Stanford Law School - Robert Crown Law Library

Filed 5/27/04

IN THE SUPREME COURT OF CALIFORNIA

In re S.B. et al., Persons Coming
Under the Juvenile Court Law.
____________________________________)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY SERVICES, )

Plaintiff and Respondent,
S112260
v.
Ct.App. 2/5 B154825
S.M., )

Los Angeles County
Defendant and Appellant.
Super. Ct. No. CK39821

At a permanent plan hearing in a juvenile dependency matter (Welf. & Inst.
Code, § 366.26),1 the court appointed legal guardians for the minor, S.B. and,
without objection from the mother, ordered that visitation between the two be
determined by the legal guardians. We address two issues: (1) whether, by not
objecting to the visitation order, the mother forfeited her right to challenge that
order on appeal; and (2) whether the court erred in having the legal guardians
determine the question of visitation.

1
Unless otherwise noted, all further statutory references are to the Welfare
and Institutions Code.
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We hold that the mother’s failure to challenge the visitation order in
juvenile court did not preclude the Court of Appeal from considering the issue on
appeal, and that the juvenile court can under current law delegate to a legal
guardian the decision whether to allow parental visitation.
I
In November 1999, the Los Angeles County Department of Children and
Family Services (Department) took custody of S.B., then 11 years old, and her half
brother, J.M., then 7 years old. The Department filed a dependency petition under
section 300 alleging that the children came within the jurisdiction of the juvenile
court. The petition alleged, among other things, that the children’s mother failed
to ensure that the children attended school, that because of her emotional problems
she did not provide the children with the basic necessities of life, and that she was
unable to care regularly for the children. The petition further alleged that the
identity and whereabouts of the children’s fathers were unknown. This appeal
concerns only the minor S.B.
At the initial detention hearing (§ 319), the juvenile court ordered the
Department to detain the two children and to monitor visits with the mother. The
court appointed separate counsel for the children and the mother. At the
jurisdictional hearing (§ 345 et seq.), the court sustained the petition; it appointed
psychologist Steve Ambrose to evaluate the children and their mother.
At the dispositional hearing (§ 358), the court found that removal of the
children from the mother’s custody was necessary to protect them from substantial
danger to their physical health, and that they were suffering severe emotional
damage. It declared the children dependents of the court, placed them in the care
of the Department for suitable placement, and ordered the Department to provide
family reunification services. The Department placed the two children in separate
foster homes.
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Reunification services were not successful. The mother canceled some of
the Department-supervised visits with the children, and she was late for many
others. When she did visit, she verbally abused S.B. The court-appointed
psychologist concluded that the mother suffered from a “debilitating mental illness
that significantly impaired her ability to cooperate with a reunification case plan
and to provide a stable home life for her children.”
On July 27, 2001, the juvenile court terminated reunification services and
scheduled a permanent plan hearing. (§ 366.26.) At that hearing, the mother was
represented by counsel. Although the mother was in the courthouse, she did not
appear at the hearing. The court did not terminate the mother’s parental rights, but
it did appoint S.B.’s foster parents as her legal guardians. Without objection from
the mother’s attorney, the court ordered the legal guardians to make all decisions
concerning parental visits between S.B. and her mother. On appeal, the mother
challenged that order, contending that the issue of visitation could be determined
only by the juvenile court, not the legal guardians.
A divided Court of Appeal reversed and remanded the case to the juvenile
court, directing it to comply with the statutory language of either ordering
visitation with guidance as to the time, place, and manner of visits; or denying
visitation because of the detrimental effect on the child’s physical or emotional
well-being.
We granted the Department’s petition for review challenging the Court of
Appeal’s holding that the juvenile court erred in leaving it to the minor’s legal
guardians to determine visitation, if any, between S.B. and her mother. Our order
granting review directed the parties to brief the additional issue whether the
mother could challenge on appeal the juvenile court’s order notwithstanding her
failure to object in the juvenile court. While this case was pending before this
court, the Legislature amended the controlling statute, section 366.26, subdivision
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(c)(4), effective January 1, 2004. At this court’s request, the parties filed
supplemental briefs addressing the effect, if any, of the amendment.
II
The Department contends that the failure of S.B.’s mother to object to the
juvenile court’s order granting the legal guardians the authority to determine
visitation precluded the Court of Appeal from considering that issue. We disagree.
It is true that, as the Department contends, 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. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)2 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. (Id. at p. 590.)
Dependency matters are not exempt from this rule. (See, e.g., In re Dakota
S. (2000) 85 Cal.App.4th 494, 502 [failure to obtain supervising agency’s
assessment of prospective guardian under § 366.22, subd. (b)]; In re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1338-1339 [failure to request court to order bonding
study]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to challenge
setting of § 366.26 permanency planning hearing when court determined that no
reasonable reunification efforts were made].)
But application of the forfeiture rule is not automatic. (Hale v. Morgan
(1978) 22 Cal.3d 388, 394; see People v. Williams (1998) 17 Cal.4th 148, 161, fn.
6 [party’s failure to object in trial court does not deprive appellate court of

