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In Re A.S. et al., Persons Coming Under the Juvenile Court v. W.S

October 26, 2011

IN RE A.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
W.S., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 2804501, 2804502, 2804601, 2804602)

The opinion of the court was delivered by: Duarte , J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant father appeals from various orders, entered at the dispositional hearing held on July 9, 2010, and generally related to lack of visitation.

We ordered supplemental briefing on the issue of whether the juvenile court's original informal dispositional order, entered on October 6, 2009, and invoking Welfare and Institutions Code,*fn1 section 360, subdivision (b), was tantamount to disposition and thus an appealable order.

Concluding that the answer is yes, we hold that to the extent that father's claims reference orders originally entered at that hearing and at subsequent proceedings held prior to the July 9, 2010 hearing, these claims are forfeited by his failure to file a timely notice of appeal from the original orders. We then explain that father's claims fail when considered on their respective merits. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Following a previous trek through the dependency system, A.S. (born December 1994) and J.S. (born January 1999) were adopted by father and his wife (mother). On June 2, 2009, A.S. reported that he and father were involved in a physical altercation. A.S. was then interviewed by a social worker. A.S. reported frequent physical abuse at the hands of father. A.S. also reported father and mother locked him out of the house at night without food.

J.S. also was interviewed by a social worker. Appearing nervous during the interview, J.S. disclosed to the social worker that father had touched her chest, buttocks, and thighs

"inappropriately."*fn2 The Department of Health and Human Services (the Department) detained the children on June 5, 2009, pending further investigation.

The following day, the Department filed a section 300 petition, alleging the parents failed to protect the children. Specifically, the petition alleged that A.S. was physically abused and locked out of the house at night. It was further alleged that, as foster parents, father and mother had a history of using corporal punishment to manage various children's behavior, and there was an ongoing criminal investigation for child endangerment. At the detention hearing, the children were ordered to remain in foster care. The juvenile court further ordered supervised visits with both parents, one hour each month, after the children completed mental health assessments.

The Department then filed a first amended section 300 petition including more specific allegations of physical abuse against A.S. and allegations that J.S. witnessed the abuse of her brother. The jurisdiction hearing on the first amended petition was held on July 22, 2009. At that time, the children, who were placed in the same foster home, were refusing to see either of their parents. The juvenile court continued the jurisdiction hearing, but ordered visitation between the children and both parents for one hour each month, to be increased at the Department's discretion. Minors' counsel objected to "physical removal of the minors for visits if they refuse to attend." Accordingly, the court also ordered "that no visit shall take place if the minors do not with [sic] to attend the visit."

The social worker then scheduled a visit between the minors and both parents. However, when the social worker arrived at the foster home to transport the minors, they refused to go. A short time later, J.S. agreed to participate in a therapeutic visit with mother, but before the visit could take place, J.S. changed her mind and was "completely unwilling to participate in any visitation."

In September 2009, father unsuccessfully demurred to the first amended petition. That same month, A.S. ran away from the foster home he shared with J.S. When he returned to the foster home, A.S. was under the influence of marijuana. Consequently, A.S. was removed from that foster home and placed in a respite care home. A.S. then ran away from the respite care home and was placed with a new foster family separate from J.S. On September 29, 2009, A.S. ran away from the new foster care family to an unknown location. Three days later, a protective custody warrant was issued for A.S.

On October 5, 2009, the Department filed a second amended section 300 petition alleging that neither J.S. nor A.S. wanted to return home, A.S. was defiant and running away, and both parents denied the abuse allegations. On October 6, 2009, the jurisdiction/disposition hearing was held on the second amended section 300 petition. At the hearing, the juvenile court found true the allegations in the second amended petition and assumed jurisdiction over the minors.

At the parties' request, although the children remained detained, the court ordered informal supervision pursuant to section 360, subdivision (b), but also ordered reunification services under section 361.5, subdivision (a).*fn3 The court further ordered that all prior orders, presumably including the July 22 visitation order, remain in full force and effect.

Between October 19, 2009, and December 14, 2009, the court held five "15-day review hearings" pursuant to section 367, subdivision (d). At each of the hearings, the Department indicated A.S. was still missing. At the December 14, 2009 hearing, father asked that the issue of therapeutic visits ...


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