In re S.B. CA2/3 ( 2023 )

Filed 4/26/23 In re S.B. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re S.B. et al., Persons Coming B321633
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No.
CHILDREN AND FAMILY 19CCJP01011A–B
SERVICES,
Plaintiff and Respondent,
v.
MELODY R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Linda Sun, Judge. Affirmed.
Melody R., in pro. per., for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Deputy
County Counsel for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Melody R. (mother) appeals from an order continuing her
children’s selection and implementation hearing. Mother argues
the continuance lacked good cause and contravenes the best
interests of her children. Mother also raises a litany of unrelated
arguments in her reply brief. As we explain, mother forfeited any
challenge to the order continuing the selection and
implementation hearing by not objecting to the continuance
below. In any event, the court didn’t abuse its discretion in
continuing the hearing. As for the arguments mother raises for
the first time on reply, we do not address them because they are
untimely. We therefore affirm.
BACKGROUND
In February 2019, the Department of Children and Family
Services (Department) filed a dependency petition under Welfare
and Institutions Code1 section 300, subdivisions (a) and (b), on
behalf of mother’s children, S.B. (born 2017) and P.B. (born 2018),
alleging they were in danger of suffering physical harm based on
domestic violence between mother and their father (counts a-1
and b-1) and mother’s mental and emotional problems (count b-
2). The Department filed the operative first amended petition in
August 2019, adding allegations that the children were at
substantial risk of suffering serious physical harm and sexual
abuse based upon father’s sexual abuse of the children’s niece
and their adult siblings (counts b-3, d-1, and j-1).
1All undesignated statutory references are to the Welfare and
Institutions Code.
2
As of October 2019, the children were living with Nekeya C.
(Nekeya), a foster parent with whom they have remained
throughout these proceedings.
In February 2020, the court sustained the b-1, b-2, b-3, d-1,
and j-1 allegations, declared S.B. and P.B. dependents of the
court, and removed them from mother’s and father’s custody,
with both parents receiving monitored visitation. The court
ordered no reunification services for either parent and scheduled
a selection and implementation hearing for June 2020.
We later granted mother’s petition for extraordinary relief
from the court’s dispositional orders, concluding the court
violated mother’s due process rights by denying her the
opportunity to cross-examine the dependency investigator and
social worker at the jurisdiction and disposition hearing. The
court vacated its jurisdiction findings and disposition orders.
The court held a new jurisdiction hearing in May 2021.
Prior to the hearing, mother’s counsel moved to be relieved and
attached to her motion an email from mother threatening to sue
the attorney if she continued to contact or represent mother.
Mother had apparently “stopped all communication” with her
attorney. The court denied the motion, explaining that counsel
could not be relieved unless mother filed a motion to discharge
the attorney under People v. Marsden (1970) 2 Cal.3d 118(Marsden motion). The court then sustained the b-1, b-2, b-3, d-1,
and j-1 allegations, and dismissed the a-1 allegation.
In June 2021, the court held the disposition hearing, at
which mother did not appear. By that time, mother wasn’t
communicating with her attorney or the Department, and the
court noted that mother was engaging in dilatory tactics to delay
the children’s proceedings. The court declared S.B. and P.B.
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dependents of the court, removed them from their parents’
custody, and denied mother and father reunification services. The
court scheduled a selection and implementation hearing for
October 2021. Mother did not appeal the new disposition orders.
In October 2021, the court granted the Department’s
request to continue the proceedings to February 2022 for the
Department to assess placing the children with their out-of-state
relatives.
In November 2021, mother, acting in pro per, filed a
“demurrer and motion to terminate court jurisdiction with
prejudice” (demurrer). In late January 2022, the court held a
hearing on mother’s demurrer, at which mother failed to appear.
The court declined to rule on mother’s demurrer because mother
was represented by counsel. The court noted that the children’s
proceedings had been substantially delayed “because of the
mother’s obstreperous and recalcitrant conduct.”
In February 2022, the court continued the children’s
selection and implementation hearing to allow the Department
more time to assess the children’s out-of-state relatives.
In late May 2022, the Department reported that S.B. and
P.B. could not be placed with their relatives, but the current
caregiver, Nekeya, was committed to adopting the children. By
that time, S.B. and P.B. had been living with Nekeya for over
three years, and they were closely bonded to her. Accordingly, the
Department was evaluating Nekeya for “adoption readiness.”
