Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J0-701806
Pollak, J.
Clark M., the father of a six- and five-year-old, appeals an order of the juvenile court placing his children in foster care, rather than with him, after they were removed from their mother’s custody. We find no error and shall affirm.
Background
On September 28, 2007, the Contra Costa County Children and Family Services Bureau (the bureau) filed petitions for both children under Welfare and Institutions Code section 300, subdivisions (a) and (b) alleging that on September 26, the older child “fell from her mother’s moving automobile and suffered numerous cuts, abrasions, and bruises. The child was wearing no safety restraint and none was in the car. The passenger door from which the child fell was defective and mother knew the door was defective, posing a risk to any passenger.” The petition additionally alleged that the mother “has a serious and chronic substance abuse problem which significantly impairs her ability to provide adequate care and support for the child. [¶] During August 2007, the home was found to be extremely dirty with dirty carpet, smell of animals and animal feces, dirty dishes and food on kitchen counters, and the backyard was filled with garbage. The children appeared in need of a bath. [¶] On September 26, 2007, when the child was injured falling from her mother’s car, the mother did not intend to seek medical care despite the child’s obvious injuries.”
The children were ordered detained. A second set of petitions was filed on October 2, which added allegations against the father. The father “has a history of domestic violence that places the child[ren] at risk,” and that “[a]lthough the child[ren]’s father participated in substance abuse treatment through Proposition Thirty-Six in the past, he continues to have a serious and chronic substance abuse problem which significantly impairs his ability to provide adequate care and support for the child[ren] in that he has numerous arrests and convictions” all of which involved alcohol or controlled substances. Finally, the new petition alleged that the father “failed to protect the child from neglect, although he was aware of the mother’s substance abuse and inadequate care of the child. Although father obtained joint custody of the child in family court on or about June 29, 2005, he has not seen the child in six weeks and cannot transport the child due to his license being revoked for driving under the influence.”
On October 11, the father “submit[ted] to the allegations of the amended petition.” Based on that submission, the juvenile court sustained the allegation that the father “has a substance abuse problem which impairs his ability to provide adequate care and support for the child.” The count alleging domestic violence was dismissed.
On October 16, the mother and county counsel entered into a mediation agreement in which the allegations pertaining to the mother were dismissed, with the exception of an allegation that the mother “has had a serious and chronic substance abuse problem and has recently relapsed, which threatens to impair her ability to provide adequate care and support for the child,” and the allegation that the older child fell from her mother’s moving automobile and sustained injuries. The mother stipulated that these two allegations supported jurisdiction. The agreement specified that the mother would “participate in drug testing,” “successfully complete an intensive outpatient drug program,” “develop an after-care plan to prevent further relapse,” and “take a traffic safety class.”
On October 22, the mother pleaded no contest to the allegations that she had a chronic substance abuse problem that impaired her ability to care for the child, and that the child fell from the mother’s moving automobile. The court found jurisdiction based on this plea and set a disposition hearing.
On November 13, 2007 a dispositional report was prepared, which recommended that the court “adjudge the child, [B.C.], a dependent under Welfare and Institutions Code section 300(b) . . . . The bureau respectfully recommends the court order family reunification services for the mother . . . and father.” The report noted, under the heading “Consideration of Placement with Non-custodial Parent,” that the father “had a recent driving under the influence conviction in addition to having a substantial criminal drug history. Father has not yet completed his court ordered treatment for substance abuse to date.” The report noted that the father “was granted joint physical custody of the children in 2005 by family court and had the authority to have the children a few days a week. However, father was not able to follow through with this without relying on his mother for transportation for the visits. Father had not seen the children for over a month when the children were detained.” The report further stated that the father “reports that he has not had any alcohol since his last court appearance; however, he also stated that he only drinks a beer once every few days.”
