Filed 11/5/13; part. pub. order 12/3/13 (see end on opn.)




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



In re LUKE H., a Person Coming Under the Juvenile
Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                                            C071016
HEALTH AND HUMAN SERVICES,
                                                                   (Super. Ct. No. JD231552)
                  Plaintiff and Respondent,

         v.

LUKE H.,

                  Defendant and Appellant;

DEBORAH H.,

                  Objector and Respondent.

         Luke H., age 18, appeals from an order of the Sacramento County Juvenile Court
denying his petition for an order compelling his mother, Deborah H., to make his




                                                             1
nondependent sister, five-year-old Angel H., available for weekly visitation.1 Luke
contends (1) the juvenile court erred when it relied on In re A.R. (2012) 203 Cal.App.4th
1160 (A.R.) to deny his petition, (2) the court had authority to enter a visitation order
against mother with respect to a nondependent sibling, (3) the denial of his petition
seeking sibling visitation violated his constitutional right to due process, and (4) the court
denied him a meaningful hearing. We conclude the juvenile court did not have
jurisdiction to grant Luke’s modification petition for visitation with a nondependent
sibling. We find the A.R. case to be controlling on this issue. Luke’s attempts to
distinguish A.R. are not persuasive. The fact that the juvenile court had jurisdiction over
mother does not mean the court had jurisdiction to compel visitation with a sibling who is
not subject to the jurisdiction of the juvenile court. Further, in this case, Luke did not
have a constitutional right to visitation with his nondependent sibling. Finally, Luke has
forfeited his argument that there was no evidentiary hearing. In any event, this argument
fails because the juvenile court had no jurisdiction to order visitation with a
nondependent sibling regardless of any evidence that would have been presented.
Accordingly, we affirm the juvenile court’s order.




1       Welfare and Institutions Code section 303 allows the juvenile court to retain jurisdiction
over a dependent child of the court until the dependent attains the age of 21 years.

       Undesignated statutory references are to the Welfare and Institutions Code.

                                                 2
                    FACTUAL AND PROCEDURAL BACKGROUND2
                                   Originating Circumstances
       In April 2011, the Sacramento County Department of Health and Human Services
(the Department) received a referral from a mandated reporter expressing concerns about
Luke’s mental health related to ongoing abuse and exploitation by mother.
                                       Section 300 Petition
       In April 2011, a petition was filed alleging Luke came within section 300,
subdivision (c)3, in that he was suffering serious emotional damage as a result of
mother’s conduct. The petition alleged mother degrades and belittles Luke, deprives him
of sleep as a form of punishment, yells at him for hours past his bedtime, threatens to
“5150”4 Luke if he does not listen to her, and engages in other excessively controlling,
humiliating, and exploitive behavior. The petition alleged that, as a result, Luke suffered
physical symptoms including irritable bowel syndrome (IBS), rashes, shingles, and blood
in his stool.
       A separate, non-detaining petition was filed on behalf of Angel, a developmentally
delayed five-year-old girl who had been adopted by mother.




2       In September 2012, this court issued an opinion in mother’s appeal from the juvenile
court’s jurisdictional and dispositional orders. (In re Luke H. (C069827; Sept. 11, 2012 [nonpub.
opn.].) Our summary of facts is taken from that opinion.
3       Section 300, subdivision (c), provides that a child is subject to the jurisdiction of the
juvenile court if “[t]he child is suffering serious emotional damage, or is at substantial risk of
suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or
untoward aggressive behavior toward self or others, as a result of the conduct of the parent or
guardian or who has no parent or guardian capable of providing appropriate care.”
4      Section 5150 provides for 72-hour treatment and evaluation when a person, as a result of
mental disorder, is a danger to others or to himself or herself, or gravely disabled.

