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In Re M.G., A Person Coming Under the Juvenile Court Law. v. M.O

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 17, 2011

IN RE M.G., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.O., DEFENDANT AND APPELLANT.

(Super. Ct. No. JD222157)

The opinion of the court was delivered by: Mauro ,j.

In re M.G. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The minor's mother challenges the juvenile court's visitation order entered as part of a permanent plan of guardianship with the maternal grandparents. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Mother forfeited her challenge, however, because she did not object to the visitation order in the juvenile court, but instead affirmatively supported it. We will affirm the order.

PROCEDURAL AND FACTUAL BACKGROUND

Juvenile dependency proceedings were initiated for the four-year-old minor based on the parents' psychiatric problems and their failure to take medication as prescribed. The petition, as later amended, alleged that the minor's sibling had previously been removed from the parents' custody as a result of the parents' mental disorders and that their parental rights were subsequently terminated as to the sibling. The minor had also been the subject of an earlier dependency proceeding shortly after her birth based on similar allegations, but she was returned to the parents' care after they successfully engaged in services.

In the instant proceeding, the minor was placed with the maternal grandparents. The juvenile court then sustained the allegations in the amended petition and denied the parents reunification services pursuant to section 361.5, subdivision (b)(11) [parental rights over a sibling were severed and the parent has not made a reasonable effort to treat the problem leading to the sibling's removal].

According to the report for the section 366.26 hearing, although the minor was adoptable, she had a close emotional relationship with the maternal grandparents, who preferred guardianship. The minor had monthly supervised visits with her parents, which she enjoyed. The social worker recommended a permanent plan of guardianship, with visitation "as arranged with the guardian and subject to any reasonable conditions, including supervision, as the guardian considers necessary."

At the section 366.26 hearing, the juvenile court ordered a permanent plan of guardianship with the maternal grandparents. Counsel for the minor stated, "I understand there may be some requests to include visitation in the order. I have no objection to that. But I do want it to be made clear that the guardian is able to determine whether any visitation is appropriate, I think, without the Court's provision. I think that it is necessary for them to have that ability." In response, mother's attorney reasserted that the minor should be returned to her parents, but she added that she was not requesting a trial in this matter. Mother's attorney then stated affirmatively that she was "supportive" of the recommended "continued contact order." Mother's counsel did not object to the suggestion by minor's counsel that the guardians have the ability to determine whether any visitation is appropriate.

The court ordered visitation for the parents "subject to any reasonable conditions, including supervision and at the frequency that the guardian believes to be in the [minor's] best interest and deems to be necessary. [¶] . . . [¶] With the understanding that as guardians of the [minor], it is the guardian's responsibility to look after and safeguard the best interest of that child. And that includes making decision[s] about the appropriateness of the [minor] spending time with anyone, including parents and extended family members."

DISCUSSION

Mother contends the juvenile court's visitation order gave too much discretion to the guardians regarding the frequency and duration of visits. Mother forfeited her challenge, however, because she did not object to the visitation order in the juvenile court, but instead affirmatively supported it.

"In dependency litigation, non-jurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal. [Citations.]" (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)

Mother's attorney, while raising another objection, failed to state any objection to the proposed visitation order. To the contrary, she endorsed it. It was reasonable for the juvenile court to assume under such circumstances that mother consented to the order. (See In re Precious J. (1996) 42 Cal.App.4th 1463, 1476; In re Daniel C.H. (1990) 220 Cal.App.3d 814, 838.)

Mother acknowledges that she did not object to the visitation order in the juvenile court and, as such, may be deemed to have forfeited her claim on appeal. Nonetheless, she notes that we have discretion to excuse forfeiture. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) Mother also recognizes, however, that our discretion to excuse forfeiture should only be exercised in rare circumstances and that we must use special care in dependency cases because the permanency, stability and well-being of children are of paramount importance. (In re S.B., supra, 32 Cal.4th at p. 1293.)

Mother contends this is such a rare circumstance because the issue presented is an important issue of law on which the appellate courts are divided. (See, e.g., In re Jennifer G. (1990) 221 Cal.App.3d 752, 757; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374; In re M.R. (2005) 132 Cal.App.4th 269, 274-275.)

We do not decide here whether the issue presented is an important issue of law on which the appellate courts are divided. As mother's counsel concedes in appellant's opening brief, this record evidences a history of concerns regarding the parents' mental health, drug use, violence, and failure to take medication as prescribed. Minor's counsel asked at the hearing that the guardians have the ability to determine visitation to ensure the best interests of the minor, and mother's counsel responded by expressing support for the proposed contact order. Had a timely objection been lodged, the juvenile court would have had an opportunity to address the objection.

Under these circumstances, we decline to excuse forfeiture on this record.

DISPOSITION

The juvenile court order is affirmed.

We concur:

BLEASE, Acting P.J. BUTZ ,J.


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