Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK84441 Deborah Andrews, Judge.
Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
SUZUKAWA, J.
Brandon R. (Father) and Stacy G. (Mother) are the parents of Darion R. (born July 2010). Father appeals the juvenile court’s orders of November 5, 2010, finding Darion a dependent pursuant to Welfare and Institutions Code section 300, subdivision (g) and removing him from Father’s custody. We affirm the orders.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When Darion was born, Father was 17 and Mother was 21. At the time, Father and Mother were not living together because Father was in custody. Mother also has two older sons, J.G. and N.G., by two different fathers. In September 2010, all three children were detained by the Department of Children and Family Services (Department) after Mother took Darion and left the two older boys with family friends with no plans to return. The Department placed the two older boys in one foster home and Darion in another.
Neither those boys nor their fathers are parties to this appeal.
The Department filed a petition as to all three boys on September 29, 2010, containing allegations pursuant to section 300, subdivisions (b), (g), and (j). Father, who was still incarcerated, appeared at the detention hearing on September 29, 2010. He had been incarcerated in a youth camp since July 2010 for vandalism and was due to be released in December 2010 or January 2011. According to Father, he was detained at age 15 for being an accessory to robbery.
Mother told the social worker that Father and his family helped her and gave her a place to live while she was pregnant. When Father was working, he gave her money to buy “clothes and stuff.” Father told the social worker, “I want to take care of my son and be there for him. I want to take custody of him.” Father’s probation officer told the social worker that Father’s vandalism charge stemmed from an altercation with paternal grandmother’s boyfriend when Father broke a picture frame off the wall. In custody, Father was following the rules and behaving well. The probation officer expected that Father would be released in six months and placed on probation for one year.
The report indicated that Father told the social worker, “I used to smoke weed but I stopped when I got in trouble and got on probation.” The social worker reported that Father had shown remorse as to the situation in which Darion was placed and said that he wanted to be an active parent to his child. Father said that he was planning to attend any program available to achieve that goal. The Department recommended that Father receive reunification services.
On October 26, 2010, a jurisdiction/disposition hearing was held and the court received into evidence the Department reports. The hearing was continued until the following day.
On October 27, 2010, Father testified that after Mother became pregnant, she lived with him, the paternal grandmother, and the grandmother’s boyfriend for six months. He was in school full-time but worked four days a week cutting grass for paternal grandmother’s boyfriend’s landscaping business. Father was making approximately $150 per week and was giving Mother money for baby supplies. He was taken into custody for vandalism five days before Darion was born and he gave paternal grandmother $300 to take care of the baby. Father was going to be released from camp in December or January and was planning to go to school, get a GED, and find a job. He wanted to spend time with his son and take care of him. Father had previously been in custody for six months in 2009 for being an accessory to a robbery. When he was released in October 2009, he had moved back in with paternal grandmother.
The report prepared by the Department for the hearing indicated that paternal grandmother had not provided the information necessary to assess her suitability for placement. There currently were no other family members who had been assessed as suitable for placement.
Mother pled no contest to the allegations.
The court sustained, inter alia, the allegation in the petition pursuant to section 300, subdivision (g), that Father failed to provide Darion with the necessities of life, endangering his physical and emotional health and safety. The court continued the disposition hearing until November 5, 2010. Father’s counsel said Father would waive his appearance for the November 5 hearing, since he was in agreement with the Department’s case plan.
The court stated: “The Court agrees father’s testimony is not credible, that somehow working a couple hours a day, maybe four days a week mowing lawns, he’s netting a hundred fifty dollars. That’s extremely generous for landscaping work. I just find it really hard to believe. In addition, [Father] testified to a significant extent about his future intention to support the child, but the reality is that since before the child was born continuing right up to now and going until after the first of the year, [Father] is in custody, and he is not supporting the child, and he’s been in custody since before the child was born. So the current situation is that the child is not being provided for and was not being provided for from the time of his birth.”
On November 5, only the attorneys appeared. The court noted that there was a case plan signed by Father and Father’s counsel said she agreed with the plan. The case plan, filed that day, states that Father agreed to individual counseling, parent education, and monitored visitation in accordance with his camp rules. The placement of Darion was indicated as “S/P, ” which, based on the court’s minute order, we assume means “suitable placement.” Another information form filed with the court that day stated that Darion was placed with his siblings at their foster home in Palmdale.
The court found pursuant to section 361, subdivision (c) that there was clear and convincing evidence that there would be a substantial danger to the children if they were returned to their parents, and that the care, custody, and control of the children should be awarded to the Department for suitable placement. Father was ordered to receive reunification services.
A discussion then ensued regarding the suitability of paternal grandmother either as a monitor for visits or for placement. The Department’s counsel reported an incident during which the paternal and maternal grandmothers had encouraged the foster mother to allow them to visit and not to disclose these visits to the social worker. Neither grandmother was approved to visit. The court ordered further investigation of paternal grandmother’s suitability.