                                                  3
                                            Detention
       At a detention hearing in May 2011, the juvenile court found a prima facie
showing had been made that Luke comes within section 300. Luke was ordered detained
with the family of his best friend.
                                      Contested Jurisdiction
       At a contested jurisdiction hearing in June 2011, the juvenile court sustained the
section 300, subdivision (c), allegations. The court found Luke may suffer serious
emotional damage as a result of anxiety and depression.
       By stipulation of the parties, the juvenile court dismissed the section 300 petition
as to Angel.
                                      Contested Disposition
       At the conclusion of a contested disposition hearing, the juvenile court found by
clear and convincing evidence that there was a substantial risk Luke’s physical health and
emotional well-being would suffer if returned to mother. The court adjudged Luke a
dependent and removed him from mother.
                        Luke’s Section 388 Modification Petition
       Mother refused to allow visitation between Luke and Angel. She explained to a
social worker that, due to Luke’s past history of involvement with child pornography, she
was not comfortable letting Luke visit with Angel. In addition, allowing the visitation
would expose mother to further allegations and emotionally destabilize Angel who was
working to adjust to new family dynamics.
       In February 2012, Luke filed a section 388 modification petition (modification
petition) seeking to compel mother to make Angel available for weekly visits with him.
       The juvenile court ordered that a hearing take place in March 2012, “because the
best interest of the child may be promoted by the request.”
       In March 2012, mother filed opposition to Luke’s modification petition seeking
sibling visitation, citing her constitutional right to parent her nondependent child, Angel.

                                                4
       In March 2012, the juvenile court issued a tentative decision denying Luke’s
modification petition. In its ruling, the court stated, “[t]he decision is controlled by the
case of” A.R., supra, 203 Cal.App.4th 1160.
       At a hearing in April 2012, the juvenile court adopted the tentative decision as its
final decision. The court first held former section 388, subdivision (b), does not apply to
this case.5 The court next held the policy of “fostering of sibling relationships” is “to
protect groups of siblings who all come under the jurisdiction of the juvenile dependency
court and to emphasize the importance of the role of the Court and the social services
system once children become our children, to recognize the importance of keeping those
children together.” Expressly relying on A.R., supra, 203 Cal.App.4th 1160, the court




5      Former section 388 provided in relevant part:

         “(a) [T]he child himself or herself . . . may, upon grounds of change of circumstance or
new evidence, petition the court in the same action in which the child was found to be a
dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order
of court previously made . . . . The petition shall be verified and . . . shall set forth in concise
language any change of circumstance or new evidence that is alleged to require the change of
order . . . . [¶] (b) [A] child who is a dependent of the juvenile court, may petition the court to
assert a relationship as a sibling related by blood, adoption, or affinity through a common legal
or biological parent to a child who is, or is the subject of a petition for adjudication as, a
dependent of the juvenile court, and may request visitation with the dependent child, placement
with or near the dependent child, or consideration when determining or implementing a case plan
or permanent plan for the dependent child or make any other request for an order which may be
shown to be in the best interest of the dependent child. . . . The petition shall be verified and
shall set forth the following:

       “(1) Through which parent he or she is related to the dependent child.

       “(2) Whether he or she is related to the dependent child by blood, adoption, or affinity.

       “(3) The request or order that the petitioner is seeking.

       “(4) Why that request or order is in the best interest of the dependent child.” (Stats. 2011,
ch. 459, § 10, effective Oct. 4, 2011.)

                                                 5
held it would be acting in excess of its jurisdiction if it ordered visitation between Luke
and his nondependent sibling, Angel.
                                       DISCUSSION
       Luke contends the juvenile court erred when it denied his modification petition
seeking visitation with Angel, his nondependent sibling. Specifically, Luke contends
(1) the juvenile court erred when it relied on A.R. to deny his petition, (2) the court had
authority to enter a visitation order against mother with respect to a nondependent sibling,
(3) the denial of his modification petition seeking sibling visitation violated his
constitutional right to due process, and (4) the court denied him a meaningful hearing.
                                               I
                          The Juvenile Court’s Reliance on A.R.
       Luke contends the juvenile court’s reliance on A.R., supra, 203 Cal.App.4th 1160
was misplaced. This contention has no merit. In fact, A.R. is controlling in the resolution
of the modification petition.
       In A.R., the appellate court reversed the portion of a dispositional order entitling
A.M., a 17-year-old dependent child, to supervised visitation with her five-year-old half
brother, A.R., whose dependency petition had been dismissed. The A.R. court described
the limited jurisdiction of the juvenile court to make only those determinations authorized
by specific statutory authority. (A.R., supra, 203 Cal.App.4th at p. 1170.) The court
explained: “The filing of A.R.’s dependency petition vested the juvenile court with
subject matter jurisdiction, i.e., the inherent authority to deal with the case or the matter
before it. [Citation.] When the court dismissed A.R.’s petition following the
jurisdictional hearing, A.R. was no longer in need of the juvenile court’s protection and
its jurisdiction over him terminated. [Citation.]” (Ibid.)
       The A.R. court explained, “there is no statutory provision requiring sibling
visitation in these circumstances.” (A.R., supra, 203 Cal.App.4th at p. 1171.) The court
first considered section 361.2, which provides: “Where the court has ordered removal of

