Opinion
C066035 Super. Ct. No. 2804501 Super. Ct. No. 2804502 Super. Ct. No. 2804601 Super. Ct. No. 2804602)
10-26-2011
In re A.S. ET AL., Persons Coming Under the Juvenile Court Law. SHASTA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. W.S., Defendant and Appellant.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant father appeals from various orders, entered at the dispositional hearing held on July 9, 2010, and generally related to lack of visitation.
We ordered supplemental briefing on the issue of whether the juvenile court's original informal dispositional order, entered on October 6, 2009, and invoking Welfare and Institutions Code, section 360, subdivision (b), was tantamount to disposition and thus an appealable order.
Further undesignated statutory references are to the Welfare and Institutions Code.
Concluding that the answer is yes, we hold that to the extent that father's claims reference orders originally entered at that hearing and at subsequent proceedings held prior to the July 9, 2010 hearing, these claims are forfeited by his failure to file a timely notice of appeal from the original orders. We then explain that father's claims fail when considered on their respective merits. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following a previous trek through the dependency system, A.S. (born December 1994) and J.S. (born January 1999) were adopted by father and his wife (mother). On June 2, 2009, A.S. reported that he and father were involved in a physical altercation. A.S. was then interviewed by a social worker. A.S. reported frequent physical abuse at the hands of father. A.S. also reported father and mother locked him out of the house at night without food.
J.S. also was interviewed by a social worker. Appearing nervous during the interview, J.S. disclosed to the social worker that father had touched her chest, buttocks, and thighs "inappropriately." The Department of Health and Human Services (the Department) detained the children on June 5, 2009, pending further investigation.
These allegations of sexual abuse were investigated by the sheriff's department and determined to be unfounded.
The following day, the Department filed a section 300 petition, alleging the parents failed to protect the children. Specifically, the petition alleged that A.S. was physically abused and locked out of the house at night. It was further alleged that, as foster parents, father and mother had a history of using corporal punishment to manage various children's behavior, and there was an ongoing criminal investigation for child endangerment. At the detention hearing, the children were ordered to remain in foster care. The juvenile court further ordered supervised visits with both parents, one hour each month, after the children completed mental health assessments.
The Department then filed a first amended section 300 petition including more specific allegations of physical abuse against A.S. and allegations that J.S. witnessed the abuse of her brother. The jurisdiction hearing on the first amended petition was held on July 22, 2009. At that time, the children, who were placed in the same foster home, were refusing to see either of their parents. The juvenile court continued the jurisdiction hearing, but ordered visitation between the children and both parents for one hour each month, to be increased at the Department's discretion. Minors' counsel objected to "physical removal of the minors for visits if they refuse to attend." Accordingly, the court also ordered "that no visit shall take place if the minors do not with [sic] to attend the visit."
The social worker then scheduled a visit between the minors and both parents. However, when the social worker arrived at the foster home to transport the minors, they refused to go. A short time later, J.S. agreed to participate in a therapeutic visit with mother, but before the visit could take place, J.S. changed her mind and was "completely unwilling to participate in any visitation."
In September 2009, father unsuccessfully demurred to the first amended petition. That same month, A.S. ran away from the foster home he shared with J.S. When he returned to the foster home, A.S. was under the influence of marijuana. Consequently, A.S. was removed from that foster home and placed in a respite care home. A.S. then ran away from the respite care home and was placed with a new foster family separate from J.S. On September 29, 2009, A.S. ran away from the new foster care family to an unknown location. Three days later, a protective custody warrant was issued for A.S.
On October 5, 2009, the Department filed a second amended section 300 petition alleging that neither J.S. nor A.S. wanted to return home, A.S. was defiant and running away, and both parents denied the abuse allegations. On October 6, 2009, the jurisdiction/disposition hearing was held on the second amended section 300 petition. At the hearing, the juvenile court found true the allegations in the second amended petition and assumed jurisdiction over the minors.
At the parties' request, although the children remained detained, the court ordered informal supervision pursuant to section 360, subdivision (b), but also ordered reunification services under section 361.5, subdivision (a). The court further ordered that all prior orders, presumably including the July 22 visitation order, remain in full force and effect.
