Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court No. SJ11545B of San Diego County, William E. Lehnhardt, Judge.
IRION, J.
Joseph C., father of juvenile dependent Matthew D., appeals from orders entered at the 12-month permanency hearing, after the court found a return of Matthew to his custody would create a substantial risk of detriment to the minor. (Welf. & Inst. Code, § 366.21, subd. (f).) Joseph argues the court's finding of detriment is not supported by substantial evidence. The San Diego County Health and Human Services Agency (Agency) urges us to find this appeal moot as, subsequent to the hearing, Matthew was placed with Joseph. Alternatively, the Agency contends the court's finding of detriment is amply supported in the record and the orders should be affirmed.
All statutory references are to the Welfare and Institutions Code.
As we will explain, we decline to dismiss Joseph's appeal, and we affirm the orders made at the 12-month review hearing, as Joseph has waived his appellate challenges.
I
FACTUAL AND PROCEDURAL BACKGROUND
In October 2005, the Agency filed a petition under section 300, subdivision (j) on behalf of seven-year-old Matthew, alleging he was at substantial risk of suffering physical harm inflicted nonaccidentally by Joseph due to Joseph's physical abuse of Austin C., Matthew's brother.
A petition was filed on behalf of Austin, who is not the subject of this appeal.
At the detention hearing, the court found Joseph to be Matthew's presumed father, ordered Matthew detained in out-of-home care and ordered supervised visitation for Joseph. In December 2005, the court sustained the petition. Matthew was declared a dependent and placed with Joseph, who was ordered to comply with his case plan.
In May 2006, the Agency filed a supplemental petition under section 387, alleging Matthew was in need of a higher level of care, as Joseph had been arrested on domestic violence charges involving Nancy S., his girlfriend. The court sustained the supplemental petition. The court found the previous disposition ineffective and removed Matthew from Joseph's custody under section 361, subdivision (c). Joseph was ordered to participate in services and undergo a psychological evaluation.
Joseph received in-home support services, including parent training, referral to community services and rent assistance. He began individual therapy with Dr. Matthew, who was working with Joseph to accept responsibility for his actions. Joseph regularly visited Austin and Matthew, who had been moved to New Alternatives as the Agency had been unsuccessful in locating a suitable placement for the minors.
At the section 366.21, subdivision (e) six-month review hearing, the court was informed Joseph was doing well in therapy and that the parties agreed to allow him unsupervised visitation. The court ordered additional services and set a further review hearing for April 2007.
In February 2007, Matthew reported Austin displayed inappropriate sexualized behavior toward him during an unsupervised weekend visit with Joseph. When Matthew went to his father for protection, Joseph reportedly told Matthew to leave him alone as he was sleeping. When confronted with Matthew's allegations by a social worker, Joseph refused to acknowledge the possibility that the incident occurred, a stance he continued to maintain through July 2007.
The social worker's status review report prepared in connection with the July 2007 12-month permanency hearing acknowledged Joseph loved his children and wanted the best for them. Joseph had participated in services and made good progress in therapy, addressing the domestic violence and anger management issues that brought the family into the dependency system. However, the Agency was concerned with Joseph's continued refusal to believe that allegations of sexual abuse placed the children at risk, and wanted Joseph to resume therapy. Joseph did not believe he would benefit from therapy and was resisting resumption of that service until ordered to do so by the court.
In July, the case social worker recommended termination of services and the setting of a section 366.26 hearing. The social worker explained Joseph had reverted to seeing himself as the victim, blaming Matthew for ruining the family's 60-day trial visit, and refusing to resume therapy so that the family could address issues raised by Matthew in a safe environment.
The contested 12-month permanency hearing was held July 23, 2007. Joseph was present and represented by counsel. The court was informed that the matter had settled and that the Agency had agreed to provide additional services contingent upon Joseph's agreement to resume therapy. Joseph submitted on the social worker's recommendations made in the April 24 status review report. In accordance with those recommendations, the court found reasonable services had been provided to Joseph, a return of Matthew to Joseph's care would be detrimental, but there was a substantial probability Matthew would be returned home by the 18-month review date. The court continued Matthew's dependency.
