been forfeited.

I

FACTUAL AND PROCEDURAL BACKGROUND

The mother, her daughter A.T., and her son D.J. lived with the mother’s eight

siblings and their mother (the maternal grandmother) in Moreno Valley.

In September 2010, the mother went to Las Vegas, taking D.J. (who was then four

months old) with her, but leaving behind A.T. (who was then almost two years old) with

the maternal grandmother. While the mother was gone, the police executed a search

2 warrant at the home, based on information that one of the mother’s siblings was selling

drugs.1

As a result of the raid, it was discovered that the water to the home had been shut

off, perhaps as much as three weeks earlier, due to nonpayment of the bill. The toilets

were not working. There was no water to wash or cook with. Also, the refrigerator was

not working, and the food inside was spoiled.

Some of the minor siblings reported that the adult siblings “physically fight

sometimes.” They also reported that the mother smoked marijuana.

The maternal grandmother was arrested on an outstanding misdemeanor warrant;

as a result, she was no longer able to care for A.T. A.T. was detained and placed outside

the home.

The next day, the mother phoned the social worker. She identified the father as

A.T.’s biological father.2 Apparently she provided his birth date. According to the social

worker, however, she “was not able to provide enough information on the father[] for the

Department to submit a Parent or Prison Locator.”

The Department then filed a dependency petition concerning A.T. and D.J.

1 The father claims that no drugs were actually found. That is not entirely clear. The social worker’s report does not say whether drugs were found or not, but it does say that the sibling suspected of selling drugs was arrested. 2 Actually, the mother identified the father as the biological father of both children. The maternal grandmother, however, identified a different man as D.J.’s biological father. Paternity tests eventually confirmed that the father was the biological father of A.T. but not of D.J. Thus, D.J. is not a party to this appeal.

3 The mother returned from Las Vegas with D.J. in time to appear at the detention

hearing. D.J. was detained and placed along with A.T.

In November 2010, the social worker asked the mother once again about the

father. The mother said that, when she told him that she was pregnant with D.J., he

“left,” and she had not heard from him since. She denied knowing his current

whereabouts. She stated that he had not provided any support for the children.

The social worker also asked the maternal grandmother about the father. She said

that she did not know his whereabouts. The social worker checked with the local jails

but found no records regarding the father. The social worker did not do anything else to

find the father; she did not check Department of Motor Vehicle records, telephone

directories, child support records, welfare records, or prison records.3

In November 2010, at the jurisdictional/dispositional hearing, the father was not

present. The juvenile court found that notice had been given as required by law. It

declared the children dependents based on failure to protect (Welf. & Inst. Code, § 300,

subd. (b)) and, as to their alleged fathers only, failure to support (id., subd. (g)). It

formally removed them from their parents’ custody. The juvenile court denied

reunification services for the father on the ground that his whereabouts were unknown.

(Welf. & Inst. Code, § 361.5, subd. (b)(1).)

3 The detention report mentions a “paternal aunt” who was being considered for placement. Apparently, however, this was a mistake, and the person named was actually a relative of the maternal grandmother’s ex-boyfriend.

4 Sometime in or before May 2011, the social worker learned (apparently from the

mother) that the father was living in Moreno Valley.4 The mother claimed that she was

in contact with him and that she had told him to call the social worker. However, he had

not done so.

In May 2011, at the six-month review hearing, the father was not present. The

juvenile court once again found that notice had been given as required by law.

In July 2011, the social worker asked that the paternal grandmother in Riverside

be evaluated as a possible placement. The social worker misidentified her as a paternal

aunt and did not explain how she was located.

In September 2011, the mother was arrested and incarcerated for aggravated

assault.

In November 2011, at the 12-month review hearing, the father was personally

present in court for the first time. Counsel was appointed for him.

The father’s counsel requested a continuance so that she could familiarize herself

with the case. However, she indicated that, after doing so, she would probably be filing a

petition under Welfare and Institutions Code section 388 (section 388) requesting

reunification services for the father. The juvenile court indicated that, if she did file a

4 An interesting but cryptic note in the “Delivered Service Log” states that in January 2011, “The family had a visit . . . at the CPS office in Moreno Valley,” and it lists the father as a “[p]articipant.”

5 section 388 petition, it would set it for hearing on the same day as the continued 12-

month review hearing.

The father’s counsel also requested visitation for him. She stated, “He has been

having visits. It’s not noted in the social worker’s report, but he has been.” The father

confirmed this, stating, “I have been at every visit until [the mother] was incarcerated.”

