In re M.B. CA3

Filed 11/7/13 In re M.B. CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re M. B., a Person Coming Under the Juvenile
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF C073071
HEALTH AND HUMAN SERVICES,
(Super. Ct. No. JD232052)
Plaintiff and Respondent,
v.
K. B.,
Defendant and Appellant.
K. B., the mother of 13-year-old M. B., appeals from an order of the Sacramento
County Juvenile Court granting a request to change a court order filed by the Sacramento
County Department of Health and Human Services (department). (Welf. & Inst. Code,1
§§ 388, 395.) The order removed M. B. from mother’s custody, placed her in her father’s
1 Further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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custody under dependent supervision, and granted mother regular visitation as frequent as
is consistent with the well-being of M. B.
Mother appeals contending the visitation order, as orally pronounced by the
juvenile court, erroneously delegated to M. B. discretion to determine whether any
visitation would occur. Mother claims this is so even though the formal written order
expressly provides that “the child shall not be given the option to consent to, or refuse,
future visits.” Mother argues her claim is cognizable notwithstanding her failure to raise
it in the juvenile court.
The department responds that the appeal is moot , mother forfeited her contention
by failing to raise it in the juvenile court, and the court did not delegate its authority to
the child. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Originating Circumstances
The family has prior child welfare history including referrals for emotional,
physical, and sexual abuse. With the exception of a substantiated physical abuse
allegation against mother in 2007, the allegations were deemed “inconclusive” or
“unfounded.”
On December 15, 2011, the department received a referral alleging that M. B. and
her sibling H. B., who had been in father’s care pursuant to a department safety plan,
were facing an “unsafe situation” because the family law court awarded mother sole
custody of the children.2
The next day, the department social worker conducted several interviews. A
hospital social worker told her that mother had brought H. B. to the emergency
department after H. B. attempted suicide. H. B. claimed she had swallowed more than
2 H. B., who is two years older than M. B., is not a party to this appeal.
2
100 pills and threw up most of them when she started feeling sick. H. B. had told the
hospital social worker that she “would rather be dead than live with her mother,” and that
“she was going to commit suicide if she is made to go back to her mother’s care.”
H. B. told the department social worker that, after she took the pills, she was
unable to stop throwing up. When she told mother what she had done, mother called her
“ ‘stupid’ ” and slapped her face. H. B. had to beg mother to take her to the hospital.
Father told the department social worker that he “had full custody of the children
as of June 2011 until it was changed in the Family Court on December 14, 2011. . . . The
father added that his children were vulnerable as they suffered abuse by their mother and
as a result were emotionally impacted.” Father believed the children’s mental health
issues were directly linked to the abuse they endured from mother, and the medical
professionals supported his belief.
The children’s former therapist told the department social worker “that the
children suffer from mental health issues, which they reported were triggered by their
mother’s abuse against them.”
A school counselor told the department social worker that M. B. “was crying
hysterically and screaming that she did not want to go with [] mother because [mother]
was going to kill her.” M. B. had been doing very well in school for the past six months
or so and showed no fear of father, who was closely involved with M. B.’s school
functions.
M. B. confirmed to the department social worker that she was “very scared” of
mother and believed that mother “was going to kill her,” because she “had a dream about
it” and because “mother screams at her.” M. B. said that mother “ ‘had moods [sic]
swings and she would be abnormally happy and then sassy.’ ” Mother “would burst into
tears and then be happy and then scream at us.”
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Petition
On December 30, 2011, the department filed a petition alleging that M. B. came
within the provisions of Welfare and Institutions Code section 300 in that she “is
suffering and/or is at risk of suffering serious emotional damage as a result of the
ongoing custody dispute between the parents.” Since May 2010, the parents have made
allegations of sexual abuse, physical abuse, and domestic violence against each other.
M. B. has been diagnosed with posttraumatic stress disorder and is being treated for
depression and anxiety. The parents’ ongoing custody dispute places the child at further
risk of suffering serious emotional damage.
Detention
At the detention hearing on January 17, 2012, the juvenile court detained the
children and placed them with the paternal grandmother.
Jurisdiction And Disposition
On March 5, 2012, the department filed a jurisdiction/disposition report that went
into great detail regarding the parents’ toxic relationship. The report revealed father to be
a controlling and manipulative person who was willing to submit false information in
court proceedings.
