In re M.H. CA2/4 ( 2016 )

Filed 2/4/16 In re M.H. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re M.H. et al., Persons Coming Under B260541
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK00787)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent;
TRACY J.,
Respondent
v.
STEVEN H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn
Kading Martinez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Dismissed.
Anthony D. Zinnanti, under appointment by the Court of Appeal, for Defendant
and Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and
Respondent.
Pamela Rae Tripp, under appointment by the Court of Appeal, and Ernesto Paz
Rey, for Respondent Tracy J.
INTRODUCTION
In this juvenile dependency case, Steven H. (father) challenges a restraining order
entered on May 30, 2014 against him, protecting his three children and their mother,
respondent Tracy J. (mother). Father filed a first appeal, In re M.H. (B258028), directly
from the restraining order. While that appeal was pending, the dependency proceedings
continued below, and the dependency court ultimately issued a disposition order
reflecting a stipulated agreement by the parties. That agreement and order granted full
custody of the children to mother and also included a modification to the restraining order
regarding visitation. Father filed the instant appeal from the disposition order, largely
challenging the original terms of the restraining order for a second time. He then
dismissed his first appeal as moot. Mother contends that his second appeal is untimely to
the extent it challenges the restraining order. We agree. Further, to the extent father
asserts a challenge to the custody provisions of the disposition order, that claim has been
forfeited. We therefore dismiss this appeal.
FACTS AND PROCEDURAL BACKGROUND
We relate herein only the background information necessary to resolve the
timeliness and forfeiture issues presented.
A. Section 300 Petition and First Appeal
On September 6, 2013, Los Angeles County Department of Children and Family
Services (DCFS) filed a juvenile dependency petition under Welfare and Institutions
Code section 300, subdivisions (a), (b) and (j),1 on behalf of M.H. (born 2004), and twins
Le.H. and Lo.H. (born 2007) (collectively, the children).2 As later sustained, the petition
1Statutory references herein are to the Welfare and Institutions Code unless
otherwise indicated.
2The majority of evidence in this matter is included in the record of father’s first
appeal. On our own motion, we take judicial notice of the record of father’s first appeal.
(Evid. Code § 452, subd. (d); see also Lang v. Roche (2011) 201 Cal. App. 4th 254, 257,
fn. 1 [“We take judicial notice of the prior appeals because they are related prior
proceedings leading to the present appeal. [Citations.].]) We also grant father’s request
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alleged that father had “violated the boundaries” of the children, mother, and mother’s
adult daughter, B.J., including by “grabbing the children’s arm[s] and leaving bruises,
physically disciplining [them] with a paddle, locking the kitchen pantry precluding access
to food, and forcing a sexual encounter” with mother. Mother reported to DCFS that she
was in the process of getting a divorce from father and had obtained a temporary
restraining order (TRO) preventing father’s contact with mother or the children. In brief,
mother alleged that father had raped her in May 2013, had threatened to physically harm
her and her boyfriend, Larry C., and had a “long history of physically abusing the
children.” In interviews with DCFS, the children stated that they were afraid of their
father and that he would yell at them and spank them using a paddle.
Mother’s initial application for a TRO against father was granted on July 24, 2013
by the family law court, protecting mother, the children, and B.J. After the dependency
petition was filed, the hearing on the permanent restraining order was transferred to the
dependency court. After attempts by the parties at mediation and several continuances,
the hearing on the restraining order began on March 26, 2014. The dependency court
acknowledged that much of the delay was due to its overly congested calendar, but found
a sufficient basis to extend the TRO over father’s objection. Testimony continued on
multiple days over the following two months.
The jurisdictional hearing, including the conclusion of testimony regarding the
restraining order, was held on May 30, 2014. Father stipulated to jurisdiction based on
the amended section 300 petition. Accordingly, the court sustained the petition, ordered
the children to remain released to mother, and set the matter for a contested disposition
hearing.
The dependency court also made findings of fact regarding the restraining order,
including expressly finding mother’s testimony credible, B.J.’s testimony “very
credible,” and father’s testimony “not credible.” The court issued a three-year restraining
that we take judicial notice of the docket of the first appeal. (Evid. Code § 452, subd.