As we note in the Discussion, post at Part I, this attempt at a hybrid dispositional order was arguably unauthorized and was certainly ill-advised.
Between October 19, 2009, and December 14, 2009, the court held five "15-day review hearings" pursuant to section 367, subdivision (d). At each of the hearings, the Department indicated A.S. was still missing. At the December 14, 2009 hearing, father asked that the issue of therapeutic visits with J.S. be put on calendar. The matter was set for hearing three days later.
At the hearing, minors' counsel indicated that J.S. was still refusing to see either of her parents. The Department reported that J.S.'s therapist was not recommending therapeutic visits at that time. The Department also suggested father and mother undergo mental health evaluations and release the information to J.S.'s therapist so the therapist "can have the information that the parents are able to effectively participate in therapy." Mother agreed to the evaluation. Father's attorney indicated that nothing warranted the request, but that he would discuss it with father.
The record is not clear as to whether any evaluation of either parent was ever conducted.
Approximately two weeks later, at the next 15-day review hearing, father and mother again requested therapeutic visits with J.S. Counsel for father and mother noted that the court had not made a finding that visitation would be detrimental to J.S. The matter was then continued to January 19, 2010.
At the January 19, 2010 hearing, minors' counsel requested a finding that visits with father and mother would be detrimental to J.S. Counsel produced a redacted letter from J.S.'s therapist reading: "It is my opinion that at this time it would be harmful to [J.S.] to begin visitations with the [parents]. She has not yet processed the situation where she believed [father] was inappropriate with her, and she states she feels extremely secure, and at home with her current foster placement. To disrupt her current security with fears of being placed back into a situation where she felt unsafe may halt her ability to work through her perception of what was happening to her while living with the [parents] as well as create a 'learned helplessness,' where one believes that one cannot control outcomes through one's actions, leading to passivity, decreased motivation, and depression."
On February 26, 2010, at the ninth 15-day review hearing, the juvenile court found, "by a preponderance of the evidence that visitation between the parents and [J.S.] would be detrimental to [J.S.'s] well being." This appears to be the first time this specific finding was articulated.
On April 2, 2010, A.S. appeared at the 15-day review hearing by telephone. A.S., now 15 years old, told the court he did not want to visit either of his parents. Three days later, the Department located A.S. and returned him to foster care.
On April 8, 2010, the Department filed a section 342 petition alleging the parents had failed to protect the minor children. The petition specifically alleged that the prior section 300 petition had been sustained and that services provided pursuant to section 360, subdivision (b) had been ineffective in ameliorating the situation that led to the Department's involvement. The petition further alleged the court had previously found visitation with the parents would be detrimental to J.S.; J.S. continued refusing to visit or communicate with her parents; A.S. had been "on the run"; and A.S. continued to be at risk for a "higher level of placement."
The applicable code section in this situation is section 332, not section 342. (See § 360, subd. (c).)
Four days later, the juvenile court held the detention hearing on the section 342 petition along with a further status review on the prior, second amended section 300 petition. A.S. appeared at the hearing. At A.S.'s request, the court ordered visitation between A.S. and the parents, supervised, two hours per week, and gave the Department discretion to increase the visitation. The court continued its order for no visitation between J.S. and father. A month later, the court ordered unsupervised visits between A.S. and father.
On July 9, 2010, the court held the jurisdiction/ disposition hearing on the section 342 petition. At that hearing, the juvenile court found true the allegations in the section 342 petition. The court further found by clear and convincing evidence that father and mother had made "considerable" progress toward alleviating or mitigating the problems that led to placement of the minors in foster care.
The court then adjudicated the minors to be dependents of the court pursuant to section 361, subdivisions (c) and (d). The court reaffirmed its prior finding that visits between the parents and J.S. would be detrimental to J.S., and granted the Department discretion to allow A.S. to have overnight visits with the parents. Although the court ordered individual and family counseling for both parents, the court did not specifically order conjoint counseling between the minors and their parents. It is from this dispositional order that father appeals, having filed notice on September 7, 2010.
DISCUSSION
I
Forfeiture
On October 6, 2009, at the original jurisdiction/ disposition hearing for the second amended section 300 petition, the parties jointly requested and the juvenile court agreed to order informal supervision, even though the children remained detained. The court also continued existing visitation and counseling orders.
