Filed 7/22/21 In re A.C. CA1/4
Reposted with correct filed date
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re A.C., a Person Coming Under
the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY, A160956
Plaintiff and Respondent, (Alameda County
v. Super. Ct. No. JD-029263-01)
T.C.,
Objector and Appellant.
T.C. (mother) appeals from the juvenile court’s order terminating her
parental rights as to her daughter, A.C. (minor), at a hearing under Welfare
and Institutions Code section 366.26.1 Mother argues the juvenile court’s
order violates due process because the court failed to find that returning the
minor to mother’s care would be detrimental to the minor. We conclude
mother has forfeited this argument by failing to raise it below. We therefore
affirm the juvenile court’s order.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
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BACKGROUND
The minor was born in May 2008. In January 2010, maternal
grandmother Linda W. (guardian) obtained a probate guardianship over the
minor.2 In January 2018, when the minor was nine years old and living with
the guardian, the minor brought a bag of crack pipes to school that she had
found at home. The minor reported that the guardian and other family
members living with her abused drugs. The minor was then detained and
the Alameda County Social Services Agency (agency) filed a dependency
petition. At the detention hearing, the juvenile court appointed counsel for
mother and found that continuing the minor in the home of the guardian or
mother would be contrary to the minor’s welfare.
At the combined jurisdiction/disposition hearing in May 2018, the
juvenile court removed the minor from the guardian’s custody, placed her in
foster care, and ordered the agency to provide reunification services to the
guardian. Mother had told the agency before the hearing that she did not
want the guardian to care for the minor and opposed granting the guardian
reunification services. Mother did not ask the agency for custody over the
minor, and at the hearing, mother’s counsel did not request reunification
services for mother or placement of the minor with her.
Leading up to the six-month review hearing in November 2018, mother
told the agency that she was unable to care for the minor and had concerns
about the minor returning to the guardian’s care. At the hearing, mother’s
counsel had not had contact with mother, so he did not ask for reunification
2 The minor’s maternal aunt was also appointed as co-guardian over
the minor. However, the aunt ceased acting as guardian before this action
arose, and the court eventually terminated the aunt’s guardianship with the
aunt’s agreement. Proceedings related to the aunt are not relevant here.
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services or placement of the minor with her. The juvenile court continued
reunification services for the guardian.
In advance of the 12-month review hearing in July 2019, Mother again
told the agency she was unable to care for the minor. At the hearing, the
agency recommended that the court terminate the guardian’s services and set
a hearing under section 366.26 for termination of parental rights. Mother’s
counsel repeated that mother was unable to care for the minor. Mother’s
counsel also said mother was working on securing housing to possibly become
a potential placement for the minor. However, mother did not request
placement of the minor at that time and submitted on the agency’s
recommendation that the court set a hearing to terminate her parental
rights. The court terminated the guardian’s reunification services and set a
section 366.26 hearing.
In August 2019, prior to the section 366.26 hearing, the agency
submitted a report stating that the minor had been “steadfast” in her view
that she did not want visitation with mother or other relatives, and that the
minor had warned the child welfare worker not to be “manipulated” by her
mother, whom the minor had “no desire” to visit. At an interim review
hearing in September 2019, the court found that it was not in the minor’s
best interests to have visitation with mother.
At the first date of the section 366.26 hearing in October 2019, the
court terminated the guardian’s probate guardianship. It then continued the
section 366.26 hearing, twice for the minor to consider adoption or placement
with her biological father and once due to the COVID-19 pandemic. At the
first several dates for the section 366.26 hearing, mother requested visitation
to maintain her relationship with the minor but never contested the
recommendation to terminate her parental rights. In advance of the final
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date of the section 366.26 hearing in September 2020, the minor’s adult sister
said she wanted to adopt the minor, and mother told the agency that she
supported that plan. At the hearing, however, mother for the first time
contested the termination of her parental rights. She argued that the
agency’s report did not describe contact between mother and the minor
because the agency had not allowed mother to visit with the minor, and the
absence of visits prejudiced her by preventing her from maintaining her bond
with the minor. The juvenile court found no deficiencies in the agency’s
report and that visitation had been adequate in light of the minor’s desires
not to visit with mother. The court therefore terminated the parental rights
of mother and the minor’s biological father. The court set a permanent plan
of adoption for the minor. Mother appealed.
DISCUSSION
Mother contends the order terminating her parental rights should be
reversed because the court never found by clear and convincing evidence that
she was unfit or that awarding her custody would be detrimental to the
minor. She cites several decisions that have held that “a court may not
terminate a nonoffending, noncustodial mother’s or presumed father’s
parental rights without finding, by clear and convincing evidence, that
awarding custody to the parent would be detrimental.” (In re T.G. (2013)
215 Cal.App.4th 1, 20, fn. omitted; see also In re D.H. (2017) 14 Cal.App.5th
719, 730; In re Frank R. (2011) 192 Cal.App.4th 532, 539; In re Gladys L.
(2006) 141 Cal.App.4th 845, 848–849.) She urges us to exercise our discretion
to review this argument on the merits, despite her failure to raise it below.
