In re T.G., A Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. NATASHA B., Defendant and Appellant.
No. A144548
Court of Appeal, First District, Division Four, California
Dec. 2, 2015
242 Cal. App. 4th 976
Mary R. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Donna Ziegler, County Counsel, Melinda L. Capozzi and Miruni Soosaipillai, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
REARDON, J.---In this dependency appeal, Natasha B. (mother) seeks relief from the juvenile court order terminating her parental rights with respect to her youngest daughter, T.G. (born June 2013), pursuant to
Mother argues that bypassing her reunification sevices was improper because the orders terminating services and parental rights with respect to T.G.‘s half siblings were on appeal at the time of T.G.‘s dispositional hearing and therefore could not provide an appropriate basis for bypass. She further asserts that since the juvenile court‘s bypass decision was based on a patent legal error which violated her due process rights she has not forfeited the
I. BACKGROUND
T.G., the minor who is the subject of these proceedings, was detained by the Alameda County Social Services Agency (Agency) on June 10, 2014, when she was 11 months old. In its petition filed two days later, the Agency alleged that T.G. was at substantial risk of harm because mother‘s numerous emotional, mental health, and substance abuse problems interfered with her ability to properly care for the minor. The petition referenced a number of recent examples of mother‘s neglect. For instance, on May 29, 2014, mother called staff at the shelter where she was staying and asked them to pick her up at a BART (Bay Area Rapid Transit) station because she was unable to make her way home. When a staff member arrived, mother appeared quite intoxicated and was sitting on the curb with T.G. in a stroller next to her. The staff member had to help mother stand and navigate the stroller because mother was unable to push the baby. On June 2, 2014, mother, who again appeared intoxicated, reported to shelter staff that she had had an altercation with a store owner while T.G. was in her care. According to mother, the store owner pulled her hair and she ripped his pants pocket, causing a wad of bills to fall out. Mother then stole the $900 and fled down the street with T.G. in the stroller. That same day, mother was observed yelling and cursing at T.G. while doing her hair. On June 3, 2014, shelter staff had to intervene when mother, who admitted she was again intoxicated, vomited on herself and T.G. Finally, mother has a history of marijuana use, and, according to staff, she smelled of marijuana while caring for T.G.
Sadly, mother was, herself, involved with the child welfare system as a minor, with 45 referrals involving the maternal grandmother‘s substance abuse and mental health issues dating back to 1988. The family received services from March 1994 through October 1996 and from April through August 1999. In 2007, when she was 16 years old, mother was briefly taken into protective custody after a physical altercation with the maternal grandmother. Mother was reported to be difficult to manage and associated with older individuals who would buy her alcohol. She was threatening to people at school-breaking someone‘s nose, almost breaking someone‘s jaw, and breaking three of her teacher‘s teeth.
Mother also had a history of psychiatric hospitalizations, with seven admissions prior to 2006. She had been involuntarily detained pursuant to
In March 2014, mother was referred for voluntary services after it was reported that T.G. had three large scrapes on her bottom and that mother did not have stable housing. Although mother was referred for numerous services, including services through the local Regional Center, she failed to follow through. Moreover, despite assistance from both the Agency social worker and her case manager from Through the Looking Glass, a resource center for parents with disabilities, mother had failed to secure stable housing.
Also of significance to the disposition in this case, mother has two older daughters-C.B. (born Mar. 2010) and J.M. (born Feb. 2011)-who were removed from her care in March 2012 due to allegations of neglect. According to the operative petition in this sibling case, the two minors were at substantial risk of harm because mother‘s criminality, housing instability, mental health issues, and substance abuse impacted her ability to adequately care for and protect them. For instance, in July 2011, mother was arrested for child endangerment (
As for T.G., she was formally detained in the home of her paternal grandmother on June 13, 2014.4 Father supported placement with the paternal grandmother. He reported concerns about mother‘s ability, but would not go into detail. According to the Agency, mother had shown “an inability to protect the minor when she engages in substance abuse, criminal activity, and/or her violent behaviors, all with the minor in her presence and care.” Moreover, in the Agency‘s opinion, mother‘s developmental delays impacted her ability to make appropriate decisions and properly parent T.G.