The court allowed him to have weekly visitation.

A social worker’s report dated May 2012 stated that the father had not requested

any visits since November 2011. Inconsistently, however, it also noted that he had had at

least one visit in December 2011.

In January 2012, at the continued 12-month review hearing, the juvenile court

terminated the mother’s reunification services and set a Welfare and Institutions Code

section 366.26 (section 366.26) hearing. The Department indicated that it was still

recommending setting a section 366.26 hearing because “[t]he father . . . has come

forward a little too late and the kids have been in the system over a year before he has

come forward to state that he may be the father of the child.” The father’s counsel had

not filed a section 388 petition and did not object.

In March 2012, the mother was convicted of aggravated assault and sentenced to

five years in prison.

In September 2012, at the section 366.26 hearing, the father’s counsel stated: “As

you can see the children know their father . . . . He has always been there for both the

6 children. He was never given services because he wasn’t present at the current detention

hearing.

“However, during that period of time, he always visited. The social worker

always knew that he was visiting and was part of these children’s lives. So we’re asking

at this time that the recommendation not be followed; that perhaps legal guardianship

would be the better solution due to the fact that there is a bond between father and the

children.

“Father is attempting to get into parenting classes. He has his own place, and he

would really like a chance down the road to be a part of the lives of his children.”

The father’s counsel still had not filed a section 388 petition. She did not argue

that the father had not been given proper notice of any of the proceedings, and she did not

argue that he had been improperly denied reunification services.

The juvenile court found that the children were adoptable and that there was no

applicable exception to termination. It therefore terminated parental rights.

II

THE FATHER FORFEITED THE CLAIMED LACK OF NOTICE

The father contends that the proceedings at the jurisdictional/dispositional and six-

month review hearings violated due process because the Department had not carried out a

reasonably diligent search for him.

7 The Department does not even attempt to argue that it did make a reasonably

diligent search. However, it does argue that the father forfeited any defect in the notice

given him by failing to raise the issue below. We agree.

“‘A party forfeits the right to claim error as grounds for reversal on appeal when

he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also

referred to as “waiver,” applies in juvenile dependency litigation and is intended to

prevent a party from standing by silently until the conclusion of the proceedings.

[Citations.]’ [Citation.]” (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686.)

“[A] party waives all jurisdictional objections to a proceeding, including lack of

notice, by opposing or resisting the proceeding on its merits. [Citations.]” (In re

Gilberto M. (1992) 6 Cal.App.4th 1194, 1199.) Even a lack of notice that would

otherwise be a due process violation can be forfeited by failure to raise it below, as long

there has been an opportunity to do so. (People v. Marchand (2002) 98 Cal.App.4th

1056, 1060; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1491.)

The waiver rule need not be applied when it would be “fundamentally unfair.” (In

re A.C. (2008) 166 Cal.App.4th 146, 156.) However, that is hardly the case here. As

soon as the father did appear, he was given appointed counsel. His counsel could have

filed a section 388 petition seeking to obtain reunification services for him; indeed, she

indicated that she was considering doing so, but she evidently decided not to.5

5 The father is not asserting ineffective assistance of counsel.

8 The father argues that we should not apply the waiver rule because he was not

represented by counsel “when the notice errors were made . . . .” This conveniently

ignores the fact that he was represented by counsel after the claimed errors occurred and

that his counsel had some 10 months in which to raise these errors, by way of a section

388 petition or otherwise, before parental rights were ultimately terminated.

The father also argues that filing a section 388 petition would have been futile

because, even if there was a due process violation, the juvenile court could not have

granted the petition unless it also found that extending the reunification period would be

in the best interest of the child. He cites In re Justice P. (2004) 123 Cal.App.4th 181.

There, however, the appellate court rejected the father’s due process claim not only

because he failed to show that extending the reunification period would be in the best

interest of the child (id. at pp. 188-192), but also because it found that the asserted due

process violation was harmless beyond a reasonable doubt; the father was incarcerated,

and he was not scheduled to be released until more than a year after the statutory

maximum reunification period ended (id. at pp. 192-193). Here, by contrast, the father

claims that the due process violation was prejudicial. There is no reason to suppose that

the juvenile court would not have entertained this claim under section 388.

In any event, we need not decide whether a section 388 petition was the proper

procedural vehicle for the father’s due process claim. We are convinced that the father

could still have raised his due process claim in some form — it was not too late. (See In

re B.G. (1974) 11 Cal.3d 679, 688-689 [before depriving a parent of the companionship,

9 care, custody, and management of his children, the state must afford him or her adequate

notice and an opportunity to be heard].) Given the exigencies of dependency

proceedings, it would be absurd to suppose that the father had no remedy before parental

rights were terminated and that his only remedy comes later, on appeal. Quite the

contrary — the onus was on him to raise his due process claim below at the earliest

possible opportunity.