In a February 3, 2012, interview, father’s girlfriend reported that father describes
himself as a “ ‘master manipulator’ ” and claims “ ‘No one is better at deceiving and
manipulating’ ” than him. He boasted to her that he is “ ‘the smartest man alive’ ” and
“ ‘a certified genius,’ ” in that he has “APSC disorder, in which the two halves of the
brain work independently” and may be utilized “simultaneously and independently of
each other,” making him “more intelligent than anybody else.”
Father’s girlfriend witnessed inappropriate sexual activity between him and M. B.
He rubbed her back and cupped her buttocks with his hand. She sat on his lap, with her
buttocks over his genitals, and pressed her back against his chest. He caressed her
buttocks for 15 to 20 seconds. She asked him, “ ‘Can I sleep with you, Dad?’ ”
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Father’s girlfriend also questioned his emotional relationship with the children.
The children think father “ ‘walks on water’ ” and “ ‘they look at him as Christ.’ ” He
told the girlfriend, “ ‘My girls know better than to say anything against me.’ ” Father
admitted having unauthorized contact with the children at the paternal grandmother’s
house.
Three days after her interview, the girlfriend requested to withdraw her statements
because she is afraid of father. Father had told her she “ ‘better not say anything that
could damage’ ” his relationship with the girls. Father also told her, “ ‘You will regret
ever knowing me. I will ruin you.’ ” The threats appeared to be credible because father
admitted “he once drained the motor oil out of mother’s car without her knowledge, and
the car broke down while one of the children was in it with [] mother.”
For her part, mother accepted responsibility for the emotional harm the children
have suffered due to her delay in ending the abusive relationship with father. The
detective who had investigated H. B.’s allegations of physical and sexual abuse found
that mother’s denial of the allegations was credible. The detective believed mother was a
genuine victim of domestic violence.
Mother’s employer reported that she is “ ‘wonderful’ ” with the autistic children
she works with in her capacity as an instructional aide. Mother’s therapist was of the
opinion that she does not believe mother has abused the children and does not believe
mother has any mental disorder.
Based on the evidence, the department assessed that father “has attempted to
manipulate the children and keep them separated from the mother in that the father
continued to make unfounded allegations against the mother, and he gave false or
misleading information to mental health service providers in regard to the mother’s
mental health history. These efforts have had deleterious effects on the children, caused
them extreme emotional distress resulting in the child, [H. B.], attempting suicide on
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multiple occasions, and the child, [M. B.], suffering from Post Traumatic Stress
Disorder.”
At the jurisdiction hearing on March 14, 2012, the juvenile court sustained the
section 300 petition. At the disposition hearing on April 11, 2012, the court adjudged the
children dependents of the court.
On July 19, 2012, the children were removed from the paternal grandmother due
to her inability to care for them.
Six-Month Review
At the six-month review hearing on September 26, 2012, the juvenile court
ordered that M. B. be returned to her parents under continued dependency jurisdiction,
with the goal of terminating jurisdiction. She was scheduled to reside separately with
each parent on alternating weeks.
Request To Change Court Order
On November 15, 2012, mother telephoned the department social worker, who
was not the author of the jurisdiction/disposition report, and reported that M. B. had
something important to tell the worker about the incident in which father had drained the
oil from mother’s car. When the social worker met with M. B. and her therapist, M. B.
claimed mother had asked M. B. to tell the social worker about the incident.3 During the
meeting, M. B. was crying, raising her voice, and rocking in her chair. She repeatedly
claimed that she did not want to return home with mother. The social worker told mother
there was an agreement that, if the children wanted to go to the other parent’s home, they
3 In her informational memorandum, the social worker did not acknowledge that,
per the jurisdiction/disposition report, an oil draining incident had occurred. Read in
isolation, the memorandum can be read to suggest that mother solicited M. B. to voice a
false report of a new incident.
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would be allowed to do so. The social worker authorized M. B. to stay with father until
she and the parents had a conjoint therapy session.
On December 28, 2012, the department social worker met with M. B., who refused
to visit or talk with mother. Three days later, the social worker met with mother, who
advised that the children are being manipulated by father. The social worker responded
that M. B. had made no mention of father alienating her from mother. M. B. told her
therapists and social workers that she is afraid to go home to mother because mother
screams and yells at her.