(d).)
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order against father, protecting mother, the children, and B.J., and allowing father
monitored visitation of one hour per week.
Father timely filed a notice of appeal on July 29, 2014 from the court’s entry of
the restraining order (first appeal).
B. Disposition and Second Appeal
While father’s first appeal was pending, the dependency court granted father’s
request to continue the disposition hearing for 45 days (to October 24, 2014) as he had
retained new counsel. On October 8, 2014, at a pretrial conference, the court noted that
the parties had reached an agreement granting mother full legal and physical custody of
the children, with continued monitored visitation for father. As a result, the court found
by clear and convincing evidence pursuant to section 361, subdivision (c), that
“substantial danger exists to the children and there is no reasonable means to protect them
without removing them from their father’s custody.” Father did not object.
On October 14, 2014, father filed a request for a hearing for orders to, among
other things, vacate the court’s October 8, 2014 order removing the children from father’s
custody and granting full custody to mother. Father argued that mother had violated their
agreement, including by failing to deliver the children for their monitored visitation with
father.
The parties engaged in further settlement discussions and ultimately reached an
agreement regarding the terms of a proposed custody order and final judgment. At the
disposition hearing on October 24, 2014, the court recognized the parties’ agreement and
entered the order granting full custody to mother, visitation to father, and termination of
dependency jurisdiction. The court further ordered that the “existing restraining order be
modified” to reflect the agreed-upon visitation order. The court signed form JV-257
(Change to Restraining Order After Hearing) reflecting a modified visitation order.3 The
court also acknowledged father’s earlier filing seeking to set aside prior orders, noting
that it appeared to be moot given the parties’ agreement, “but at any rate, I do deny that
3The
precise terms of the modification to father’s visitation are not contained in
the record, but it appears the parties agreed to allow more frequent visits.
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request.” Father raised no objection to any of the terms of the court’s orders. On
November 24, 2014, father filed an appeal from the orders entered October 24, 2014,
“specifically, that portion of the order incorporating the CLETS restraining order, as
amended.”
Father then filed a request to dismiss the first appeal as moot on December 17,
2014. We accordingly dismissed that case on January 2, 2015.
DISCUSSION
A. Timeliness of Appeal Challenging Restraining Order
Mother contends that while father’s first (now dismissed) appeal of the restraining
order was timely, his current appeal is not, and therefore must be dismissed. We agree.
“Compliance with the time for filing a notice of appeal is mandatory and
jurisdictional. [Citation.] If a notice of appeal is not timely, the appellate court must
dismiss the appeal.” (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal. App. 4th
579, 582; see also California Rules of Court, rule 8.104, subd. (b) [“[N]o court may
extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing
court must dismiss the appeal.”].)
A challenge to a restraining order issued in a juvenile dependency proceeding “is
subject to review on direct appeal from the order granting the restraining order.” (In re
Cassandra B. (2004) 125 Cal. App. 4th 199, 208 (Cassandra B.); see also Code Civ. Proc.,
§ 904.1, subd. (a)(6); Brydon v. City of Hermosa Beach (1928) 93 Cal. App. 615, 620
[“the intent of the statute is that all orders granting or refusing injunctions, whether
temporary or permanent or provisional pending appeal, shall be appealable”].) A notice
of appeal must be filed within 60 days after the juvenile court makes an appealable order.
(Cassandra B., supra, 125 Cal.App.4th at p. 208; see also § 395, subd. (a)(1); Cal. Rules
of Court, rule 8.400, 8.406, subd. (a)(1).)
Thus, because the dependency court’s issuance of the restraining order on May 30,
2014 was directly appealable, father’s challenge to the restraining order had to be filed
within 60 days of that order. Father’s first appeal, filed on July 29, 2014, was within the
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statutory time limit to challenge the issuance of the restraining order. His second appeal,
filed on November 24, 2014, was not.