As the Department notes, In re P.A. (2007) 155 Cal.App.4th 1197 is squarely on

point. There, the social services agency had not completed a declaration of due diligence

for the father. (Id. at pp. 1200-1201.) Nevertheless, at the jurisdictional/dispositional

hearing, the juvenile court denied reunification services for the father on the ground that

his whereabouts were unknown. (Id. at p. 1201.) After the juvenile court set a section

366.26 hearing (P.A., at p. 1201), the father appeared. (Id. at p. 1202.) His counsel

indicated that he was going to file a section 388 petition but never did. (P.A., at pp. 1202,

1206.) At the section 366.26 hearing, his counsel objected to termination of parental

rights, but not based on lack of notice. (P.A., at p. 1207.)

On appeal, the father argued that the juvenile court had erred by denying

reunification services in the absence of a completed declaration of due diligence. (In re

P.A., supra, 155 Cal.App.4th at p. 1207.) He also argued that the failure to give him

notice of the jurisdictional/dispositional hearing violated due process. (Id. at p. 1208.)

The appellate court held: “Because defective notice and the consequences flowing from

10 it may easily be corrected if promptly raised in the juvenile court, [the father] has

forfeited the right to raise these issues on appeal. [Citations.]” (Id. at pp. 1209-1210.)

The father also argued that “the waiver rule is not enforced when it conflicts with

due process . . . .” (In re P.A., supra, 155 Cal.App.4th at p. 1210.) The appellate court

responded: “Here, [the father]’s persistent avoidance of responsibility for [the child] and

his failure to seek any relief in the juvenile court persuades us the forfeiture rule is

appropriately applied in this case. To remand the matter now to permit [the father] to file

a section 388 petition he previously declined to file would achieve no purpose other than

to delay permanence for [the child], a result we cannot countenance on this record.”

(Ibid.) The identical reasoning applies here.

We conclude that, even if the juvenile court and the Department erred by not

ensuring that there was a more diligent search for the father, the error is not grounds for

reversal.

III

THE FATHER FORFEITED THE CONTENTION THAT THERE WAS

INSUFFICIENT EVIDENCE THAT HIS WHEREABOUTS WERE UNKNOWN

The father also contends that there was insufficient evidence that his whereabouts

were unknown to support the order denying him reunification services and hence

insufficient evidence to support termination of parental rights.

11 This is really the same argument that we already rejected in part II, ante, dressed

up in the guise of insufficiency of the evidence in the hope of avoiding forfeiture. This

effort fails.

At the jurisdictional/dispositional hearing, before the juvenile court could deny the

father reunification services, it had to find that his whereabouts were unknown. (Welf. &

Inst. Code, § 361.5, subd. (b)(1).) However, it is too late to challenge the sufficiency of

the evidence to support that finding. “‘“An appeal from the most recent order entered in

a dependency matter may not challenge prior orders, for which the statutory time for

filing an appeal has passed.”’ [Citation.] ‘[A]n unappealed disposition or postdisposition

order is final and binding and may not be attacked on an appeal from a later appealable

order.’ [Citation.]” (In re Liliana S. (2004) 115 Cal.App.4th 585, 589.) “Such a

limitation is necessary to promote finality and expedition of decisions concerning

children and their interests in securing stable homes. [Citation.]” (Dwayne P. v.

Superior Court (2002) 103 Cal.App.4th 247, 259.)

We recognize that this rule cannot be enforced when it conflicts with due process.

(In re M.F. (2008) 161 Cal.App.4th 673, 682.) “Relaxation of the . . . rule is appropriate

when an error ‘fundamentally undermine[s] the statutory scheme so that the parent would

have been kept from availing himself or herself of the protections afforded by the scheme

as a whole.’ [Citation.]” (Ibid.) The father, however, we repeat (see part II, ante), had

ample means (including appointed counsel) and ample opportunity to challenge the order

12 denying reunification services below. He was afforded the necessary protections; he

simply failed to avail himself of them.

Finally, at the section 366.26 hearing, the juvenile court merely had to find that it

had previously denied reunification services on the ground that the father’s whereabouts

were unknown. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) There was plainly

sufficient evidence of this.

IV

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI Acting P. J.

We concur:

KING J.

MILLER J.