Father appealed from “All juris/dispo findings” on the dates October 26, 2010, October 27, 2010, and November 5, 2010.
DISCUSSION
Father contends there is insufficient evidence to sustain the section 300, subdivision (g) allegation in the petition because that subdivision does not apply to an incarcerated parent who is able to arrange care for his child and the court failed to make a finding of detriment pursuant to section 361.2.
I. Sufficiency of the Evidence
Section 300, subdivision (g) provides that a court may adjudge a minor to be a dependent child of the court if: “The child has been left without any provision for support;... the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child....”
Father contends that the dependency court based its finding of jurisdiction on the fact of his incarceration and the mistaken belief that he had not made arrangements for the care of Darion. He argues that incarceration cannot form the basis of jurisdiction. However, the court’s comments indicate that it did not base its finding solely on the fact that Father was incarcerated. It found Father’s testimony about the amount of financial support that he could provide was not credible and concluded that he could not provide for Darion. We will not disturb the dependency court’s determination of credibility. (In re David M. (2005) 134 Cal.App.4th 822, 828.)
Moreover, with respect to the arrangements made for Darion, the record reveals that Mother was not living with Father when she gave birth. She left the children in the care of another couple. Section 300, subdivision (g) requires proof that the parent is unable to arrange for care at the time of the hearing. (In re Aaron S. (1991) 228 Cal.App.3d 202, 210-211.) Although Father said that paternal grandmother was willing and able to care for Darion, no such arrangement had been made at the time the court sustained the jurisdictional allegations. Unlike In re S. D. (2002) 99 Cal.App.4th 1068, cited by Father, paternal grandmother did not come to court and testify that she was willing and able to care for Darion, nor did Father testify that he had made such arrangements. He testified that he wanted to get his own apartment as soon as he got out of custody. Paternal grandmother had not provided the Department the necessary character references or information about her criminal history. As a result, at the time of the jurisdictional hearing, paternal grandmother had not been approved as a caretaker or a monitor.
We also note that in light of Father’s altercation with paternal grandmother’s boyfriend, which led to his incarceration, placement of Darion with paternal grandmother might not have been an appropriate placement.
Based on this record, sufficient evidence supports the court’s jurisdictional finding under section 300, subdivision (g).
II. Removal of Custody
The dependency court, when addressing custody, found by clear and convincing evidence pursuant to section 361, subdivision (c) that there would be a substantial danger if Darion was returned home and there were no reasonable means by which his physical health could be protected without removing him “from the parents’ physical custody.”
Section 361, subdivision (c) provides that: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances...:... [¶] (5) The minor has been left without any provision for his or her support, or a parent who has been incarcerated or institutionalized cannot arrange for the care of the minor, or a relative or other adult custodian with whom the child has been left by the parent is unwilling or unable to provide care or support for the child and the whereabouts of the parent is unknown and reasonable efforts to locate him or her have been unsuccessful....”
Father argues that the court did not consider section 361.2, which provides that: “(a) 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....”
“At a dispositional hearing, the court’s findings must be made on clear and convincing evidence.... On review, we employ the substantial evidence test, however bearing in mind the heightened burden of proof. [Citations.]” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
The Department argues that because Father agreed to its case plan, he has forfeited his right to dispute the custody ruling. Father argues in his reply brief that the case plan document does not address the issue of custody and that he repeatedly made his wishes about Darion’s custody known to the Department and the court.
The Department’s recommendation prior to the hearing was placement in a “[l]icensed foster family home.” Father signed a disposition case plan that agreed to Darion’s suitable placement in Department custody and monitored visitation. Father signed this document while he was represented by counsel and it was submitted after he had testified about wanting custody. At the November 5 dispositional hearing, Father’s counsel did not disagree with the signed case plan. After the court ordered the children removed, there was a specific discussion about the problems that had arisen with paternal grandmother and it was made clear that Darion could not be placed there without a specific request and approval.
Here, Father’s signature on the case plan and his counsel’s representation that he agreed with the case plan amount to a forfeiture of his right to challenge the placement on appeal. In effect, he was consenting to a suitable placement of Darion as determined by the Department. Darion was already in foster care and paternal grandmother’s home had not been approved for possible placement. Father cannot now complain about the removal order and placement with the foster family once he agreed to submit on the issue. (In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.)
In any event, we find no error. Father is correct that he was a noncustodial parent who desired to assume custody of the minor and that a brief period of incarceration alone cannot support a finding of detriment. (In re Isayah C. (2004) 118 Cal.App.4th 684, 700.) However, Father was still a minor and did not have a plan in place for the care of Darion. Therefore, even if the court had assessed possible placement of Darion pursuant to section 361.2, it would have had no option but to order the child placed in foster care.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.