In re Joseph J. CA5 ( 2014 )

Filed 9/3/14 In re Joseph J. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re JOSEPH J., a Person Coming Under the
Juvenile Court Law.
KINGS COUNTY HUMAN SERVICES F069170
AGENCY,
(Super. Ct. No. 12JD0063)
Plaintiff and Respondent,
v. OPINION
ROGER S.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. James
LaPorte, Judge.
Valerie Newton Lankford, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Kane, Acting P.J., Detjen, J. and Franson, J.
Roger S. (father) appeals from a February 2014 order terminating parental rights
(Welf. & Inst. Code, § 366.26) to his two-year-old son, Joseph.1 After reviewing the
entire record, father’s court-appointed appellate counsel informed this court she could
find no arguable issues to raise on father’s behalf. Counsel requested and this court
granted leave for father to personally file a letter setting forth a good cause showing that
an arguable issue of reversible error does exist. (In re Phoenix H. (2009) 47 Cal.4th 835,
844 (Phoenix H.).)
Father has since submitted a letter in which he faults respondent Kings County
Human Services Agency (agency) for the loss of his parental rights. According to father,
the agency wrongfully used evidence about his past to take Joseph away from him and
then failed to work with him towards reunification. Father also characterizes the
termination of his parental rights as unconstitutional.
As discussed below, we will dismiss the appeal as father has failed to make a
good cause showing that any arguable issue of reversible error at the termination hearing
does exist. (Phoenix H., supra, 47 Cal.4th at p. 844.)
PROCEDURAL AND FACTUAL SUMMARY
A combination of parental drug abuse and domestic violence led the agency to
initiate dependency proceedings for infant Joseph in the summer of 2012. In particular,
the parents had a violent altercation in Joseph’s presence in July 2012, which led to
father’s arrest and incarceration.
In September 2012, father submitted to a petition, alleging multiple grounds for
Joseph’s dependency (§ 300, subd. (b) & (g)), on the basis of an agency social worker’s
reports and waived his rights. The juvenile court in turn exercised its dependency
jurisdiction over Joseph, adjudged him a dependent and removed him from parental
custody. As part of its dispositional order, the court also ordered the agency to provide
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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the parents with reunification services. Father’s reunification case plan required him to
participate and complete programs in parenting, domestic violence and substance abuse.
It also entitled him to supervised visitation with Joseph. Father did not appeal the
dispositional order.
Within two months of the juvenile court’s dispositional order, a criminal court
sentenced father to serve an eight-year prison term as a result of his attack on Joseph’s
mother. Father was not expected to be released before the fall of 2019.
Despite a 12-month reunification effort, it was undisputed that the parents neither
participated regularly nor made substantive progress in court-ordered treatment programs.
At a review hearing in September 2013, the juvenile court found the agency complied
with the case plan in making reasonable efforts to return Joseph to a safe home, but the
parents made no progress toward alleviating the causes requiring the child’s out-of-home
placement.
As a consequence, the juvenile court terminated reunification services for the
parents and continued visitation according to the permanency case plan, which it adopted.
According to that case plan, there would be once-a-month visitation if the parent was not
incarcerated. The court also set a hearing to select and implement a permanent plan for
Joseph (a section 366.26 hearing). The court concluded the September 2013 hearing by
giving father notice of his right to seek writ review of its order setting the section 366.26
hearing. Father did not pursue writ relief from the setting order.
At the section 366.26 hearing, the juvenile court received into evidence agency
reports describing the likelihood that Joseph would be adopted if parental rights were
terminated. Father argued against termination.
Father testified he loved Joseph and had cared for him during the first few months
of the child’s life until father’s July 2012 arrest. He had visits with Joseph through an
electronic television camera. Visits stopped after reunification services were terminated.
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Father claimed he was not told why. Father wanted to be part of Joseph’s life once he
was released from prison.
The juvenile court found Joseph was likely to be adopted and terminated parental
rights.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is up to an appellant to raise claims of reversible
error or other defect and present argument and authority on each point made. If an
appellant does not do so, the appeal should be dismissed. (In re Sade C. (1996) 13
Cal.4th 952, 994.) Here, father does not raise any claim of judicial error or other defect
against the termination order from which he appeals.
Once reunification services are ordered terminated, the focus shifts to the needs of
the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) At
a parental rights termination hearing, the court’s proper focus is on the child to determine
whether it is likely he will be adopted and if so, order termination of parental rights.
(Ibid.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed,
the court must order adoption and its necessary consequence, termination of parental
rights, unless one of the specified circumstances provides a compelling reason for finding
that termination of parental rights would be detrimental to the child. (In re Celine R.
(2003) 31 Cal.4th 45, 53.)
Here, father made no showing of a beneficial relationship between him and Joseph
that was so compelling as to establish that termination would be detrimental to the child.
Instead on appeal, father attempts to shift the blame for the termination of his
rights onto the agency. To the extent father finds fault with the agency’s efforts prior to
the September 2013 order terminating services and setting the section 366.26 hearing, he
has forfeited those complaints in this appeal.
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In September 2012, father submitted to and did not dispute the agency’s evidence
supporting the juvenile court’s orders exercising dependency jurisdiction over Joseph and
removing him from parental custody. Father also did not appeal from the juvenile court’s
September 2012 orders. As a result, he cannot complain now about the removal of
Joseph from his custody. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563 [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].)
The following year, in September 2013, father submitted to and did not dispute the
agency’s evidence that he neither participated regularly nor made substantive progress in
court-ordered treatment programs. He also did not seek writ review of the juvenile
court’s September 2013 setting order, which included its finding that the agency
complied with the case plan in making reasonable efforts to return Joseph to a safe home
and its order authorizing no future visitation if the parent was incarcerated. By not
seeking writ relief from the setting order, he forfeited the right to dispute the agency’s
efforts on appeal from the parental rights termination order. (§ 366.26, subd. (l).) This
includes any implicit complaint about the lack of visitation after the setting order.
Father also characterizes the termination of his parental rights as unconstitutional.
He claims, without any explanation or support, that he has suffered cruel and unusual
punishment and his due process and equal protection rights have been violated. The bare
mention of such constitutional claims on appeal do not merit a reviewing court’s
consideration. (People v. Wharton (1991) 53 Cal.3d 522, 563.)
Consequently, as father has failed to make a good cause showing of any arguable
issue of reversible error at the termination hearing (Phoenix H., supra, 47 Cal.4th at p.
844), we will dismiss the appeal.
DISPOSITION
This appeal is dismissed.
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