2
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. In contrast, a
waiver is the “ ‘intentional relinquishment or abandonment of a known right.’ ”
(People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9; People v. Saunders, supra, 5
Cal.4th at p. 590, fn. 6.)
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authority].) But the appellate court’s discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal issue. (See
Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, fn. 17; Hale v. Morgan, supra, at
p. 394.) Although an appellate court’s discretion to consider forfeited claims
extends to dependency cases (Rosa S. v. Superior Court (2002) 100 Cal.App.4th
1181, 1188; Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1459), 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.” (In re Chantal
S. (1996) 13 Cal.4th 196, 200.) Because these proceedings involve the well-being
of children, considerations such as permanency and stability are of paramount
importance. (§ 366.26.)
The Court of Appeal majority here did not abuse its discretion in
entertaining the mother’s challenge to the 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. Moreover, because the juvenile
court here had neither allowed nor prohibited visitation, but instead had delegated
to the legal guardians the authority to either allow or prohibit visitation, an
appellate determination on the validity of that delegation would add certainty and
stability to the child’s visitation.
III
At the time of the juvenile court proceedings in this case, former section
366.26, subdivision (c)(4) (hereafter former section 366.26 (c)(4)) provided in
relevant part: “If the court finds that adoption of the child or termination of
parental rights is not in the best interest of the child . . . the court shall either order
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that the present caretakers or other appropriate persons shall become legal
guardians of the child or order that the child remain in long-term foster care . . . .
The court shall also make an order for visitation with the parents or guardians
unless the court finds by a preponderance of the evidence that the visitation would
be detrimental to the physical or emotional well-being of the child.” (Italics
added.)