On January 3, 2013, the department filed a request to change the court order that
placed M. B. with both parents. (§ 388.) The department requested that she be placed in
the sole care of father under dependent supervision.
At the hearing on January 30, 2013, mother’s counsel objected to the department’s
motion, which counsel considered to be “essentially a change in custody status motion.”
Counsel requested that mother be granted legal custody, as well as 25 percent parenting
time. She also requested conjoint therapy and visitation.
The juvenile court granted the department’s motion. Mother’s counsel did not
object to the court’s oral ruling.
DISCUSSION
I
Scope Of Appeal
Mother’s notice of appeal states that she appeals from the “Section 388. Removal
[of M. B.] from Mother’s care.” However, mother has not asserted error with respect to
the removal or the ensuing placement of M. B. with father. Thus, those issues have been
abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
We granted mother’s request to construe her notice of appeal as appealing the
findings and orders regarding visitation.
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II
Appealability
The department contends the visitation order is an interim order and, as such, is
not appealable and can be reviewed only on appeal from a final judgment. We disagree.
“Appeals in dependency proceedings are governed by section 395, which
provides: ‘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 re M.C. (2011) 199 Cal.App.4th 784,
801, italics added.) “In dependency cases, the dispositional order is generally the first
appealable order. [Citations.]” (Ibid.)
In this case, the challenged order placing M. B. in father’s custody and granting
mother visitation was entered subsequent to the dispositional order. Thus, the challenged
order is appealable as an order after judgment. (In re M.C., supra, 199 Cal.App.4th at
p. 801.)
III
Forfeiture
Mother contends her counsel’s failure to object to the visitation order in the
juvenile court does not forfeit the issue on appeal because the order, made during the
reunification period, raises “a legal issue of paramount importance.” We disagree.
A party forfeits a claim that the juvenile court improperly delegated its visitation
authority to a third party when he or she fails to object in the juvenile court. (Kevin R. v.
Superior Court (2010) 191 Cal.App.4th 676, 685-686; In re Dakota H. (2005)
132 Cal.App.4th 212, 221–222; In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642.)
“[A]pplication of the forfeiture rule is not automatic. [Citations.]” (In re S.B.
(2004) 32 Cal.4th 1287, 1293; superseded by statute on other grounds as stated in In re
S.J. (2008) 167 Cal.App.4th 953, 961.) “But the appellate court’s discretion to excuse
forfeiture should be exercised rarely and only in cases presenting an important legal
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issue. [Citations.] Although an appellate court’s discretion to consider forfeited claims
extends to dependency cases [citations], the discretion must be exercised with special
care in such matters. ‘Dependency proceedings in the juvenile court are special
proceedings with their own set of rules, governed, in general, by the Welfare and
Institutions Code.’ [Citation.] Because these proceedings involve the well-being of
children, considerations such as permanency and stability are of paramount importance.
[Citation.]” (In re S.B., at p. 1293.)
S.B. held that a Court of Appeal majority did not abuse its discretion in
entertaining a mother’s challenge to a postreunification visitation order notwithstanding
her failure to object to it in the juvenile court. “The appeal presented an important issue
of law: whether a juvenile court in a dependency case may delegate to the child’s legal
guardian the authority to decide whether a parent may visit the child, a question that has
divided the Courts of Appeal.” (In re S.B., supra, 32 Cal.4th at pp. 1293-1294.)
Mother claims this case involves “a legal issue of paramount importance because
the [visitation] order was made during the reunification period.” But the mere timing of
the order during reunification does not make the issue of paramount importance. It is
settled that a parent’s failure to challenge the reasonableness of reunification services in
the juvenile court prevents a challenge to the reasonableness of services on appeal. (E.g.,
In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
In this case, the juvenile court’s written order properly granted mother regular
visitation as frequent as is consistent with the well-being of M. B. Her only claim on
appeal is that the court’s oral remarks at the hearing should not be read as contradicting
the written order. Thus, this case does not present the sort of important legal issue that
was considered in S.B. We conclude mother has forfeited her appellate claim.
Having so concluded, we need not discuss the department’s remaining
contentions.
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DISPOSITION
The January 2013 visitation order is affirmed.
ROBIE , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
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