At the disposition hearing on December 10, the trial court heard testimony from the social worker, who opined that she was concerned about the father’s “long history of drugs and alcohol dating back to 1991. He did complete treatment . . . in ’04 as well as an outpatient program in ’04. And then relapsed in ’06. His blood alcohol was far above the legal limit. One four and one five. It was in the middle of the day, at three o’clock in the afternoon.” The social worker acknowledged that the children were not in the car or in the father’s care at the time. She testified that the father was in “a four and a half month program, which since he was convicted . . ., it’s been approximately 14 months. And he still hasn’t completed his four and a half month program. Also I would like to say that one of the mandates of the program is abstinence from alcohol and father said to me on 10/1, which I have in my case notes . . . that he still drinks two to three beers at a time a few days a week. Clearly not abstinent.”
The father’s supervisor at the restaurant where he works testified that “[h]e’s a really really hard worker. He’s an excellent worker. He’s always on time. He never calls in. . . . He is probably one of the hardest worker[s] I think I have.” She stated that he had never come to work smelling of alcohol and that she had never seen him drink. She stated that to get to work, the father “rides his bike” or “his mother gives him rides and I have given him rides home . . . .” She also testified that the father is “very good with his kids. . . . He’s a really good dad.”
The father argued that section 361, subdivision (c), governing when a child may be taken from the parents’ physical custody, applies and that the bureau had not met its burden under the statute. He argued, “Under Welfare and Institutions Code section 361(c), the [bureau] has the burden of showing by clear and convincing evidence that there is a substantial danger to the health and safety of [the children] and that there are no reasonable means of protection of the minors without removing them from their parents’ home, from [the father’s] home. [The father] has only a DUI. There are no other factors here that show evidence of harm or actual harm. The children were not in the car with [the father] when he received his DUI. They weren’t even in . . . the same town with him at the time.” He requested “voluntary family maintenance. The court has authority under 360(b) to grant informal means of supervision, and I’m asking the court to do that today. Alternatively, if the court feels it’s necessary to declare [the children] dependents of the court, I would ask that the court send the children home with their father and offer family maintenance.”
The court stated that it was “not terribly impressed . . . with [the] argument that well, he didn’t drive while he was drunk with the kid in the car. Or he didn’t drive with the child in the car while his license was suspended. Those aren’t persuasive. If you only look at the criminal history, he’s been a substance abuser for 16 years. Under the influence of controlled substance. Disorderly conduct. . . . Possession of controlled substance. DUI back in 2000. 11550 in 2004. Another under the influence of controlled substance. A DUI in 2006. And really nothing of substance . . . that’s been demonstrated to me . . . that he has addressed his issue. [¶] . . . [¶] Both of these folks are good parents. Good people. Both of them have a history of substance abuse and both of them had better take a good look at it before some child gets hurt, before Dad gets another DUI, and understand they are substance abusers. . . . [¶] This isn’t even a close case as far as whether or not the children would go home. Not even a close case. Not a fast track case at all, given the history of these folks. . . . They need to participate in services and recognize the issues here. And that hasn’t happened.”
The trial court adjudged the children dependents and, pursuant to Welfare and Institutions Code section 361, subdivision (c)(1), found a substantial danger to their physical health if they were returned home. The father timely appealed.
We note that the children are now in the father’s custody. In a report filed in advance of the six-month review hearing, the social worker reported that the father had successfully completed “an El Dorado County Drinking Driver program” on January 25, 2008, and that he had taken nine drug tests, all of which had been negative. The children were living in a foster care home at the time the report was prepared. The report recommended “returning the children to their father’s custody under a family maintenance plan and continuing the mother’s services.” At a hearing on April 28, 2008, the children were placed in the father’s custody under the supervision of the bureau. Because the father had obtained custody, the bureau filed a motion to dismiss the appeal as moot. The father opposed the motion to dismiss, arguing that the dispositional order was still significant, since, if the order stands and the children should again be removed from his custody prior to the dismissal of the dependency proceedings, which remain pending, he will be entitled to services only for the 12-month period following the initial removal from his custody. The maximum period for the provision of reunification services is not tolled by the parents’ physical custody of the child. (In re Zacharia D. (1993) 6 Cal.4th 435, 452.) This court denied the motion to dismiss. A review hearing was scheduled in the trial court for October 20.