The italicized sentence had been construed by the Courts of Appeal in In re
Jasmine P. (2001) 91 Cal.App.4th 617 (Jasmine P.) and in In re Randalynne G.
(2002) 97 Cal.App.4th 1156 (Randalynne G.), with conflicting interpretations.
Jasmine P. held that the juvenile court could delegate to a legal guardian the issue
of visitation between parent and child. In the court’s words: “[W]here the child is
left in long-term foster care and not in a legal guardianship, then the juvenile court
shall order visitation with the parents or guardians unless the court finds by a
preponderance of the evidence that the visitation would be detrimental to the
physical or emotional well-being of the child.” (91 Cal.App.4th at p. 621, original
italics.) The section 366.26 hearing in this case occurred on November 27, 2001;
the Court of Appeal’s decision in Jasmine P. was filed on July 12, 2001. Here, in
leaving to the minor’s appointed guardians the determination of visitation between
the minor and her mother, the juvenile court’s ruling was in accord with the
Jasmine P. decision.
After the permanent plan hearing in this case, the Court of Appeal in
Randalynne G., supra, 97 Cal.App.4th 1156, disagreed with the holding of
Jasmine P., supra, 91 Cal.App.4th 617. It held that the juvenile court in a
dependency proceeding may not delegate to a minor’s legal guardian the issue of
visitation between child and parent. The Court of Appeal here followed
Randalynne G.
The statutory language directing the juvenile court to determine visitation
between parent and child, which was construed by the Courts of Appeal in
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Jasmine P., supra, 91 Cal.App.4th 617, in Randalynne G., supra, 97 Cal.App.4th
1156, and on appeal in this case, came at the end of a long paragraph concerning
both legal guardianships and long-term foster care placements. This created
uncertainty as to whether the statutory mandate that only the juvenile court, not the
legal guardian, determine the issue of visitation applied solely to foster care or to
both foster care and legal guardianships. Not surprisingly, this ambiguity has led
to different interpretations of the statutory language in the Courts of Appeal.
The ambiguity has now been eliminated by a statutory amendment that took
effect on January 1, 2004, while this case was pending before us. (Stats. 2003, ch.
813, § 7.) Whereas former section 366.26 (c)(4) comprised a long paragraph
lumping together legal guardianships and foster care placements, the amended
version deals with these two subjects in two separate paragraphs, designated
section 366.26 (c)(4)(A) and (B).
Section
366.26
(c)(4)(A),
which pertains to legal guardianships, provides:
“If the court finds that adoption of the child or termination of parental rights is not
in the best interest of the child, because one of the conditions in subparagraph (A),
(B), (C), (D), or (E) of paragraph (1) or in paragraph (2) applies, the court shall
either order that the present caretakers or other appropriate persons shall become
legal guardians of the child or order that the child remain in long-term foster care.
Legal guardianship shall be considered before long-term foster care, if it is in the
best interests of the child and if a suitable guardian can be found. A child who is
10 years of age or older who is placed in a group home shall be asked to identify
any individuals who are important to the child to identify potential guardians. The
agency may ask any child who is younger than 10 years of age to provide that
information, as appropriate.”
Section 366.26 (c)(4)(B), which concerns foster care placements, says: “If
the child is living with a relative or foster parent who is willing and capable of
providing a stable and permanent environment, but not willing to become a legal
guardian, the child shall not be removed from the home if the court finds the
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removal would be seriously detrimental to the emotional well-being of the child
because the child has substantial psychological ties to the relative caretaker or
foster parents. The court shall also make an order for visitation with the parents
or guardians unless the court finds by a preponderance of the evidence that the
visitation would be detrimental to the physical or emotional well-being of the
child.” (Italics added.)
The italicized sentence in section 366.26 (c)(4)(B) makes it clear that the
juvenile court’s obligation to “make an order for visitation” is triggered only when
the court decides to leave the child with a caretaker who is not willing to become
the child’s legal guardian, and not when, as here, the court appoints the child’s
caretaker as the child’s legal guardian. Thus, under the Legislature’s amendment
to section 366.26 (c)(4), a juvenile court is not precluded from delegating to the
appointed guardian the determination whether visitation is to occur between the
parent and the child. Here, the mother has not argued that this construction of the
amendment is in error.3

3
After the parties submitted supplemental briefs on the effect of the
enactment of the January 1, 2004 amendment to section 366.26(c)(4), and after
oral argument, the mother requested that we judicially notice Assembly Bill No.
2807 and the analysis of that bill by the Assembly Committee on Judiciary. That
legislation, introduced in the Assembly on February 4, 2004, would again amend
section 366.26(c)(4) by moving the sentence concerning visitation when the child
is placed with a relative or foster parent, and not a legal guardian, into a separate
and new subdivision that would then apply to “parents or guardians.” The
committee’s analysis contains a brief discussion under the heading “Author’s
amendment,” stating that this change is “to correct a drafting error” in Assembly
Bill No. 408, the legislation that amended the statute effective January 1, 2004.

