Opinion
NOT TO BE PUBLISHED
APPEAL from judgments and orders of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired judge of the Imperial S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super. Ct. No. NJ13033A/B.
HUFFMAN, Acting P. J.
Kenneth S. appeals judgments establishing permanent plans of guardianship for his children, William S. and Kenneth S., Jr., and terminating juvenile court jurisdiction. He also challenges orders for supervised visitation. We affirm the judgments and orders.
FACTUAL AND PROCEDURAL BACKGROUND
Kenneth S. (Kenneth) is the father of Kenneth S., Jr., (Kenneth Jr.) born May 2002, and William S., born July 2004 (children). The San Diego County Health and Human Services Agency (Agency) received numerous referrals alleging the children were at risk because of on-going domestic violence, neglect, and their mother's history of substance abuse. In January 2005 Kenneth and the children's mother separated after Kenneth was arrested for spousal abuse, spousal battery and child endangerment.
The children's mother did not participate in reunification services and is not a party to this appeal.
In March 2005 the children were removed from the custody of their mother when police officers observed hypodermic needles and methamphetamine pipes within Kenneth Jr.'s reach. Kenneth Jr. tested positive for methamphetamine. The children were adjudicated dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b).
Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.
Kenneth was upset and angered by the children's detention. He initiated a series of agitated telephone calls to social workers. He accused them of abducting the children for the "Black Market Baby Ring," and putting their mother in a brothel. In all his communications, Kenneth screamed, used obscenities and made threats against the social workers. The Agency recommended Kenneth obtain a psychological evaluation.
In its initial assessment, the Agency stated that chronic family stress, conflict and violence adversely impacted the children's sense of safety and security, and Kenneth's abusive behaviors presented an escalating risk to their safety. Kenneth lacked parenting skills and did not have support from friends or family. The condition of his home was not safe for the children. At disposition, the court placed the children in foster care and ordered Kenneth to participate in a 52-week domestic violence program, obtain a psychological evaluation, complete a parenting program and demonstrate his ability to consistently and appropriately parent his children.
Kenneth telephoned the social worker and apologized. He was tearful and sad. The evaluating psychologist deferred a diagnosis of personality disorder with borderline features, but determined Kenneth had a learning disorder. Kenneth told the social worker that he was 90 percent illiterate.
In September 2005 the children were placed with Kenneth's brother (Uncle). The social worker reported that Kenneth made a tremendous effort during the first six-month reunification period. He improved his living environment, participated in services and did not have any contact with the children's mother, whose whereabouts were unknown. Kenneth developed a stronger support network with Uncle. His visits with the children were unsupervised. Kenneth was appropriate and gentle with the children. The children were eager to see him and asked when they would be able to return home.
On November 1, 2005, the court placed the children with Kenneth. Uncle agreed to provide support services. However, on December 7, Kenneth refused to pick up the children from Uncle's home. On December 15 the social worker informed Kenneth it appeared he was abandoning his children. Kenneth became extremely upset and gave several nonsensical explanations about why he left the children with Uncle. The Agency detained the children and filed a section 387 petition alleging Kenneth was not providing the children proper care and supervision.
At the detention hearing on December 19, 2005, the Agency moved to dismiss the section 387 petition. The social worker believed they had "worked out a plan" with Kenneth. Citing reports the children were exposed to family strife, the court refused to dismiss the petition. The court noted that Mr. Brahms, Kenneth's privately-retained attorney, was not present and informed Kenneth that he was entitled to appointed counsel. Kenneth stated he did not hire an attorney for this proceeding. When the court again advised Kenneth that he needed legal representation, Kenneth responded, "I don't feel that I need a lawyer." He asserted the proceedings were unnecessary.
The court detained the children with Uncle, and authorized the Agency to detain the children with Kenneth with the concurrence of minors' counsel, who was not present. The court set the section 387 hearing for January 11, 2006, to allow the parties to reach an agreement "behind the scenes."