Arguably, informal supervision under section 360, subdivision (b), cannot be ordered while children remain detained, as they were in this case. This is because, in part, the juvenile court cannot make further orders following an order of informal supervision unless and until the children return to court pursuant to a section 332 petition filed on their behalf. (See § 360, subd. (c); In re Adam D. (2010) 183 Cal.App.4th 1250, 1259-1260.) We decline to opine on the propriety of the order in this case, because the parties invited any error by first stipulating to the "hybrid" disposition and then repeatedly asking the trial court to issue further orders, and because the issue was not raised in the appellate briefs. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 390, pp. 448-449 [invited error], § 701, pp. 769-770 [forfeiture of points not briefed].)
We requested and received supplemental briefing on an issue not initially addressed by either party--whether an order under section 360, subdivision (b), is tantamount to disposition and thus an appealable order. (See In re Adam D., supra, 183 Cal.App.4th at p. 1260.) We conclude that it is; thus father has forfeited his claims by failing to file a timely notice of appeal from the entry of the challenged orders.
"A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment." (§ 395, subd. (a)(1).) "In a section 300 proceeding, the order entered at the dispositional hearing is a final judgment. . . ." (In re Daniel K. (1998) 61 Cal.App.4th 661, 666.) The notice of appeal must be filed 60 days after the juvenile court enters a final, appealable order. (Cal. Rules of Court, rule 8.406(a)(1) & former rule 8.400(d); see also In re Daniel K., supra, 61 Cal.App.4th at p. 666.)
"A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.'" (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) "In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)
In In re Adam D., supra, 183 Cal.App.4th 1250, the appellate court explained that, as a dispositional alternative, section 360, subdivision (b), permits juvenile courts to issue an order for informal supervision instead of declaring the child a dependent of the court. (In re Adam D. , supra, at p. 1259.)
When informal supervision is ordered, the juvenile court "'does not dismiss the dependency petition or otherwise set it aside. The true finding of jurisdiction remains. It is only the dispositional alternative of declaring the child a dependent that is not made.'" (In re Adam D., supra, 183 Cal.App.4th at
p. 1260 [internal citation omitted].) Thus, if the family is unwilling or unable to participate in the services provided, the Department may institute proceedings under section 332 and allege "'that a previous petition has been sustained and that informal supervision was ineffective. (§ 360, subd. (c).)'" (In re Adam D., supra, at p. 1260.) The Department may then proceed to disposition on the subsequent section 332 petition and have the child adjudicated a dependent of the court. (Ibid.)
If, however, the parents cooperate with the Department and informal supervision is successful, the Department "is unlikely to petition for reinstatement under section 360, subdivision (c) which, if granted, will permit the case to proceed directly to disposition." (In re Adam D., supra, 183 Cal.App.4th at p. 1260.) Under such circumstances, the juvenile court's jurisdictional finding would be insulated from review. (Ibid. ) To avoid such a result, the Adam D. court concluded that an "order for informal supervision under section 360, subdivision (b) must be seen as tantamount to a disposition." (Ibid.)
We agree and therefore construe the juvenile court's October 6, 2009, order for informal supervision under section 360, subdivision (b) (October 6 order) to be a disposition order. Accordingly, that order was appealable. (In re Daniel K. , supra, 61 Cal.App.4th at p. 666.) Any claims regarding error in visitation and counseling orders in place at that hearing should have been raised in an appeal from the October 6 order. They were not; consequently, they are forfeited.
Because the October 6 order was appealable as a disposition order, the juvenile court's subsequent orders were appealable as orders after judgment. (In re Daniel K. , supra, 61 Cal.App.4th at p. 666.) Here, the juvenile court entered its order finding detriment on February 26, 2010 (the February 26 order); father filed his notice of appeal on September 7, 2010, nearly six months later.
