In re A.R. CA2/5 ( 2023 )

Filed 6/9/23 In re A.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re A.R. et al., Persons Coming B316686
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, Nos. 21CCJP03030B,
21CCJP03030C,
Plaintiff and Respondent, 21CCJP03030D,)
v.
M.F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Martha Matthews, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Deputy County
Counsel, for Plaintiff and Respondent.
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Mother appeals the juvenile court’s disposition orders
under Welfare and Institutions Code section 361.1 Mother
contends that because the Los Angeles County Department of
Children and Family Services (Department) did not notify
maternal relatives that they could seek placement of her four
children, the juvenile court’s placement orders were in error. The
Department contends that mother has not appealed the
placement of her oldest child, M.F., and forfeited the relative
placement issue by failing to raise the issue before the trial
court.2 We disagree with mother and affirm the orders.
The parties are familiar with the facts and our opinion does
not meet the criteria for publication. (Cal. Rules of Court, rule
8.1105(c).) We accordingly resolve the cause before us, consistent
with constitutional requirements, via a written opinion with
reasons stated. (Cal. Const., art. VI, § 14; Lewis v. Superior
Court (1999) 19 Cal.4th 1232, 1261–1264 [discussion of issue on
appeal need not discuss every fact or legal authority raised by
parties].)
1 Further statutory references are to the Welfare and
Institutions Code.
2 The Department also filed a motion to dismiss on
February 7, 2023, raising the same arguments. The
Department’s motion to dismiss is granted for the reasons stated
in this opinion.
2
Mother’s appeal does not include orders as to her oldest
child, M.F.
At a disposition hearing on November 24, 2021, the juvenile
court ordered all four of mother’s children removed from her
custody. The clerk’s transcript for this appeal includes three
disposition orders, for three of mother’s four children: A.R. (born
June 2015), K.T. (born March 2019), and K.R. (born October
2020). Our record does not include a disposition order for
mother’s oldest child, M.F. Mother filed two notices of appeal.
The first was filed on November 29, 2021, and identified A.R.,
K.T., and K.R. as the children subject to the notice of appeal. The
notice stated mother was appealing “[a]ny and all appealable
issues from the Dispositional hearing on November 24, 2021,
including ordering Mother to complete 12 consecutive drug tests
despite the court dismissing Mother’s substance abuse
allegation.” On December 17, 2021, mother filed a second notice
of appeal, limited to A.R. only, appealing from the dispositional
hearing on November 24, 2021, as well as a December 10, 2021
custody order that terminated dependency jurisdiction over A.R.
A parent’s “notice of appeal must be construed liberally to
encompass an order not expressly mentioned only when it is
‘ “reasonably clear” ’ the appellant intended to appeal from the
unmentioned order.” (In re J.F. (2019) 39 Cal.App.5th 70, 78.)
However, “the policy of liberal construction ‘does not apply if the
notice is so specific it cannot be read as reaching a judgment or
order not mentioned at all.’ ” (Ibid.)
Here, both notices of appeal expressly identified the three
minors at issue; neither identified M.F. Further, mother’s
opening brief in this court does not address the absence of M.F.’s
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name on either notice of appeal. Because the failure to include
M.F. in the notices of appeal resulted in a clerk’s transcript that
does not contain any minute orders relating to M.F., including
the disposition order that mother seeks to reverse, mother cannot
credibly claim she was unaware of the omission. Even giving the
notices of appeal a liberal construction, mother has failed to show
it is reasonably clear those notices include any order concerning
M.F. Nor do we have an adequate record upon which to rule on
any alleged error as to M.F.
Relative placement issue forfeited
Mother argues Department has an initial and continuing
duty of inquiry under sections 309 and 361.3 to identify and
notify maternal relatives of the children’s detention,3 and the
Department’s failure to meet its duty here resulted in her
children being placed in three different nonrelated homes.4 The
3 Mother analogizes the Department’s failure to seek out
maternal relatives to the error found when the Department fails
to ask extended relatives about potential Indian ancestry under
the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
and related state law. (§ 224.2.) We find the analogy
unpersuasive, given the markedly different purposes of the two
statutory schemes.