While father’s briefs do not directly respond to the timeliness challenge raised by
mother, he appears to argue that his current appeal was timely because it was taken from
the “final incarnation of the restraining order” as amended and attached to the court’s
October 24, 2014 disposition order. Without further explanation, father cites Cassandra
B., supra, 125 Cal.App.4th at p. 208, to support this contention. In fact, Cassandra B.,
decided under very similar circumstances, illustrates why dismissal is required here. In
Cassandra B., as here, the appellant filed two separate appeals to challenge the issuance
of a restraining order. First, the mother filed a direct appeal from the restraining order.
Then, she filed a second appeal from the dependency court’s dispositional order, which
maintained the restraining order and modified it as to visitation. (Id. at pp. 203, 207.)
The court of appeal held that mother’s second appeal was untimely, as it was filed more
than 60 days following entry of the original restraining order. (Id. at pp. 208-209.) As
the court concluded, “‘“[a]n 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.” [Citations.]’” (Ibid.)
Further, the modification to the restraining order does not extend father’s time to
challenge the issuance of the original order. As a general rule, courts allow an appeal
from an order modifying an injunction only where: “(1) the later orders have modified an
injunction “in important particulars” and the appeal challenges the modifications; or (2)
the appeal may have been timely even if taken from the original injunction; or (3) the
appellant contested the procedures by which the injunction was modified.” (Malatka v.
Helm (2010) 188 Cal. App. 4th 1074, 1083 [citations omitted].) Courts have accordingly
dismissed appeals of modifications to restraining orders where, as here, the appellant did
not challenge the modification, but rather, the original issuance of the order. (See, e.g.,
id. at p. 1084 [holding that to the extent appeal of modified restraining order “presents
issues that could have been raised in an appeal from the original restraining order, those
issues are not reviewable in this appeal”]; Cassandra B., supra, 125 Cal.App.4th at pp.
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208-209; cf. Lister v. Bowen (2013) 215 Cal. App. 4th 319, 330 [second appeal timely
because “the trial court’s reduction of the length of the new restraining order from five to
three years was a material or substantial modification”].)
Here, both appeals by father challenged the original bases for the restraining order.
In the instant appeal, father argues that: (1) the dependency court’s extreme delay of
almost a year before issuing the permanent restraining order was in excess of the court’s
jurisdiction and the resulting order was therefore void; (2) there was insufficient evidence
to extend the restraining order to the children; (3) the restraining order was based on
inadmissible evidence and improper evidentiary rulings; and (4) the “cumulative error”
from the proceedings rendered them “fundamentally unfair” and warrants reversal of the
restraining order. At no point does father challenge the modification regarding visitation
made to the restraining order in October 2014; indeed, he stipulated to those terms. As
such, because the instant appeal seeks to challenge the restraining order issued on May
30, 2014, it must be dismissed as untimely.
B. Forfeiture of Custody Issues
Mother and DCFS further contend that any issues raised by father regarding the
custody award were forfeited by his stipulation to those terms and his failure to object
below. We agree.
It is unclear from the record whether father is seeking to appeal any aspects of the
dependency court’s custodial order. His notice of appeal narrowly identifies the portion
of the disposition order at issue as “that portion of the order incorporating the CLETS
restraining order, as amended.” On the other hand, in his opening brief, father argues that
the dependency court erred by granting physical custody of the children to mother
“without consideration of the factors set forth in Family Code, section 3044.”
“‘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 [].) A party may
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not assert theories on appeal that were not raised in the trial court. (Fretland v. County of
Humboldt (1999) 69 Cal. App. 4th 1478, 1489 [].)” (Kevin R. v. Superior Court (2010)
191 Cal. App. 4th 676, 686.) Father does not dispute that he failed to raise this objection
before the court below or that he stipulated to the terms that became the court’s custodial
order. Accordingly, we conclude that, to the extent father is challenging the order
granting custody to mother, he has forfeited the right to raise this issue on appeal.
DISPOSITION
Dismissed.4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
4 On February 1, 2016, we received father’s Notice of Motion and Motion for
Orders regarding Respondent’s Distribution of Confidential Briefs and Materials. We
have determined that the allegations within the motion are not appropriate for appellate
review. The relief requested in the proposed order is denied without prejudice to renewal
of father’s request before the trial court.
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