                                               6
the child from the physical custody of his or her parents pursuant to Section 361, the
court shall consider whether there are any siblings under the court's jurisdiction, the
nature of the relationship between the child and his or her siblings, the appropriateness of
developing or maintaining the sibling relationships pursuant to Section 16002, and the
impact of the sibling relationships on the child’s placement and planning for legal
permanence.” (Ibid.) A.R. reasoned that, “[b]ecause A.R. was not under the court’s
jurisdiction at the time of A.M.’s dispositional hearing, this section is inapplicable.”
(Ibid.)
          The A.R. court next considered section 388, subdivision (b), “which permits a
person who desires a sibling relationship with a child, who is either a dependent of the
juvenile court or the subject of a dependency petition, to petition the court to assert that
relationship and seek, inter alia, visitation with the dependent child.” (A.R., supra,
203 Cal.App.4th at p. 1171; italics added.) A.R. reasoned this statute “expressly requires
the filing of a verified petition on behalf of a person seeking sibling visitation with a
dependent of the juvenile court. Since no such petition was filed here, that section is
inapplicable.” (Ibid.)
          We reach the same conclusion here. By stipulation of the parties, the juvenile
court had dismissed the section 300 petition as to Angel. At that point, Angel was no
longer in need of the court’s protection and its jurisdiction over her terminated. Luke
filed his modification petition following the dismissal in Angel’s case and the disposition
hearing in this case. At that point, the court had jurisdiction over Luke, not Angel.
Because Angel no longer was under the court’s jurisdiction, section 361.2 is inapplicable
to the present case. Luke acknowledges section 388, subdivision (b), does not apply in
his case. The fact that section 388, subdivision (b), allows a modification petition to be
filed by persons other than a dependent child does not mean the petition may be targeted
at a sibling outside the juvenile court’s jurisdiction. Based on A.R., we conclude there is
no statutory authority providing for Luke’s visitation with Angel and the juvenile court

                                               7
had no jurisdiction to order such visitation. (See A.R., supra, 203 Cal.App.4th at
p. 1171.)
                                             II
     Juvenile Court’s Jurisdiction to Order Visitation with a Nondependent Sibling
       Luke argues A.R., supra, 203 Cal.App.4th 1160 is distinguishable because the
juvenile court had jurisdiction over mother and therefore, could issue a visitation order
against mother. In A.R., the custodial parent no longer was before the juvenile court.
This argument misses the point. The A.R. court concluded there was “no statutory
authority providing for” a court order compelling a nondependent child to visit a
dependent. (Id. at p. 1171.) The juvenile court’s jurisdiction over mother (Angel’s
custodial parent) does not matter. What matters is that the juvenile court had no statutory
authority to enter a visitation order regarding a nondependent sibling.
       Luke also attempts to distinguish A.R. because he sought a sibling visitation order
pursuant to subdivision (a), not subdivision (b), of former section 388. This distinction
does not make a difference in the juvenile court’s jurisdiction over a nondependent child.
       Former section 388, subdivision (a), identifies persons who are entitled to petition
the juvenile court “to change, modify, or set aside any order of court previously made.”
(See fn. 5, ante.) Nothing in the subdivision purports to identify the legal basis upon
which the juvenile court order may be changed, modified, or set aside. More specifically,
the subdivision does not purport to identify persons who, through the modification
process, may be made subject to an order of the court. Thus, while the subdivision
authorized Luke, a dependent child, to file a petition to change a court order, it did not
authorize the juvenile court to issue an order affecting a child outside the court’s
jurisdiction.
       Similarly, section 385 allows a juvenile court to “change, modify or set aside its
prior orders sua sponte.” (Nikolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 116.)