On June 9, 2022, the court continued the selection and
implementation hearing to August 2022. Mother did not appear,
but the court substituted mother’s appointed counsel for counsel
mother had recently retained. The court explained that it needed
to continue the selection and implementation hearing to allow the
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Department to complete its permanency planning report.
Mother’s counsel did not object to the continuance. Instead,
counsel asked the court to order the Department to provide
mother information about a medical procedure P.B. was expected
to undergo and to assess whether the children could be placed
with their maternal grandmother. The court ordered the
Department to notify mother “of any medical services of the
children that are required” and to “provide an update [on]
whether the maternal grandmother has been assessed before and
reasons why or why not the children were not be placed with
her.”
Mother appeals from the court’s June 9, 2022 order.
DISCUSSION
1. Appellate Jurisdiction
As a preliminary matter, the Department contends we lack
jurisdiction to hear mother’s appeal because mother did not
identify in her notice of appeal the order that she challenges in
her opening brief—i.e., the order continuing the selection and
implementation hearing. We disagree.
While an appellate court’s jurisdiction is limited in scope to
the notice of appeal and the judgment or order appealed from (In
re J.F. (2019) 39 Cal.App.5th 70, 75), we must liberally construe
the notice in favor of its sufficiency. (In re Joshua S. (2007) 41
Cal.4th 261, 272 (Joshua S.); Cal. Rules of Court,2 rules
8.100(a)(2), 8.405(a)(3).) Thus, a notice of appeal should be
construed to encompass the challenged order if “ ‘it is reasonably
clear what [the] appellant was trying to appeal from, and where
2 All undesignated rule references are to the California Rules of Court.
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the respondent could not possibly have been misled or
prejudiced.’ ” (Joshua S., at p. 272.) A notice of appeal “is
sufficient if it identifies the particular judgment or order being
appealed [from].” (Rule 8.100(a)(2).)
Here, mother’s notice of appeal states that she is appealing
from the following order: “On June 9th, 2022[,] the court ordered
mother to be notified of any medical services of the children that
are required.” In her opening brief, mother challenges the order
continuing the selection and implementation hearing, which the
court also issued at the June 9, 2022 hearing. Although the notice
of appeal does not reference the continuance, it clearly identifies
the hearing at which the continuance was issued. Moreover, the
continuance and the order requiring the Department to notify
mother of any required medical services for the children are
reflected in the same minute order.
Under a liberal construction of the notice of appeal, it is
reasonably clear that mother appeals from the orders issued at
the June 9, 2022 hearing, including the order continuing the
selection and implementation hearing. (See In re Daniel Z. (1992)
10 Cal.App.4th 1009, 1017 [construing notice of appeal to include
disposition order, even though notice identified only the
jurisdiction finding, because the jurisdiction finding and
disposition order were rendered at the same hearing and
included in the same minute order].) In any event, even assuming
the notice of appeal is ambiguous as to the order continuing the
selection and implementation hearing, the Department makes no
showing that it was misled or prejudiced by the ambiguity.
(Joshua S., supra, 41 Cal.4th at p. 272.) We will therefore
address the merits of mother’s challenge to that order.
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2. Mother hasn’t shown the court erred when it
continued the selection and implementation hearing.
In her opening brief, mother argues the court abused its
discretion when it continued the June 9, 2022 selection and
implementation hearing to allow the Department to submit a
complete permanency planning report. As we explain, mother
forfeited any challenge to the continuance by failing to object to
that order. In any event, the court did not abuse its discretion.
Under section 352, a juvenile court may continue “any
hearing … beyond the time limit within which the hearing is
otherwise required to be held, provided that a continuance shall
not be granted that is contrary to the interest of the minor. In
considering the minor’s interests, the court shall give substantial
weight to a minor’s need for prompt resolution of his or her
custody status, the need to provide children with stable
environments, and the damage of prolonged temporary
placements.” (§ 352, subd. (a)(1).) A continuance “shall be granted
only upon a showing of good cause and only for that period of
time shown to be necessary by the evidence presented at the
hearing on the motion for the continuance.” (§ 352, subd. (a)(2).)
We review an order granting a continuance for abuse of
discretion. (In re F.A. (2015) 241 Cal.App.4th 107, 117.)
