Opinion
A158037
04-08-2020
In re J.H., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. O.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUK-JVSQ-1918058-02, SCUK-JVSQ-1918059-02, SCUK-JVSQ-1918060-02)
Following a contested jurisdiction hearing, the juvenile court sustained allegations that mother, appellant O.G., physically abused her 13-year-old daughter, N.G., and was physically aggressive toward her younger children, N.G.'s nine-year-old sister, H.G., and their two-year-old half-brother, Jose H. The court found true allegations that on one recent occasion mother had pinned N.G. to the bed and angrily choked her until the adolescent gagged, while her younger sister H.G. overheard from a nearby room; mother also would punch N.G. on her arms and chest, including most recently one time in the car, and would slap the two younger children with an open hand, including the two-year-old little boy. The court also found true allegations that mother had been having relationship problems with the father of Jose H., and had been taking out her anger and aggression on the children. The court found the children were suffering serious emotional damage, and were in substantial physical and emotional danger in mother's custody. Details of additional evidence adduced at the jurisdiction hearing are summarized without contradiction in the respondent's brief.
The three children had been living with mother at the time these proceedings commenced, but had been detained and placed with their biological fathers: the two girls with their father, Juan G., and the toddler Jose H. with his father, Jose H., Sr.
At the conclusion of the contested jurisdiction hearing, the juvenile court proceeded immediately to disposition. On the recommendation of the agency, respondent Mendocino County Department of Social Services, with which the minors' counsel concurred, the court terminated jurisdiction and entered exit custody orders awarding sole legal and physical custody of the children to their respective fathers.
Mother now appeals, challenging solely the court's custody award. We affirm.
DISCUSSION
Mother contends the court abused its discretion by not restoring custody of the children to her at disposition, because the award of sole custody to the fathers was not supported by substantial evidence.
The agency urges numerous grounds for affirmance. It argues mother has forfeited this issue because she raised no objection to the recommended disposition, including the recommended custody awards, and that in any event the custody awards were well within the court's discretion. The agency argues there is ample substantial evidence to support the court's decision (evidence that is unnecessary to summarize for the reasons we explain below), and it faults mother's appellate counsel for presenting an incomplete, one-sided recitation of the evidence that misrepresents the record.
No reply brief has been filed.
"We review a juvenile court's decision to terminate jurisdiction and to issue an accompanying exit custody order for abuse of discretion, and may not disturb such rulings unless the court made an ' " ' "arbitrary, capricious or patently absurd determination." ' " ' " (In re C.W. (2019) 33 Cal.App.5th 835, 863 (In re C.W.).)
First, we agree that mother's challenge to the custody ruling has been forfeited. After the court sustained the jurisdictional allegations, it invited comments from all parties about disposition. Counsel for the minors submitted on her prior recommendation during the jurisdictional phase that the children should not be returned to mother, the fathers' lawyers concurred with the agency's recommendation for dismissal of the case with an award of sole custody to each father, and then mother's counsel said this: "Submitted based on the evidence. [¶] I don't believe the exit order has provided supervised visitation." Following some colloquy about visitation and the form of proposed orders, the court adopted the agency's recommendation, terminated jurisdiction and entered the custody orders that mother now challenges.
By failing to ask the court to award custody of the children to her, and furthermore not objecting when the other parties proposed an award of sole custody to the two fathers, mother has forfeited this custody issue. " 'A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as "waiver," applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. [Citations.]' A party may not assert theories on appeal which were not raised in the trial court. " (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686.)
Even had mother not forfeited her challenge to the custody award by her silence in the juvenile court, it would be unnecessary to examine any of the evidence because we would reject her argument for several other reasons. For one thing, we agree with the agency that mother's discussion of the evidence is one-sided and incomplete, which is not only improper but also a basis to affirm. An appellant who challenges the sufficiency of the evidence must set forth " 'all material evidence on the point . . . and not merely their own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact.' " (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.)
Having filed no reply brief, mother concedes as much. No discussion of the point is warranted.
Second, Mother's "no substantial evidence" argument founders on a legal obstacle: the juvenile court had no discretion to grant custody to mother upon terminating its jurisdiction. Having made jurisdictional findings that mother presented a danger to her children—findings mother does not challenge on appeal—the juvenile court would have abused its discretion had it terminated jurisdiction and given her custody of the children. (See In re C.W., supra, 33 Cal.App.5th at p. 864 [abuse of discretion to terminate jurisdiction and issue exit order awarding custody to father where circumstances had not improved since he was found at jurisdiction hearing to pose danger to son; "By awarding permanent custody to [father] in these circumstances . . . the juvenile court just ignored the risks it previously found existed"]; In re I.G. (2014) 226 Cal.App.4th 380, 386-387 [juvenile court lacked authority to terminate jurisdiction and return minor to legal and physical custody of parent who had not alleviated the dangers that necessitated out of home placement].) Simply put, and as we recently reaffirmed, " '[i]t is a clear abuse of discretion to make findings that a minor is at risk in [a parent's] home, yet return the minor home and terminate supervision and dependency.' " (In re C.W., at p. 864.) "When the juvenile court finds there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means to protect the minor without removal, removal is provided for by [Welfare and Institutions Code] section 361, subdivision (c)(1). Placement options for the minor are set forth in section 361.2, subdivisions (a) and (e). None of those options include placement with the still offending parent . . . ." (In re I.G., at p. 387.)
Finally, even if we construe mother's appellate argument as a challenge on substantial evidence grounds to the court's jurisdictional findings that the children were at substantial risk in her home, we would reject it. As noted, mother's discussion of the evidence is incomplete and one-sided, discussing only snippets of the evidence adduced at the jurisdiction hearing. Moreover, the court found mother was not a credible witness, mother had pressured her older daughter N.G. into recanting some (but not all) of N.G.'s accounts of physical abuse, and also found the younger daughter, H.G., credible and believed N.G.'s accounts of physical abuse. In arguing the evidence failed to show a current danger to the children, mother is essentially asking this court to reweigh the evidence and make credibility determinations, neither of which we are empowered to do. (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.)
This appeal borders on frivolous and arguably falls on the wrong side of the line. We refrain from issuing an order to show cause as to why appellate sanctions should not be imposed (see Cal. Rules of Court, rule 8.276), but we caution that in the future we will not hesitate to do so should similar problems recur.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.