                                              8
But this procedural provision does not authorize the court to make substantive changes or
modifications that otherwise exceed the court’s jurisdiction.
       Luke argues that various statutory provisions support his contention that the
juvenile court had jurisdiction to order visitation with Angel. None of these provisions
provides such support. Luke relies on section 202, subdivision (a), which declares that
one purpose of the juvenile court law is to “strengthen the minor’s family ties whenever
possible.” However, the Legislature has not provided the juvenile courts with authority
to issue orders compelling or directing the behavior of minors who are outside the
court’s jurisdiction.
       Luke also relies on section 362, former subdivision (c), which provided: “The
juvenile court may direct any and all reasonable orders to the parents or guardians of the
child who is the subject of any proceedings under this chapter as the court deems
necessary and proper to carry out the provisions of this section.” (Italics added; Stats.
2000, chs., 908, 910, 911, § 1.5.) Here, the juvenile court considered Luke’s
modification petition but did not deem it necessary or proper. No abuse of discretion
is shown.
       Luke’s reliance on section 16002 is puzzling. By its terms, this statute applies
“when siblings have been removed from their home, either as a group on one occurrence
or individually on separate occurrences.” (§ 16002, subd. (a).) The statute has no
application to this case where only one sibling was removed.
       Luke cites section 362.1 and In re Valerie A. (2007) 152 Cal.App.4th 987, 1003
(Valerie A.) for the proposition that “the dependency statutory scheme allows a juvenile
court to make orders that preserve the relationship of dependent and nondependent
siblings.” (See In re Valerie A. (2006) 139 Cal.App.4th 1519.) The argument is untimely
because it is asserted for the first time in the reply brief. (Garcia v. McCutchen (1997)
16 Cal.4th 469, 482, fn. 10.)



                                             9
       In any event, section 362.1 provides that an order placing a child in foster care
shall provide “for visitation between the child and any siblings,” “[p]ursuant to
subdivision (b) of Section 16002.” (§ 362.1, subd. (a)(2); italics added.) As we have
noted, section 16002 applies where multiple children have been removed, either together
or separately. Thus, section 16002, and by extension section 362.1, have no application
where, as here, only one sibling is removed.6
                                              III
              Constitutional Right to Visitation with Nondependent Sibling
       Luke contends the juvenile court’s denial of his request for sibling visitation
violated his Fourteenth Amendment right to due process. (U.S. Const., 14th Amend.)
Relying on various authorities, Luke argues, “the sibling relationship is among the most
important in life” and “recognition of siblings’ fundamental right to visitation is
consistent with past United States Supreme Court decisions.” (Citing, e.g., Moore v. East
Cleveland (1977) 431 U.S. 494 [52 L.Ed.2d 531] (Moore).) Luke’s reliance on Moore is
misplaced.
       In Moore, a city housing ordinance limited occupancy of a dwelling unit to
members of a single family. “But the ordinance contains an unusual and complicated
definitional section that recognizes as a ‘family’ only a few categories of related
individuals. [Citation.] Because her family, living together in her home, fits none of
those categories,” the appellant was convicted of a criminal offense. In a case that
garnered no majority opinion, Moore held the ordinance violated the federal due process




6        The court in Valerie A., supra, 152 Cal.App.4th 987 stated, “Section 362.1 governs
visitation between a dependent child and a nondependent sibling.” (Id. at p. 1003.) The court
noted section 362.1’s reference to subdivision (b) of section 16002, but it did not consider
subdivision (a), which effectively limits section 16002 to removals of sibling groups. We
respectfully decline to follow Valerie A. on this point.