4 Mother explains in her opening brief that local form
CK010 is a relative information sheet that gives notice and
instructions to parents to provide all potential relatives
information for placement consideration in writing and explains
the consequences of failure to do so. She argues that the absence
of a completed form demonstrates as a matter of law that the
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Department contends mother forfeited the issue of relative
placement because she did not raise the issue before the trial
court. The Department further argues the court’s placement
decisions were reasonable and mother has not shown any claimed
error to be prejudicial. On the record before us, we agree that
mother forfeited her ability to raise the issue of relative
placement on appeal, and we decline to exercise our discretion to
reach mother’s argument. In addition, even assuming error,
mother has not shown prejudice.
Within 30 days of removing a minor from parental custody,
the Department is required to conduct an investigation to
identify and locate the minor’s relatives (as defined by statute)
and notify the relatives, orally and in writing, when possible, of
minor’s removal and the relatives’ options to participate in the
minor’s care and placement. (§ 309, subd. (e)(1); see In re R.T.
(2015) 232 Cal.App.4th 1284, 1296.) When the juvenile court
removes a child from parental custody, section 361.3, subdivision
(a), requires that relatives of the child who have requested
placement be given preferential consideration. “ ‘Preferential
consideration’ means that the relative seeking placement shall be
the first placement to be considered and investigated.” (§ 361.3,
subd. (c)(1).) “The relative placement preference, however, is not
a relative placement guarantee.” (In re Joseph T. (2008)
163 Cal.App.4th 787, 798; see In re Stephanie M. (1994) 7 Cal.4th
Department and the court did not make reasonable efforts to
place the children with relatives. We decline to consider the
substance of mother’s argument because we conclude mother
forfeited the relative placement issue. However, we note that
nothing in the text of form CK010 imposes any obligation on the
court or the Department to ensure it is completed or filed.
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295, 320 [even when relative preference applies, it does not
overcome juvenile court’s duty to determine the best interest of a
child].)
An appellate court “ordinarily will not consider a challenge
to a ruling if an objection could have been but was not made in
the trial court.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “The
purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected.” (Ibid.)
The rationale behind the forfeiture rule is that it would be
“inappropriate to allow a party not to object to an error of which
the party is or should be aware.” (In re Dakota S. (2000)
85 Cal.App.4th 494, 501.) Although “application of the forfeiture
rule is not automatic” and the reviewing court has “discretion to
excuse forfeiture,” that discretion “must be exercised with special
care” in dependency proceedings, because they “involve the well-
being of children” and “considerations such as permanency and
stability are of paramount importance.” (In re S.B., at p. 1293.)
When a parent fails to bring the issue to the juvenile court’s
attention, the issue of relative placement can be forfeited, even
when a relative has come forward. (In re A.K. (2017)
12 Cal.App.5th 492, 500–501.)
Mother and her appointed counsel had ample opportunity
to object to the Department’s failure to consider additional
maternal relatives as placement alternatives, but raised no such
objection. To the contrary, mother said she was happy with the
placement plans for K.T. and K.R., and when the court asked
mother’s counsel if she had any requests at a hearing on
August 25, 2021, counsel’s only request focused on a meeting
with mother, the social worker, and the caregivers to coordinate
mother’s access to in-person visitation. The court granted the
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request in full. At the disposition hearing, mother’s counsel
asked for the children to be returned to her custody, and
alternatively asked the court to modify the proposed visitation
orders for her children, but did not object to any failure to
consider maternal relatives as placement options. Even on
appeal, mother does not identify any maternal relatives the
Department might consider. Instead, her argument focuses on
the Department’s failure to ask mother or other relatives “about
other relatives that may be available to take placement.” Mother
forfeited the relative placement issue by failing to raise it before
the juvenile court.
Even if we were to find the court’s lack of inquiry about the
existence of other maternal relatives to constitute error, mother
has not shown prejudice. Mother has not identified any relative
that the Department could have considered that would lead to a
more favorable result for her. The “court is not to presume that a
child should be placed with a relative, but is to determine
whether such a placement is appropriate, taking into account the
suitability of the relative’s home and the best interest of the
child.” (In re Stephanie M., supra, 7 Cal.4th at p. 321, italics
omitted.) Mother’s abstract argument that there might be
maternal relatives to consider is insufficient to support any
finding of prejudice.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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