Opinion
A158039
05-05-2020
In re K.O., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. C.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 5836DEP)
C.R. (Mother) appeals from a disposition order removing her daughter K.O. (minor) from her custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Sonoma County Department of Human Services (Department) took the newborn minor into protective custody based, in sum, on information that Mother tested positive for drugs during her pregnancy, that minor was in the neonatal intensive care unit (NICU) following birth due to mild respiratory distress, and that minor subsequently was jittery and hypertonic. The Department commenced this dependency proceeding by filing a petition alleging minor was a dependent within the meaning of Welfare and Institutions Code, section 300, subdivision (b). The amended petition alleged Mother's substance abuse placed minor at substantial risk insofar as Mother tested positive for methamphetamines, benzodiazepines, opiates, and alcohol while pregnant. The amended petition also alleged that the presumed father (Father) had knowledge of Mother's substance abuse and failed to protect minor, and that he also has a substance abuse problem.
All further statutory references are to the Welfare and Institutions Code.
The juvenile court detained minor. At the combined jurisdiction and disposition hearing, the court found true the allegation in the amended petition pertaining to Mother, and also found true the allegation concerning Father's failure to protect minor. The court declared minor a dependent, ordered her removed from her parents' custody, and ordered reunification services for both parents. Mother appeals.
DISCUSSION
Mother challenges the disposition order removing minor from her custody. She argues that there was insufficient evidence minor would be in danger if returned to Mother's custody and that reasonable alternatives to removal existed. She also contends the juvenile court failed to fully consider whether the Department made reasonable efforts to prevent or eliminate the need for removal and failed to state the facts underlying the removal decision as required by section 361. The Department responds that Mother forfeited these claims. We agree with the Department.
"As a general rule, a party is precluded from urging on appeal any point not raised in the trial court." (In re Richard K. (1994) 25 Cal.App.4th 580, 590.) Where a parent submits on a particular record, "the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved." (Id. at p. 589.) Under such circumstances, "the parent does not waive for appellate purposes his or her right to challenge the propriety of the court's orders." (Ibid.) But where a parent submits to the social worker's recommendation without introducing any evidence or offering any argument, the parent waives the right to contest orders that coincide with the social worker's recommendation. (Id. at p. 590.)
Here, Mother submitted to the petition on the basis of the Department's reports, which recommended the minor's removal from parental custody and the provision of reunification services. At the combined jurisdiction and disposition hearing, Mother further indicated she was submitting to the Department's recommendations. More specifically, she agreed to a judicial settlement conference and indicated she was generally agreeable to the services set out in the Department's case plan. That case plan contained the reunification services the juvenile court ultimately ordered. The case plan provided, among other things, that both parents would have visitation, clearly implying minor's removal from parental custody. Mother never objected to this portion of the case plan. Instead, after discussing other proposed amendments to the petition and the case plan, both parents indicated they were reaching a jurisdiction and disposition agreement. After the parents waived the court's reading of the disposition orders, the court adopted the Department's proposed findings and orders. Mother did not object when the court explicitly ordered minor removed from parental custody, ordered reunification services, and found clear and convincing evidence that the Department made reasonable efforts to prevent or eliminate the need for removal.
The one proposed service that Mother questioned at hearing was anger management classes. The Department indicated it would alter the case plan as to that proposed service, and it would hold a team meeting to further tailor the case plan to Mother's and Father's needs and schedules.
Mother contends sufficiency of the evidence claims are never waived, but the cases she cites—principally In re Brian P. (2002) 99 Cal.App.4th 616 and its progeny—do not suggest that the doctrine of forfeiture is inapplicable where, as here, a parent affirmatively agrees to the disposition order being attacked. (In re Richard K., supra, 25 Cal.App.4th at p. 590.)
Rather, Mother's cases stand for the proposition that "[w]hen the merits are contested, a parent is not required to object to the social service agency's failure to carry its burden of proof on the question of adoptability." (In re Brian P., supra, 99 Cal.App.4th at p. 623, italics added; In re Javier G. (2006) 137 Cal.App.4th 453, 464; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1559-1561; In re Joshua G. (2005) 129 Cal.App.4th 189, 200, fn. 12; In re Erik P. (2002) 104 Cal.App.4th 395, 399-400.)