While jurisdiction and disposition were pending, mother did complete an assessment with the local Regional Center, and her case manager planned to refer her to the center‘s independent living program (ILP). Mother also entered a residential treatment program in July 2014, but left after two days. Staff reported that she was getting into arguments with other clients and was not willing to abide by the rules of the program. Thereafter, she claimed to be receiving counseling and substance abuse treatment through a local clinic, but failed to provide the requested contact information so that this could be verified. In October 2014, mother‘s ILP worker reported that mother had left her several messages in which she sounded intoxicated. When the social worker asked mother about this report, mother became angry, yelling and swearing. Further, when the social worker suggested that mother could clear up the matter through drug testing, mother declined. At that point, mother was living in a homeless shelter. She had not been participating in Regional Center services.
Although mother had originally contested both jurisdiction and disposition-and the proceedings were therefore continued repeatedly-when the hearing was actually held on November 4, 2014, mother withdrew her request for a contest and submitted both matters. The juvenile court therefore found
In its report filed in advance of the permanency planning hearing, the Agency recommended that T.G. be adopted by the paternal grandmother. Father was apparently in favor of this outcome. Mother had been visiting T.G. irregularly in the home of the paternal grandmother, despite the Agency‘s offer of assistance with transportation and a set visitation schedule. On December 7, 2014, mother showed up unexpectedly and, after the grandmother agreed to supervise a visit in front of the house, mother exclaimed: “You‘re not going to take my child from me.” She also screamed and cursed at the grandmother, threatening to have people come to the home. Although mother later called to apologize, mother‘s supervised visitation was moved to a neutral setting. In the opinion of the Agency, mother continued to struggle with the same issues that led to T.G.‘s removal and had a “years-long history of being unable to care for her children, even with many supportive services from the Agency and elsewhere.”
At the permanency planning hearing on February 26, 2015, mother testified in opposition to the Agency‘s recommendation. She indicated that she had been taking parenting classes and receiving drug and alcohol education. Mother also stated that she was attending Narcotics Anonymous meetings, participating in Regional Center services, and visiting with T.G. She continued to look for housing. Mother described her relationship and ongoing contact with T.G., and her attorney argued that mother‘s parental rights should not be terminated based on the beneficial relationship exception to adoption-that is, that mother had consistently visited with the minor and the child would benefit from continuing the relationship. (
Nevertheless, at the conclusion of the permanency planning hearing, the juvenile court found T.G. adoptable, declined to apply the beneficial relationship exception to block T.G.‘s proposed adoption, and terminated the parental rights of both mother and father. In reaching this decision, the court noted that the case involving T.G.‘s half siblings was on appeal and needed to be followed by all of the parties because the appellate decision “could have ramifications” in T.G.‘s case that would need to be addressed. Mother‘s timely notice of appeal brought the matter before this court.
A. Forfeiture Issues
Mother contends that reversal is required in this case due to multiple errors in the dependency proceedings involving T.G.‘s half siblings (C.B. and J.M.), matters which were pending before this court at the time she briefed the present appeal. Since we recently rejected all of these claims, upholding the juvenile court‘s decision to terminate mother‘s parental rights with respect to C.B. and J.M. (In re C.B., supra, A142238), these arguments are no longer available to mother. Thus, her sole remaining theory in this case is that the juvenile court erred as a legal matter when it bypassed reunification services for her based on the orders terminating services and parental rights with respect to T.G.‘s half siblings, because those orders were on appeal, and therefore not final, at the time of T.G.‘s dispositional hearing.
It is undisputed, however, that mother did not object in the juvenile court on this basis. Rather, she submitted the matter of T.G.‘s disposition to the juvenile court for its determination. Generally, such a failure forfeits a parent‘s right to pursue the issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2 (S.B.), superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962; In re Dakota S. (2000) 85 Cal.App.4th 494, 502; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-413.) Indeed, although an appellate court has the discretion to excuse such forfeiture, it should do so “rarely and only in cases presenting an important legal issue.” (S.B., supra, 32 Cal.4th at p. 1293.) This is especially true in juvenile dependency cases, which involve the well-being of children and in which “considerations such as permanency and stability are of paramount importance.” (Ibid.)
Moreover, in the present case, mother has arguably doubly forfeited the issue she is now attempting to raise because, not only did she fail to bring it to the juvenile court‘s attention, she also neglected to seek timely appellate review of the matter in this court. Generally speaking, “an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 (Meranda P.).) The purpose of this rule is to balance the parents’ interest in the care and custody of their children with the children‘s interest in the expeditious resolution of their custody status. (In re M.F. (2008) 161 Cal.App.4th 673, 681-682 (M.F.).)