The request for judicial notice of Assembly Bill No. 2807 and the analysis
of the Assembly Committee on Judiciary is granted. (Evid. Code, § 452, subd.
(c).) The existence of the legislation and the committee analysis does not,
however, affect our decision here. The bill has not been enacted into law, and we
generally “do not rely on evidence of the individual views of proponents of
legistlation.” (People v. Cruz (1996) 13 Cal.4th 764, 780, fn. 9; see also Quintano
v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062 & fn. 5.)
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Rather, the mother argues that applying the amended provision to this case
would constitute an improper retrospective application. She correctly points out
the general rule that statutes do not operate retrospectively unless the Legislature
plainly indicates otherwise. (Myers v. Philip Morris Companies, Inc. (2002) 28
Cal.4th 828, 840.) “A statute has retrospective effect when it substantially
changes the legal consequences of past events.” (Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 243.) Application of a statute that clarifies
existing law is not retrospective, because the true meaning of the statute has not
changed. (Ibid.)
Here, we need not decide whether the Legislature’s recent amendment to
section 366.26 (c)(4) changed the statute or merely clarified its meaning. If the
amendment simply clarified the meaning of the existing statutory provision, the
juvenile court acted properly in leaving it to the court-appointed legal guardian to
determine the issue of visitation. If, on the other hand, the recent amendment did
change existing law, then the juvenile court erred in delegating the visitation issue
to the guardian. But because on remand the amended statutory provision would
control, the juvenile court at that time, in compliance with the amended provision,
could again delegate control of visitation to the legal guardians. (See Tapia v.
Superior Court (1991) 53 Cal.3d 282, 288 [laws addressing future acts are
prospective in nature].) We therefore reject the mother’s contention that we
should remand the matter to the juvenile court directing that the court itself, rather
than the court-appointed legal guardians, determine the issue of visitation.4 This

4
Contrary to the mother’s assertion, our conclusion will not disrupt existing
guardianships in cases in which the juvenile court, rather than the legal guardian,
determined the issue of visitation. Section 366.26 (c)(4) as amended does not
prohibit a juvenile court from deciding the issue of visitation when it appoints a
legal guardian. Our holding that the juvenile court is not required to issue a
visitation order when a guardian is appointed does not mean that such orders are
statutorily prohibited. (See Cal. Rules of Court, rule 1465(d)(2) [court may issue

(footnote continued on next page)
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conclusion does not mean, however, that the mother has no legal recourse.
Section 388 allows any parent to petition the juvenile court and section 385 allows
the court on its own motion to change, modify, or set aside any order previously
made by the court.
The judgment of the Court of Appeal is reversed.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

(footnote continued from previous page)

visitation orders when appointing legal guardian].) Thus, our holding has no
effect on existing visitation orders in other cases where the juvenile court
appointed legal guardians for the minor.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re S.B.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 103 Cal.App.4th 739
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S112260
Date Filed: May 27, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: S. Patricia Spear, Temporary Judge*

__________________________________________________________________________________

Attorneys for Appellant:

Kathleen Murphy Mallinger, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Lloyd W. Pellman, County Counsel, Sterling Honea, Principal Deputy County Counsel, and Gary P. Gross,
Deputy County Counsel, for Plaintiff and Respondent.

Ann Miller Ravel, County Counsel (Santa Clara) and Charles W. Nickell, Deputy County Counsel, for
Santa Clara County Department of Family and Children’s Services as Amicus Curiae on behalf of Plaintiff
and Respondent.

William Wesley Patton for Whittier Law School Legal Policy Clinic as Amicus Curiae.