We decline to do so.
“[A] reviewing court ordinarily will not consider a challenge to a ruling
if an objection could have been but was not made in the trial court.
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[Citation.] 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.” (In re S.B.
(2004) 32 Cal.4th 1287, 1293, fn. omitted.) “Although the loss of the right to
challenge a ruling on appeal because of the failure to object in the trial court
is often referred to as a ‘waiver,’ the correct legal term for the loss of a right
based on failure to timely assert it is ‘forfeiture,’ because a person who fails to
preserve a claim forfeits that claim.” (Id. at p. 1293, fn. 2.) While
“[d]ependency matters are not exempt from this rule,” the “application of the
forfeiture rule is not automatic” and appellate courts have discretion to
consider forfeited claims. (Id. at p. 1293.) “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.” (Ibid.)
“Because these proceedings involve the well-being of children, considerations
such as permanency and stability are of paramount importance.” (Ibid.)
Accordingly, especially in dependency cases, “the appellate court’s discretion
to excuse forfeiture should be exercised rarely and only in cases presenting
an important legal issue.” (Ibid.)
The history of this case demonstrates why the forfeiture rule exists,
and we see no reason to exercise our discretion to depart from it. The court
first set the section 366.26 hearing to terminate mother’s parental rights in
July 2019. Mother did not object to that at the time, nor did she argue that
there were insufficient findings of detriment to support termination of her
rights. The court held the first day of the section 366.26 hearing in October
2019, and the only concerns mother expressed then were focused on her
visitation rights, not the agency’s recommendations for terminating her
parental rights. On neither of the next two dates for the hearing did mother
object that there was an insufficient record or factual basis for terminating
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her rights. Mother also told the agency before the final date of the hearing
that she supported the minor’s desired plan of having the minor’s adult sister
adopt the minor.
Moreover, there is no indication in the record that mother ever made
any serious attempts to exercise the parental rights she now seeks to
preserve. Mother had not exercised parental rights over the minor since at
least 2010, when the minor was 20 months old and the probate court
appointed the guardian. Additionally, this dependency matter was pending
in the juvenile court for over two and a half years. Not once in that period
did mother ask to have the minor placed with her, nor did mother ever
request services to help her reunify with the minor.
Thus, by the last date of the section 366.26 hearing in September 2020,
mother had been on notice for well over a year that the court was considering
terminating her parental rights, rights she had not exercised or sought to
exercise in 10 years. Mother never objected, and repeatedly stated during the
proceedings that she was unable to care for the minor. She in fact supported
a plan of adoption for the minor, a plan that necessarily involved the
termination of her parental rights. It is also possible, as the agency argues,
that the juvenile court believed its finding at the detention hearing that
placement of the minor in mother’s home was contrary to the minor’s welfare
satisfied the need to establish detriment by clear and convincing evidence,
although the court did not state on the record that its finding was by clear
and convincing evidence. Had mother raised the issue of a missing finding of
detriment at any point during this process, the agency and juvenile court
could have addressed the issue and, if necessary, collected evidence regarding
mother’s suitability as a placement for the minor and any potential detriment
from such placement. Mother’s failure to raise her objection therefore
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prevented the juvenile court from correcting the error she now complains of,
so we will not exercise our discretion to entertain her arguments at this late
date. (In re S.B., supra, 32 Cal.4th at p. 1293 [purpose of forfeiture rule “is to
encourage parties to bring errors to the attention of the trial court, so that
they may be corrected”].)
Mother asserts that courts have relaxed the forfeiture rule when a
party raises important constitutional arguments, like her argument here
regarding her due process interests in the care and custody of the minor. She
cites several decisions that declined to apply the forfeiture rule and reversed
orders terminating parental rights because of due process concerns about the
absence of findings of detriment by clear and convincing evidence. (See In re
T.G., supra, 215 Cal.App.4th at p. 14; In re Frank R., supra, 192 Cal.App.4th
at p. 539; In re Gladys L., supra, 141 Cal.App.4th at p. 849.) While mother’s
rights are important, these decisions do not persuade us that the forfeiture
rule should be relaxed merely because mother now raises a due process claim.
Most if not all dependency cases necessarily implicate parents’ fundamental
liberty interests in the care and custody of their children. S.B. nevertheless
teaches that courts should rarely exercise their discretion to excuse forfeiture
in dependency cases, because of children’s paramount interests in
permanency and stability. (In re S.B., supra, 32 Cal.4th at p. 1293; see also
In re A.A. (2012) 203 Cal.App.4th 597, 606 [constitutional challenges are
subject to forfeiture].) Here, where the minor is almost 13 years old and
mother has not occupied a parental role in her life since she was 20 months
old, where minor has repeatedly made clear she has no desire to visit with
mother, where minor has been placed with her adult sister—who wishes to
adopt the minor—since September 2020, and where mother and the minor
supported this plan of adoption, we conclude the minor’s interest in
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permanency and stability counsel against exercising our discretion to excuse
mother’s failure to properly raise her arguments below.
DISPOSITION
The juvenile court’s order is affirmed.
BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
In re A.C. (A160956)
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