Mother additionally argues the fact the juvenile court notified the parties of their appellate rights evidences that she did not waive her challenges to the dispositional order. This argument is unsupported and undeveloped, and we do not consider it. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
In any event, even if we were to address the merits of the sufficiency of the evidence claim, we would conclude the removal order is amply supported.
A dependent child may be taken from the physical custody of a parent with whom the child did not reside at the time the petition was initiated only if (1) the juvenile court finds clear and convincing evidence that the child's physical health, safety, protection, or physical or emotional well-being would be in substantial danger if the parent were to live with the child or otherwise exercise the parent's right to physical custody, and (2) there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the parent's physical custody. (§ 361, subd. (d).) " ' "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances.' " (In re Alexzander C. (2017) 18 Cal.App.5th 438, 451.) We review a removal order for substantial evidence. (Ibid.)
Here, as stated, Mother submitted on the Department's reports. Those reports established that Mother has a chronic substance abuse problem that seriously and negatively impacts her life. Specifically, she has past and recent criminal history related to her substance abuse; the Department previously substantiated prior referrals regarding Mother's neglect of other children related to her substance abuse; and Mother's two older children are in the custody of their other parent due to her substance abuse.
The reports also established that Mother's substance abuse persisted throughout her pregnancy with minor. Mother did not stop using drugs until about four or five months into her pregnancy, and she continued to use alcohol throughout and after the pregnancy. Minor exhibited symptoms of withdrawal around the time of birth and was placed in the NICU for six weeks while prescribed morphine. In the NICU, minor required constant holding to stop screaming. After being discharged from the NICU, minor continued to have difficulties such as being "stiff and tight."
Mother asserted she discovered she was pregnant with minor about three months into the pregnancy in November 2018. While Mother claims she stopped doing drugs after being prescribed Subutex in December 2018, and while Mother's doctor at New Beginnings told the Department that Mother had false positive tests in February and March 2019, the doctor also reported that Mother had a true positive test for alcohol and methamphetamine use in mid-January 2019 and that Mother admitted to such use. In any case, whether Mother stopped using drugs four months rather than five months into her pregnancy does not alter the analysis here.
We acknowledge the evidence indicates it was unclear whether Mother's prescription drugs, illegal substances, or alcohol use caused minor's withdrawal symptoms.
The reports further established that Mother's substance abuse problems remained untreated. Although Mother obtained care at New Beginnings clinic, she did not enter a substance abuse treatment program as recommended by her doctor. She claimed she could not engage in substance abuse treatment because she needed childcare for one of Father's children, but she also asserted her belief that substance abuse treatment does not work. She additionally claimed she does not have a substance abuse problem, but only has mental health issues.
The foregoing constitutes substantial evidence that, regardless of what caused the newborn minor's heightened needs, Mother's chronic substance abuse issues put minor at risk of neglect, and no other reasonable means existed to protect minor other than removal from Mother's custody. (§ 300.2 ["The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child"].)
Mother contends alternatives to removal existed, such as ordering her to: attend therapy and a substance abuse treatment program; receive regular visits and/or instructions from a public health nurse; and engage in continued drug testing coupled with unannounced visits to the home. Mother, however, fails to point to any evidence indicating these alternatives would have adequately curbed the risk to minor. With regard to ordering Mother to attend therapy and a substance abuse treatment program, Mother previously declined to attend substance abuse treatment despite her doctor at New Beginnings repeatedly urging her to do so. While Mother asserted this resulted from her need to provide childcare to Father's other child, she also expressed her belief that substance abuse treatment was unnecessary and ineffective. Furthermore, the Department's addendum report indicates Mother refused to cooperate with the Department. For example, the Department reported Mother responded to almost anything the Department said with a "barrage of angry texts," making meaningful discussion difficult, if not impossible. Mother and Father also "revoked all releases of information which mean[t] that the Department [could not] refer them for services."
For the first time in her reply brief, Mother also suggests the juvenile court could reasonably have placed minor with Father. This argument, however, is belated and will not be considered. (Opdyk v. California Horse Racing Board (1995) 34 Cal.App.4th 1826, 1830.)
In sum, substantial evidence supports the removal order.
DISPOSITION
The disposition order of the juvenile court is affirmed.
/s/_________
Fujisaki, Acting P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.