                                              10
clause. (Moore, supra, 431 U.S. at pp. 495-496, 505-521 [52 L.Ed.2d at pp. 535, 539-
550].)
         The salient aspect of Moore is a government policy (housing ordinance) that
conflicted with an extended family’s private decision to reside within a single household.
In further support of finding a constitutional basis for sibling association, Luke also relies
on Aristotle P. v. Johnson (N.D. Ill. 1989) 721 F.Supp. 1002, a case involving a
government agency (child welfare) practice to place siblings in separate placements
without providing visits among them on a reasonable basis. (Id. at pp. 1005, 1007, 1009-
1010.) Here, in contrast, Luke is not challenging a governmental policy or practice that
conflicts with a private family decision to allow Luke to visit Angel. Rather, Luke is
challenging the private decision of Angel’s custodial parent to not allow the visitation.
Contrary to Luke’s arguments and citations to various commentators on the importance
of sibling relationships, Luke’s right to sibling visitation in this case is not
constitutionally protected.
         Finally, Luke’s reliance on grandparent visitation cases in the family courts is also
misplaced. (E.g., Troxel v. Granville (2000) 530 U.S. 57; In re Marriage of Harris
(2004) 34 Cal.4th 210.) Grandparent visitation rights are statutory. There are no statutes
providing the juvenile court with authority to grant dependents the right to visit with
nondependent siblings.
                                              IV
              The Juvenile Court’s Hearing on Luke’s Modification Petition
         Luke contends not only that he had a right to petition for sibling visitation under
section 388, subdivision (a), but also that the allegations of his modification petition were
sufficient to warrant an evidentiary hearing. Luke acknowledges a hearing was held but
claims it was not “meaningful” because he was denied the opportunity to present
evidence in support of his petition.



                                               11
       Luke has forfeited this contention by failing to offer any such evidence at the April
2012 hearing in juvenile court. After the court issued its March 2012 tentative decision
to deny Luke’s modification petition, his counsel requested “further argument” but did
not request to present evidence. At the hearing, Luke’s counsel presented various
arguments to the juvenile court but did not seek to introduce evidence.
       Luke counters that a request to present evidence would have been futile because
the juvenile court believed it had no authority to grant the modification petition seeking
sibling visitation. As we have explained, the court was correct in ruling it had no
authority to order sibling visitation in this case. Therefore, such evidence would not have
made a difference in the juvenile court’s ruling. In any event, Luke has forfeited this
contention on appeal by failing to describe the evidence that would have been presented
or explain why it was reasonably likely to produce a different result. (E.g., People v.
Hardy (1992) 2 Cal.4th 86, 150; People v. Wharton (1991) 53 Cal.3d 522, 563.)
                                      DISPOSITION
       The order denying Luke’s Welfare and Institutions Code section 388 modification
petition is affirmed.



                                                      HOCH             , J.



We concur:



       BLEASE               , Acting P. J.



         MAURO              , J.



                                             12
Filed 12/3/13
                         CERTIFIED FOR PARTIAL PUBLICATION‫٭‬



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

In re LUKE H., a Person Coming Under the
Juvenile Court Law.

SACRAMENTO COUNTY DEPARTMENT OF                                     C071016
HEALTH AND HUMAN SERVICES,

                  Plaintiff and Respondent,                (Super. Ct. No. JD231552)

        v.

LUKE H.,                                                    ORDER FOR PARTIAL
                                                              PUBLICATION
                  Defendant and Appellant;

DEBORAH H.,

                  Objector and Respondent.


      APPEAL from a judgment of the Superior Court of Sacramento County, Jerilyn L.
Borack, J. Affirmed.

      Beth A. Melvin, under appointment by the Court of Appeal, for Defendant
and Appellant.

     John F. Whisenhunt, County Counsel, and Lilly C. Frawley, Deputy County
Counsel, for Plaintiff and Respondent.



‫٭‬       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part IV of the discussion.

                                               1
        The opinion in the above entitled matter, filed on November 5, 2013, was not
certified for publication in the Official Reports. For good cause it now appears the
opinion should be published in the Official Reports with the exception of part IV of the
discussion and it is so ordered.




FOR THE COURT:


          BLEASE             , Acting P.J.


         MAURO              , J.


          HOCH              , J.




                                             2