Again, however, this forfeiture rule is not absolute. Rather, it must not be applied if “due process forbids it.” (In re Janee J. (1999) 74 Cal.App.4th 198, 208 (Janee J.).) Generally, the forfeiture rule does not infringe upon a parent‘s due process rights because of the numerous safeguards built into the dependency system. (M.F., supra, 161 Cal.App.4th at p. 682.) Thus, application of the rule has only been found inappropriate on due process grounds when an error so “fundamentally undermined the statutory scheme” that the parent was prevented from availing himself or herself of its protections. (Janee J., supra, 74 Cal.App.4th at p. 208.) Moreover, “defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed.” (Id. at p. 209.)
Mother, of course, argues that this is a case in which her procedural failures should be excused. Specifically, she contends that the error she complains of was legal in nature and was entirely fundamental to her case, depriving her of the many due process protections she would otherwise have enjoyed during the reunification period. We agree that bypassing reunification services for a parent is an extreme decision that has significant ramifications for both parent and child. (See Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 98 (Cheryl P.) [” ‘The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case. To the contrary, the primary focus of the trial court must be to save troubled families, not merely to expedite the creation of what it might view as better ones.’ “].) On the other hand, permitting a parent “to raise issues which go to the validity of a final earlier appealable order would directly undermine [the] dominant concerns of finality and reasonable expedition” underlying all juvenile dependency proceedings. (Meranda P., supra, 56 Cal.App.4th at p. 1152.) Ultimately, however, we need not decide whether relaxation of the forfeiture rule is appropriate under the facts of this case. Rather, we conclude that the
B. Validity of Bypass Order Under Subdivision (b)(10)
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to “the child and the child‘s mother and statutorily presumed father.” (
The statutory sections authorizing denial of reunification services are sometimes referred to as “bypass” provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.) In the present case, the juvenile court denied reunification services to mother based on two such bypass provisions, subdivisions (b)(10) and (11) of
We review an order denying reunification services under subdivision (b) of
As stated above, mother argues here that bypassing reunification services was improper because the orders terminating services and parental rights with respect to T.G.‘s half siblings were on appeal at the time of T.G.‘s dispositional hearing and therefore could not provide an appropriate basis for bypass. However, pursuant to
Although it does not directly address the issue of finality, In re Harmony B. (2005) 125 Cal.App.4th 831 (Harmony B.) is instructive. In that case, the juvenile court denied reunification services to the parents pursuant to subdivision (b)(10) of
The Harmony B. court disagreed, stating with respect to the first prong of the
Moreover, even were we to hold that finality was required in this case-or was simply preferable when analyzing T.G.‘s best interests-we disagree with mother‘s characterization of the order terminating reunification services as nonfinal at the time of T.G.‘s November 2014 dispositional hearing. As explained above, an unappealed postdispositional order is “final and binding and may not be attacked on an appeal from a later appealable order.” (Meranda P., supra, 56 Cal.App.4th at p. 1150.) Here, because the June 2013 order terminating services for C.B. and J.M. was made during a hearing at which a
She argues, however, that the finality of the juvenile court‘s order terminating services was somehow undermined when she subsequently filed a petition under
First, we note that mother‘s 388 petition sought renewed reunification efforts based on a change in circumstances-her demonstrated ability to successfully parent T.G. with supportive services from Through the Looking Glass-and the current best interests of the minors C.B. and J.M. As such, it presented no argument which would undermine the validity of the juvenile court‘s prior order terminating services. In particular, it was not an appropriate vehicle to attack the court‘s prior reasonable services finding and, as a factual matter-despite mother‘s appellate arguments to the contrary-it did not do so. (Meranda P., supra, 56 Cal.App.4th at p. 1150 [an unappealed dispositional order may not be attacked in an appeal from a later appealable order].)
Rather, under entirely different legal standards than those confronted by a juvenile court when terminating services, it sought to convince the juvenile court that further efforts at reunification were now in the best interests of C.B. and J.M. But, as the Harmony B. court recognized, whether mother ultimately reunified with C.B. and J.M. is simply irrelevant under the first prong of the
We therefore conclude that the juvenile court‘s bypass order under subdivision (b)(10) of
III. DISPOSITION
The judgment is affirmed.
Ruvolo, P. J., and Streeter, J., concurred.