Discussion
As relevant here, section 361, subdivision (c) provides, “A dependent child may not be taken from the physical custody of his or her parents . . ., unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . .: [¶] (1) 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 by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. . . . The court shall . . . consider, as a reasonable means to protect the minor, allowing a non-offending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect from harm. . . .”
“At a dispositional hearing, the court’s findings must be made on clear and convincing evidence. The court must find that the welfare of the child requires that she be removed from parental custody because of a substantial danger, or risk of danger, to her physical health if she is returned home and that there are no reasonable means to protect her without removing her.” (In re Kristen H.(1996) 46 Cal.App.4th 1635, 1654.) A reviewing court must “determine whether there is any substantial evidence to support the trial court’s findings. [Citation.] In making this determination we must decide if the evidence is reasonable, credible and of solid value—such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence.” (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) “Where insufficiency of the evidence is an issue, an appellate court reviews the entire record in the light most favorable to the order and determines whether any substantial evidence supports the conclusion of the trier of fact. [Citations.] However, where the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear.” (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.)
The father’s argument on appeal does not challenge the propriety of the juvenile court’s order under section 361, subdivision (c). For the first time on appeal he argues that the trial court erred by not considering whether the children should have been placed with him under section 361.2, which provides for placement with a noncustodial parent when the juvenile court removes children from a custodial parent in a dependency proceeding. “Section 361.2 establishes the procedures a court must follow for placing a dependent child following removal from the custodial parent pursuant to section 361.” (In re Marquis D., supra, 38 Cal.App.4th at p. 1820, fn. omitted.) Section 361.2, subdivision (a) provides, “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
The bureau first argues that the father waived his argument by failing to raise this contention below. (See, e.g., In re Daniel D. (1994) 24 Cal.App.4th 1823, 1832 [right to have children placed with maternal grandmother waived by mother’s failure to raise it in the juvenile court].) Although the father did not refer specifically to section 361.2, he was clear that he wished the children to be placed in his custody. Nonetheless, there was a particular need to raise the issue in the trial court since the applicability of section 361.2 turns on factual issues that the parties dispute. The parties disagree whether the father was a custodial or noncustodial parent since he had been awarded joint legal and physical custody in 2005 but had not had the children in his physical custody for approximately one month following the suspension of his driver’s license. There is no need to resolve this issue on the basis of a waiver, however.
Assuming that the father was a custodial parent, he was not entitled to have the children placed with him under section 361.2. Under section 361.2, the court may consider only a non-offending parent for placement. The amended petition cited the father’s use of alcohol and drugs, and his arrest for driving under the influence, as an additional basis for jurisdiction. The father does not challenge the jurisdictional finding and therefore also is an offending parent for the purpose of this statute. Moreover, the court’s finding that the father’s alcohol and drug abuse issues posed a substantial danger to the children, rendering placement with him inappropriate, may be read as an implied finding that, as of the entry of the dispositional order, placement with him under section 361.2 “would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
The father argues that there is no substantial evidence to support a finding that placing the children with him would have posed a risk to their safety. However, at the time the court made its dispositional order, father had not yet completed a substance abuse court program. Viewing the evidence in the light most favorable to the juvenile court’s order, although father denied recent use of alcohol he inconsistently reported to the social worker that he still drank “two to three beers at a time a few days a week.” Since the allegations against the father related to his abuse of alcohol, these facts provide substantial evidence to support the court’s order placing the children in foster care.
The father also argues that the bureau failed to make reasonable efforts to prevent removal as required by section 361, subdivision (d). However, he failed to make this argument in the juvenile court, and this cannot be determined in the first instance in the appellate court. “In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) The father did not argue that no reasonable efforts had been made to prevent removal in the juvenile court and therefore this argument is waived. Moreover, as noted in footnote 1 ante, the children are now in the father’s care.
Section 361, subdivision (d) provides as relevant here that “The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . .”
Disposition
The order is affirmed.
We concur: McGuiness, P. J., Siggins, J.