Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. CK82962, Jacqueline Lewis, Juvenile Court Referee.
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
PERLUSS, P. J.
Jose V. appeals from the juvenile court’s disposition order requiring him to attend a 52-week domestic violence program after the court sustained allegations in a petition filed pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging he had physically abused his four children, seven-year-old Jose V., Jr., five-year-old Pedro V., two-year-old L.V. and one-year-old Jesus V., and their half-sibling, 12-year-old Carlos C., and had an unresolved history of alcohol abuse. Jose contends the court erred in ordering him to participate in the domestic violence program, which was not part of the proposed disposition plan to which he had agreed in mediation with the Los Angeles County Department of Children and Family Services (Department), without expressly advising him he had a right to withdraw his no contest plea and to request a fully contested jurisdiction hearing. We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The Department received an emergency referral on July 1, 2010 alleging the children were victims or at risk of physical abuse from Jose. They were detained the same day and placed together in shelter care. A section 300 petition was filed on July 7, 2010 alleging, in part, Jose had physically abused Carlos on July 1, 2010 by hitting him in the face with a thrown shoe, on prior occasions had hit him with a fist and belt and had locked him in a bathroom or a shed for extended periods of time. It was also alleged Jose had physically abused Jose, Jr., Pedro and L.V. by striking them with a belt and other objects. The petition further alleged Jose has a history of alcohol abuse and is a daily abuser of alcohol, which created a detrimental home environment and placed the children at risk of physical and emotional harm. With respect to the children’s mother, Juana C., the petition alleged she had struck Jose, Jr. with a belt on prior occasions and had failed to protect the children even though she knew of Jose’s ongoing physical abuse.
The petition alleged the whereabouts of Ramon V., the alleged father of Carlos, was unknown and further alleged he had failed to provide Carols with the necessities of life including food, clothing, shelter and medical care.
At the detention hearing Juana indicated she had separated from Jose and was now living with her sister in San Bernardino. She advised the court she feared Jose, with whom she had been living for 10 years, and wanted to keep her new address confidential. The court found a prima facie case had been established that the children were described by section 300, subdivisions (a), (b), and (j), and that continuance in the homes of Jose or Juana created substantial danger to their physical health and was contrary to their welfare. The court ordered referrals for Juana to a domestic violence support group, parenting and individual counseling and for Jose to “a batterer’s intervention program, ” parenting, individual counseling and “alcohol rehab with random testing.”
As to Carlos, the court also found a prima facie case he was a child described by section 300, subdivision (g) (child left without provision for support), as a result of the failure of Ramon to provide him with the necessities of life.
After the Department prepared and filed its August 12, 2010 jurisdiction-disposition report, which contained additional details supporting the allegations of ongoing physical abuse and also described Jose’s severe verbal abuse and mistreatment of Juana, the parties participated in a court-ordered mediation. No agreement was reached with Juana, who continued to deny she had inappropriately disciplined or physically abused any of her children. Jose, however, agreed to plead no contest to an amended petition that modified somewhat the allegations of his repeated acts of physical abuse of the children. He also agreed to a proposed disposition plan that required him to participate in parenting education, an alcohol rehabilitation program, random and on-demand alcohol testing, individual counseling and, in the language of the mediation agreement, “anger management program (not 52 week program).” The agreement, which did not mention a domestic violence program, was signed by Jose and an attorney from the Office of the County Counsel, the Department’s lawyer. Neither Juana nor children’s counsel signed the agreement.
On August 26, 2010 the juvenile court accepted Jose’s plea of no contest to the amended petition, finding the plea had been freely and voluntarily made and there existed a factual basis for the plea. Before accepting the plea the court confirmed that Jose had reviewed the waiver of rights form with his attorney and with the assistance of a Spanish-language interpreter. Jose acknowledged he understood the form. The matter was continued to September 16, 2010 for a contested jurisdiction hearing for Juana. Because Jose had agreed to a disposition case plan, the court excused him from appearing on that date.
At the jurisdiction hearing, after admitting into evidence the August 12, 2010 jurisdiction-disposition report and its attachments (which included the July 7, 2010 detention report), and hearing argument, the court sustained amended failure-to-protect allegations against Juana (§ 300, subd. (b)), but struck the allegations of nonaccidental physical harm (§ 300, subd. (a)). Explaining its decision the court said, “Listening to argument in this case reminds me of sitting in on a domestic violence work group.... The court understands that the dynamics of domestic violence [are] such that mother failed because she was clearly unable to do that, but [from] the child’s perspective, which is what we look at in dependency, the mother failed regardless of the reasons.... The reality for me here is disposition, what services we put in place to assist the mother in not failing again.”
Turning to disposition, the court inquired whether there had been an agreement on disposition in mediation. Juana’s counsel indicated she had no agreement. County counsel then responded, “There was an agreement on the mediation agreement as to the father.” After the court was given a copy of the agreement, it stated, “I appreciate that this is a mediated agreement and father is not here because he has mediated the agreement; but that being said, the court is not in agreement with the mediated agreement. The father’s agreement is specifically that he do an anger management program and not a 52-week program. It is this court’s tentative to order a 52-week batterer’s intervention program.... I do believe that father’s threats to call immigration [to have Juana, who was not legally in the United States, and Carlos deported to Mexico]; the names he called the mother; the things that he said, and the fact that the mother truly had no other way to support the family do equate to a real threat, and to domestic violence.”
The court indicated its tentative case plan for Juana was a parenting class, individual counseling that addresses domestic violence and a domestic violence support group. However, rather than entering any disposition orders, the court continued the matter to enable counsel for Jose “to notice your client that the court is not in agreement with the mediated disposition case plan.”