Kenneth did not appear at the section 387 hearing. County counsel informed the court that Brahms was no longer retained as Kenneth's attorney. The court relieved Brahms as counsel of record. The court sustained the section 387 petition and placed the children with Uncle.
The 12-month review hearing was held on May 2, 2006. Kenneth did not appear. The Agency reported he regularly visited the children without problems. Kenneth did not participate in therapy or complete a parenting class. The Agency recommended the court set a permanency plan hearing to place the children with Uncle under a plan of guardianship or adoption. The court terminated reunification services and set a section 366.26 hearing. The clerk of the court noticed Kenneth of his right to file a writ challenging the order setting the section 366.26 hearing.
At a hearing on August 29, 2006, Kenneth was advised of his right to counsel. Upon his request, the court appointed an attorney to represent him. Kenneth filed a writ petition under California Rules of Court, rule 8.452, which was dismissed as untimely by this court.
Further rule references are to the California Rules of Court.
Through September 28, 2006, Kenneth had unsupervised visitation with the children. He was appropriate, gentle and affectionate with them. The children appeared to look forward to his visits and did not want the visits to end. At the end of September, Kenneth became unstable, volatile and hostile. He told Uncle, "I can have you killed. Anytime I want." Uncle and other family members obtained restraining orders against Kenneth, and the Agency allowed Kenneth to visit the children only under professional supervision in a controlled environment. In November, during supervised visitation, Kenneth cursed and yelled at visitation staff in front of the children. The social worker believed Kenneth's behaviors were detrimental to the children's emotional well-being and recommended the court terminate visitation.
The section 366.26 hearing was held on December 26, 2006. The Agency recommended a permanent plan of guardianship with Uncle. The children had a strong bond with him, and also with their paternal grandfather and great-grandmother. Uncle did not want to adopt the children because he believed it would strain family relationships and cause Kenneth to become more volatile.
Kenneth asserted that he wanted the children returned to his care. However, he did not file a section 388 modification petition and "submit[ted] to the court" with respect to the guardianship.
The court ordered a permanent plan of guardianship for the children with Uncle and directed that Kenneth's visitation was to be supervised by a professional visitation service, as approved by the family court with the assistance of family court services. The court terminated dependency jurisdiction.
DISCUSSION
I
Kenneth Has Forfeited His Claims Of Due Process Violations
A
Kenneth contends the court unduly deprived him of counsel and violated his due process rights to be heard at the section 387 and the 12-month review hearings. He argues he did not waive his right to counsel at the December 19, 2005 hearing, and the court erroneously relieved his privately-retained counsel on January 11, 2006, without a noticed hearing and without substitution of counsel. Kenneth asserts the denial of his right to be heard at those hearings erroneously resulted in the children's plan of guardianship, rather than return to his custody. He also contends the court was informed he was illiterate and had a learning disorder; thus, the written notice of his right to seek appellate review of the order setting the section 366.26 hearing was inadequate.
The Agency contends Kenneth had notice of the section 387 and the 12-month review hearings and failed to appear or to request counsel; thus, the court did not err. It argues the record shows that Kenneth completed the 10th grade, recently obtained a driver's license, and ran his own business; thus, he was not illiterate and received proper written notice of his right to appellate review. The Agency further argues Kenneth's claims of error are forfeited on appeal and are untimely.
B
We conclude that Kenneth has forfeited his due process claim on appeal. "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.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
On August 29, 2006, Kenneth appeared in court. The court advised him of his right to counsel, appointed counsel at his request, and continued the section 366.26 hearing until December 26. During the months preceding the section 366.26 hearing, Kenneth could have filed a section 388 petition to bring his concerns before the trial court, but did not. The trial court did not have the opportunity to consider Kenneth's claims of error, and we decline to do so here. The facts on which he bases his claim are subject to dispute, and we cannot resolve them on appeal. (In re Dakota H., supra, 132 Cal.App.4th at p. 222; Dieckmeyer v. Redevelopment Agency of City of Huntington Beach (2005) 127 Cal.App.4th 248, 259.)