As we noted above, mother did not object to the court’s
order continuing the selection and implementation hearing to
August 2022. In fact, mother’s counsel asked the court to, as part
of its order continuing the selection and implementation hearing,
require the Department to assess the children’s maternal
grandmother for possible placement. Mother, therefore, cannot
complain on appeal that the court erred in continuing the
selection and implementation hearing. (In re S.B. (2004) 32
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Cal.4th 1287 [generally, a reviewing court will not consider a
challenge to a ruling if an objection could have been but was not
raised below]; see also In re Richard H. (1991) 234 Cal.App.3d
1351, 1362 [“Since appellant acquiesced in the multiple
continuations, he cannot complain about any ‘foot dragging’ as a
ground to reverse the court’s decision.”].)
In any event, the court did not abuse its discretion when it
continued the selection and implementation hearing. As for good
cause, the court explained that it had yet to receive a full
permanency planning report for the children. Indeed, shortly
before the June 9, 2022 hearing, the Department learned that the
children could not be placed with their out-state-relatives. Thus,
the Department needed to complete an adoption assessment for
the children’s caregiver, Nekeya, before the court could select a
permanent plan for the children. The court, therefore, had good
cause to continue the selection and implementation hearing. (See
§ 352, subd. (a)(2) [court must give substantial weight to
children’s need for stable home environments].)
Likewise, continuing the selection and implementation
hearing did not contravene the children’s best interests. By the
June 9, 2022 hearing, the children had lived with Nekeya for
nearly the entirety of their dependency proceedings—or more
than three years. Nekeya was committed to adopting the
children, and the Department was finishing its assessment of her
as a prospective adoptive parent. Since S.B. and P.B. were closely
bonded to Nekeya, continuing the selection and implementation
hearing to allow the Department to assess whether the children
could permanently reside with her was in the children’s best
interests. Indeed, the children’s counsel didn’t object to the
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continuance, and the children do not challenge the continuance
on appeal.
Finally, mother fails to explain how she was prejudiced by
the order continuing the selection and implementation hearing.
(See Cal. Const., art. VI, § 13 [an appellate court will not reverse
a lower court’s ruling without a showing that the ruling resulted
in a miscarriage of justice]; In re K.H. (2022) 84 Cal.App.5th 566,
606 [“ ‘[T]o be entitled to relief on appeal from an alleged abuse of
discretion, it must clearly appear the resulting injury is
sufficiently grave to manifest a miscarriage of justice’ ”].)
For all these reasons, we reject mother’s claim that the
court abused its discretion when it continued the selection and
implementation hearing to August 2022.
3. Mother has forfeited the issues raised for the first time
in her reply brief.
In her reply brief, mother raises several new arguments.
Specifically, mother argues: (1) the Department violated her
First, Second, Fourth, and Fifth Amendment rights; (2) she was
denied the opportunity to cross-examine witnesses at an
unspecified hearing; (3) the Department engaged in abusive
discovery tactics; (4) the Department filed false reports; (5) the
court improperly shifted the burden of proof at the jurisdiction
hearing; (6) insufficient evidence supports the court’s removal
orders; and (7) mother is bonded to the children, and the children
are not adoptable.
We decline to address these arguments because they were
not raised in mother’s opening brief. (In re Karla C. (2010) 186
Cal.App.4th 1236, 1269–1270; see also REO Broadcasting
Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [“This
court will not consider points raised for the first time in a reply
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brief for the obvious reason that opposing counsel has not been
given the opportunity to address those points”].) Further, to the
extent mother challenges the court’s jurisdiction findings or
disposition orders, those issues are not properly before us because
mother never appealed the court’s June 2021 disposition orders,
which were appealable. (In re B.P. (2020) 49 Cal.App.5th 886, 889
[“the dispositional order on a section 300 petition is [an]
appealable judgment”].) Since those orders are now final, they
are no longer subject to appellate review. (In re A.A. (2008) 167
Cal.App.4th 1292, 1318 [appeal from most recent dependency
order may not challenge prior orders for which statutory time for
filing appeal has passed]; rule 8.406(a)(1) [a notice of appeal in a
dependency proceeding must be filed within 60 days after the
rendition of the judgment or the making of the order being
appealed].)
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DISPOSITION
The juvenile court’s June 9, 2022 order continuing the
selection and implementation hearing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
BENKE, J.*
*Retired Associate Justice of the Court of Appeal, Fourth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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