Although the petitions which brought Austin and Matthew into the dependency system were filed on the same date, the minors' cases were on different tracks. Matthew was not actually removed from Joseph's custody until the section 387 petition was filed in May 2006. Thus, the July 2007 hearing was the 12-month hearing for Matthew and the 18-month hearing for Austin.
II
DISCUSSION
Joseph's sole argument on appeal is that the juvenile court was required to return Matthew to his legal custody at the 12-month review hearing because the Agency did not meet its burden of establishing that returning Matthew to his custody would create a substantial risk of detriment to Matthew's physical or emotional well being. (§ 366.21, subd. (f); David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789.) Before addressing this contention, we turn to the Agency's contention that the appeal is moot.
A. We Decline Agency's Invitation to Dismiss the Appeal as Moot
In its appellate brief, and in a separately filed motion to dismiss, the Agency contends Joseph's appeal should be dismissed as moot because, subsequent to this appeal, Matthew was placed with Joseph. Joseph and minor's counsel respond that the appeal is not moot because Matthew was merely placed with Joseph, while jurisdiction and juvenile court supervision continued.
On January 8, 2008, this court ordered that Agency's motion to dismiss would be considered concurrently with the appeal.
"[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.) "The question of mootness in a dependency case should be decided on a case-by-case basis . . . ." (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.)
Matthew's physical placement with Joseph at the 18-month review hearing does not resolve the legal question apparently presented by Joseph as to whether, in the absence of substantial evidence establishing detriment, the court was required at the 12-month review hearing to terminate its jurisdiction and return Matthew to Joseph's legal custody. Joseph's response to Agency's motion to dismiss states: "Matthew has still not been returned to appellant's custody; he was placed with him at the 18-month review hearing. However placement and custody are two very different things."
There thus remains a live controversy between the parties as to the appropriate remedy when substantial evidence does not support a court's detriment finding made at a 12-month review hearing. Therefore, we decline to find Joseph's appeal moot.
We deny Agency's request for judicial notice. (In re Zeth S. (2003) 31 Cal.4th 396.)
B. Joseph's Appellate Challenges Are Waived. Even Were We to Address His Claims, We Determine the Court's Finding of Detriment Is Supported by Substantial Evidence.
This appeal presents two questions. First, does substantial evidence support the juvenile court's finding of detriment made at the 12-month review hearing? Second, if substantial evidence of detriment is lacking, in the absence of an express statutory directive to terminate its jurisdiction, such as that which exists when substantial evidence of detriment is found lacking in review hearings conducted under section 364, was the court required to terminate its jurisdiction and return Matthew to Joseph's legal custody? We need not decide either question, however, as Joseph has forfeited his appellate challenges.
Ordinarily, submitting "on a social worker's recommendation dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders. Consequently, a parent who submits on a recommendation [forfeits] his or her right to contest the juvenile court's decision if it coincides with the social worker's recommendation." (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813; In re Richard K. (1994) 25 Cal.App.4th 580, 590.)
Although commonly referred to as "waiver," this legal doctrine is more appropriately called "forfeiture." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
Here, as minor's counsel points out, the record establishes that Joseph withdrew his request for a contested 12-month review hearing and submitted on the social worker's recommended findings and orders made in the April 24 status review report. The court made the recommended findings and orders. By submitting on the social worker's recommendations, including the recommended finding of detriment, Joseph has forfeited any appellate claim that insufficient evidence supports the court's 12-month review hearing findings and orders.
Even were we to review Joseph's claim as to the sufficiency of the evidence supporting the court's finding of detriment, we would affirm the orders.
In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Instead, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Here, the record establishes that Joseph lacked protective instincts as to Matthew. Joseph refused to acknowledge even the possibility of the truth of Matthew's report that Austin touched him inappropriately in February 2007. Joseph stopped therapy and did not think he would benefit from further counseling, even in the face of very clear allegations of abuse from Matthew. The social worker opined that Joseph saw himself as the victim, rather than showing appropriate care and concern for Matthew. This evidence amply supports the court's 12-month review hearing finding that return of Matthew to Joseph's care would create a substantial risk of detriment to Matthew's safety, well-being or protection.
As we determine substantial evidence supports the court's detriment finding, we do not reach Joseph's claim that Matthew should have been returned to his legal custody.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J.,McDONALD, J.