*Pursuant to California Constitution, article VI, section 21.
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Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathleen Murphy Mallinger
1762 Columbia Street
San Diego, CA 92101
(619) 234-2266

Sterling Honea
Principal Deputy County Counsel
648 Kenneth Hahn Hall of Administration
500 West Temple Street
Los Angeles, CA 90012-2713
(323) 526-6270

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Opinion Information

Date:	Docket Number:
Thu, 05/27/2004	S112260

Disposition
May 27 2004	Opinion: Reversed

Dockets
Dec 18 2002	Petition for review filed   respondent Los Angeles County Department of Children & Family Srvs
Dec 23 2002	Received Court of Appeal record   1 doghouse
Jan 22 2003	Petition for review granted; issues limited (civil case)   In addition to the issue raised in the petition for review, the parties are directed to brief and argue the question whether the validity of the trial court's visitation order may be challenged on appeal in the absence of an objection to that order in the trial court. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Feb 10 2003	Counsel appointment order filed   Kathleen Murphy Mallinger is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Feb 20 2003	Opening brief on the merits filed   respondent Los Angeles County Dept of Children and Family Services
Mar 24 2003	Answer brief on the merits filed   by counsel for appellant (S. M.)
Apr 14 2003	Reply brief filed (case fully briefed)   by respondent Los Agneles County Department of Children and Family Services
Apr 15 2003	Received application to file amicus curiae brief; with brief   Whittier Law School Legal Policy Clinic (non-party)
Apr 16 2003	Permission to file amicus curiae brief granted   Whittier Law School Legal Policy Clinic
Apr 16 2003	Amicus Curiae Brief filed by:   Whittier Law School Legal Policy Clinic (non-party) An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
May 23 2003	Received application to file amicus curiae brief; with brief   Santa Clara Co. Dept. of Family and Children's Svcs.
May 28 2003	Application for relief from default filed   by Santa Clara Co. Dept. of Family and Children's Svcs.
May 29 2003	Permission to file amicus curiae brief granted   Santa Clara County Department of Family and Children's Services.
May 29 2003	Amicus Curiae Brief filed by:   Santa Clara County Department of Family and Children's Services. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 10 2004	Case ordered on calendar   3-10-04, 1:30pm, S.F.
Feb 11 2004	Order filed   The parties are hereby directed to file with the Clerk of the Supreme Court on or before February 20, 2004, simultaneous letter briefs addressing the effect, if any, of the enactment of Assembly Bill No. 408, Stats. 2003, c. 813, effective January 1, 2004, on the issue of whether a juvenile court must under Welfare and Institutions Code section 366.26, subdivision (c)(4), as amended, make a specific order regarding parental visitation after a legal guardian is appointed for a child or may delegate visitation decisions to the guardian. Simultaneous reply briefs may be filed on or before February 23, 2004.
Feb 19 2004	Request for extension of time filed   counsel for aplt. (S. M) requests extension of time to March 3, 2004 to file the reply to letter brief and the list of additional authorities.
Feb 19 2004	Filed:   supplemental letter brief>>respondent Department of Children & Family Services
Feb 20 2004	Filed:   by counsel for aplt. (S. M. ) letter response to court's direction to address (AB 408).
Feb 23 2004	Extension of time granted   counsel for aplt. (S. M.) time to serve and file the reply to letter brief and additional authorities is extended to and including March 3, 2004.
Mar 8 2004	Filed:   by counsel for aplt. (S. M.) letter notification aplt. will not be filing a response to letter brief.
Mar 10 2004	Cause argued and submitted
Apr 29 2004	Request for judicial notice filed (granted case)   by counsel for aplt. ( S. M.)
May 4 2004	Opposition filed   to request for judicial notice>>respondent Department of Children & Family Services
May 27 2004	Opinion filed: Judgment reversed   OPINION BY: Kennard, J. --- joined by George, C.J., Baxter, Werdegar, Chin, Brown, Moreno, JJ.
Jun 28 2004	Remittitur issued (civil case)
Jul 6 2004	Received:   receipt for remittitur from CA 2/5
Jul 14 2004	Compensation awarded counsel   Atty Mallinger

Briefs
Feb 20 2003	Opening brief on the merits filed
Mar 24 2003	Answer brief on the merits filed
Apr 14 2003	Reply brief filed (case fully briefed)
Apr 16 2003	Amicus Curiae Brief filed by:
May 29 2003	Amicus Curiae Brief filed by:

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