C
We further conclude that any delay in the appointment of counsel for Kenneth was harmless. Kenneth was noticed in court on December 19, 2005, that the section 387 hearing was scheduled for January 11, 2006. He failed to appear. In August Kenneth appeared at a noticed hearing and was appointed counsel. The section 366.26 hearing was not heard until December 26, 2006. Kenneth was represented by counsel at the section 366.26 hearing and for a significant period before the hearing. He was afforded the opportunity to be heard, to present and cross-examine witnesses, and to argue his case. (Rule 5.534(j).)
Significantly, Kenneth did not file a section 388 petition seeking return of the children to his care, and submitted to the court on the plan of guardianship. Without a section 388 modification petition, the court had no discretion to return the children to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Given the factual circumstances of this case, the court's order of guardianship was appropriate. We determine that it is not " 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 quoting People v. Watson (1956) 46 Cal.2d 818, 836; Cal Const., art VI, § 13; Code Civ. Proc., § 475.) Error, if any, was harmless.
II
The Court Did Not Err When It Ordered Supervised Visitation
Kenneth contends the court abused its discretion when it limited his visitation with the children and dismissed dependency jurisdiction. Kenneth does not support his contention the court erred when it dismissed jurisdiction by argument or legal citation, and we consider this claim abandoned. (Rules 8.204(a); 8.412(a); 8.360(a).)
When the court terminates dependency jurisdiction, the court may issue an order determining custody of, and visitation with, the child. (§ 362.4.) An order under section 362.4 is commonly referred to as an "exit order." (See In re John W. (1996) 41 Cal.App.4th 961, 970.) We review the trial court's exit orders for abuse of discretion. (In re Stephanie M. (2004) 7 Cal.4th 295, 318-319.) We will not disturb the court's custody and visitation orders unless the court has exceeded the limits of legal discretion. (Id. at p. 318.) The scope of discretion resides in the particular legal principles governing the subject of the action. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion." (Ibid.)
Under section 362.4, the court has broad discretion to fashion visitation orders. The court considers "the totality of the child's circumstances when making decisions regarding the child" (In re Chantal S. (1996) 13 Cal.4th 196, 201) and is guided by the child's best interests (In re John W., supra, 41 Cal.App.4th at p. 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712).
Here, the court acted within its discretion when it ordered Kenneth's visitation with the children to be professionally supervised, as approved by the family court with the assistance of family court services. The court observed Kenneth's demeanor at the section 366.26 hearing, in which he repeatedly interrupted the proceedings. During the social worker's testimony concerning his family, Kenneth shouted, "They are all dead." He previously threatened to kill Uncle, and yelled and screamed at his grandmother in William's presence. Uncle was concerned for the children's safety as well as his own, and refused to supervise visitation. Kenneth was restrained from coming to his home.
Although Kenneth points to his many positive interactions with the children, the record shows these positive interludes were regularly interrupted by periods in which Kenneth was unstable, hostile, threatening, explosive and irrational. The children witnessed his tirades. At the time of the hearing, two family members and two social workers had restraining orders against Kenneth. Kenneth's poor impulse control, mood swings, and violent threats against close family members allowed the court to reasonably infer the children's best interests would be promoted by professional, supervised visitation under the auspices of the family court. In view of the unpredictable behaviors Kenneth exhibited throughout the proceedings, including the section 366.26 hearing, the court's decision to have the family court monitor future visitation was correct. There is no error.
The Agency incorrectly asserts Kenneth may file a section 388 petition to modify the visitation orders. Once the juvenile court terminates jurisdiction, this no longer is an appropriate procedural mechanism. The family court has jurisdiction to modify and enforce a juvenile court's visitation orders. (In re Chantal S., supra, 13 Cal.4th at pp. 203, 213.)
DISPOSITION
The judgments and orders are affirmed.
WE CONCUR: HALLER, J., O'ROURKE, J.