Because the February 26 order was an appealable order, father's claims regarding the court's finding of detriment are forfeited by his failure to file a timely notice of appeal. Similarly, father's claim that the court's finding of detriment was not supported by substantial evidence also should have been raised in an appeal from the February 26 order. (In re Daniel K., supra, 61 Cal.App.4th at p. 666.) Father cannot resurrect these claims by filing a timely notice of appeal from the disposition order on the later section 342 petition. (People v. Ramirez, supra, 159 Cal.App.4th at p. 1421.) Accordingly, these claims are forfeited.
II
Substantive Analysis
In any event, father's claims fail when considered on their merits.
A. Initial Denial of Visitation
Although there was a formal visitation order in place from June 22, 2009, until the finding of detriment for J.S. which was contained in the February 26 order, because the court had further ordered that the children not be forced to visit their parents, and the children refused to visit with their parents, there were no visits during that time period.
Based on this lack of visits, father contends the trial court "denied visitation" with the children for "almost a year" before finding visitation would cause J.S. detriment. Father, however, has failed to show he was prejudiced by the court's delay in finding detriment.
The children were first detained from these parents on June 5, 2009; the first detriment finding was made in the February 26 order; thus the delay was actually one of approximately eight and one-half months. Further, A.S. was missing during most of this time period. Thus, no order for visitation would have been effective to ensure father visited with A.S.
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From the day J.S. was removed from the family home, she maintained that she was touched inappropriately by father and did not want to visit with either of her parents, and claimed that she was uncomfortable with them. This continuing sentiment was the basis for the court's decision when, with the February 26 order, it found visitation between J.S. and the father would be detrimental to J.S.
On this record, we conclude father has failed to show it is reasonably probable a result more favorable to him would have been reached had the detriment determination been made earlier. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.) There was no miscarriage of justice. (Cal. Const., art. VI, § 13; In re Laura H. (1992) 8 Cal.App.4th 1689, 1696; In re Jason L. (1990) 222 Cal.App.3d 1206, 1218-1219.)
B. Finding of Detriment
Father also contends the juvenile court's finding of detriment is not supported by the evidence. We disagree.
A substantial evidence standard of review applies to the juvenile court's finding of detriment on appeal. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881; In re Corey (1964) 230 Cal.App.2d 813, 823-824.)
Here, the juvenile court found true the allegations that J.S. witnessed father physically abusing A.S. J.S. consistently expressed fear of her parents and the court found her fear to be honest and compelling. Such evidence, particularly when supplemented by the opinion of J.S.'s counselor that J.S. was not emotionally ready to visit father, is sufficient to support the court's finding of detriment. (See In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357-1358 [the children's adamant refusal to visit the parents, unwavering fear of abuse, and prior emotional turmoil from supervised visits was sufficient to establish detriment in order to suspend visitation].)
C. Conjoint Counseling
Father further contends the juvenile court abused its discretion by failing to order conjoint counseling to facilitate visitation. We are not persuaded.
At the time the court declined to order conjoint counseling, it had already ruled that visitation with father would be detrimental to J.S. In the five months between that finding and the challenged order in July 2010, J.S. continued in her therapy; she also became "more engaging and talkative." She described feeling "very comfortable" in her foster placement, and she was doing well in school.
In a letter to the court, J.S.'s therapist expressed her opinion that J.S. still was not ready for visitation with father, therapeutic or otherwise. That opinion was based on J.S.'s unwavering refusal to visit father, which she saw as "an unmistakable indication of the level of discomfort [J.S.] feels toward [father]." In addition, the therapist, who spoke with father's treating physician, was concerned that father still did not understand why the way he touched J.S. was inappropriate. The therapist further explained that, while J.S.'s ability to set boundaries and discuss things that made her uncomfortable was improving, it was evident to the therapist that J.S. did not have the level of trust or comfort with father or mother to discuss such things with them.
Despite J.S.'s continued refusal to see either of her parents, the court noted both parents had made "considerable progress" in their services. Accordingly, the court authorized mother to start visiting J.S. The court also indicated it would "really like to see visitation start between [father], [mother], and [J.S.]" and believed that visitation between J.S. and mother was a good step toward that goal. Under the circumstances, we conclude the court did not abuse its discretion in declining to order conjoint counseling.
DISPOSITION
The orders of the juvenile court are affirmed.
DUARTE, J. We concur: BLEASE, Acting P. J. BUTZ, J.