At the contested disposition hearing on October 14, 2010 Jose and his counsel were both present. The court admitted into evidence the Department’s detention and jurisdiction-disposition reports, as well as several last minute reports, detailing Jose’s physical abuse of the children (“except for the baby”) and verbal abuse of Juana and the children. Counsel for the Department, the mother and the children all submitted on the court’s tentative disposition plan. Jose’s counsel then addressed the court, “Your Honor, I’ve spoken with father about the need to complete a 52-week domestic violence class. Father is currently enrolled already in an anger management course, and has completed numerous sessions of that. And he’s just requesting that the court abide by what the mediation agreement was. And I will submit.”
The court denied Jose’s request, indicating it did not believe anger management “is an appropriate modality here. The father’s behaviors are controlling that needs a batterer’s intervention program.” Accordingly, after making the appropriate findings to declare the children dependents of the juvenile court and to support their removal from their parents’ custody and control pursuant to section 361, subdivision (c), the court ordered reunification services for Jose consisting of parenting class, alcohol rehabilitation with random alcohol testing, individual counseling and a 52-week certified batterer’s intervention program.
DISCUSSION
Although there is a strong public policy encouraging dependency mediation to resolve conflicts and “to provide a problem-solving forum for all interested persons to develop a plan in the best interests of the child, emphasizing family preservation and strengthening” (§ 350, subd. (a)(2); see Cal. Rules of Court, rule 5.518), the juvenile court is not bound by any mediated resolution or agreement. (See In re Jason E. (1997) 53 Cal.App.4th 1540, 1547-1548; Cal. Rules of Court, rule 5.518(d)(9) [mediation agreement is to be presented to court for approval]; Super. Ct. L.A. County, Local Rules, rule 17.22(c) [mediation agreement to be submitted for judicial officer’s “review, approval, findings and orders”].) “Mediation is merely a tool to aid the parties in coming to amicable solutions to difficult family issues. While a court may look to a mediation agreement for guidance, or order that the parties engage in mediation in order to attempt to resolve differences within the confines of the orders of the court, any agreements reached by the parties are not binding on the dependency court.” (In re Lance V. (2001) 90 Cal.App.4th 668, 675; cf. People v. Akins (2005) 128 Cal.App.4th 1376, 1386 [trial court in criminal proceeding “always retains the discretion not to sentence in accordance with the terms of the plea, especially if it subsequently learns of facts or law that render the agreed sentence inappropriate”].)
Jose does not disagree with this established principle, nor does he argue the court’s order requiring him to complete a 52-week domestic violence/batterer’s intervention program, even though not requested by the Department, is not supported by the record. However, because he agreed only to attend a shorter anger management program as part of the mediation agreement, Jose contends he should have been given the opportunity to withdraw his no contest plea and to require the Department to prove its allegations of physical abuse and alcoholism at a jurisdiction hearing.
The Department has advised this court, because it did not request the order requiring Jose to complete a 52-week domestic violence program, “it takes no position on the issue in this appeal.” It has filed no brief.
Jose, who was represented by counsel at every stage of these proceedings, had ample opportunity to advise the court he wanted to withdraw his no contest plea in light of the court’s unwillingness to accept an anger management program, rather than a longer domestic violence program, as an adequate response to the case issues. Indeed, the juvenile court continued the disposition hearing for the specific purpose of allowing Jose’s counsel to confer with him about the court’s intent to require a batterer’s intervention program. Yet at no time—when Jose pleaded no contest following the mediation session, at the continued disposition hearing following the court’s statement it intended to require a 52-week domestic violence program or thereafter—did Jose or his counsel suggest to the juvenile court that this aspect of the mediation agreement was a “deal point” or indicate Jose’s agreement to plead to the amended petition was in any way contingent on the court’s acceptance of the entire proposed disposition plan as negotiated. Jose’s argument has thus been forfeited. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [forfeiture doctrine applicable in dependency proceedings]; In re Wilford J. (2005) 131 Cal.App.4th 742, 754 [“[t]he purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected”].)
In an apparent attempt to avoid the forfeiture issue, Jose argues that the juvenile court had a sua sponte obligation to expressly advise him he had a right to withdraw his no contest plea and to request a contested hearing and that its failure to do so violated his right to due process. Jose cites no authority recognizing any such constitutional requirement, and we are not aware of any support for his position. The juvenile court’s month-long continuance of the disposition hearing to allow Jose and his counsel to consult and to consider the court’s tentative disposition plan requiring Jose to complete a 52-week domestic violence program ensured that he received fair warning and an opportunity to respond. Nothing more was required. (See Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546 [105 S.Ct. 1487, 84 L.Ed.2d 494] [“[t]he essential requirements of due process... are notice and an opportunity to respond”]; In re Large (2007) 41 Cal.4th 538, 552 [“[t]he very purpose of giving the parties notice and the opportunity to be heard is to give them a chance to present information that may affect the decision”].)
As Jose notes, in criminal proceedings Penal Code section 1192.5 directs the trial court, when approving a plea of guilty or nolo contendere, to advise the defendant that it retains the discretion not to sentence in accordance with the terms of a plea agreement if it learns of facts or law that render the agreed sentence inappropriate and that the defendant may withdraw his or her plea if the change results in increased punishment. (See People v. Akins, supra, 128 Cal.App.4th at pp. 1385-1386.) But this is a statutory, not a constitutional, requirement, which does not apply to dependency proceedings. (See In re Patricia T. (2001) 91 Cal.App.4th 400, 407 [specific requirements for admonitions concerning waiver of rights in dependency proceedings, although “rooted in constitutional considerations, ” are set solely by Cal. Rules of Court, rule 1449 (now rule 5.682)].)
DISPOSITION
The juvenile court’s October 14, 2010 disposition order is affirmed.
We concur: ZELON, J.JACKSON, J.