Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles Count No. CK 64260y. A. J. Garcia, Commissioner.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Frank W. appeals from the dependency court’s combined order taking jurisdiction over his son, Jacob V., then removing Jacob from his custody (Welf. & Inst. Code, §§ 300, 361). He contends that the order violated his constitutional due process rights because the dependency petition was not based on his conduct and thus he was a non-offending parent. Because Frank W. placed Jacob in substantial danger to his physical and emotional health by continuing to live with Jacob’s mother, who was the offending parent, we affirm.
As is usual with such appeals, the facts and procedural history are lengthy and complex. We have tailored our statement of facts to fit the issues on appeal.
When Jacob V. was born in March 2006, his mother, Stephanie H., tested positive for PCP, but no drugs were detected in Jacob’s system. Mother was a long-time drug user with a criminal record for drug and alcohol use and battery. The Los Angeles County Department of Children and Family Services (DCFS) was notified and convinced mother to agree to a Voluntary Family Maintenance Plan, which required her to undergo drug counseling and submit to drug tests. Jacob’s father, appellant Frank W., was also drug tested. Because his test was negative, appellant was no longer required to test. Appellant said he had not known mother was using drugs while she was pregnant with Jacob and that he could not control mother because she was an adult.
We will sometimes refer to mother and appellant collectively as the parents.
When mother failed her drug tests and otherwise did not comply with the family maintenance plan, DCFS went to the parents’ home on July 6, 2006, to detain Jacob and place him in protective custody. Appellant fled with Jacob, but later went to a DCFS office without the child to ask that mother be given another chance to complete her counseling and drug testing. A DCFS social worker convinced appellant to turn Jacob over to DCFS the next day. On July 11, 2006, DCFS filed a petition with the dependency court asking the court to declare Jacob a dependent child because mother’s drug use and criminal record posed a risk of physical and emotional harm to Jacob. (Welf. & Inst. Code, § 300, subd. (b).)
All further undesignated section references are to the Welfare and Institutions Code. Also named in the petition was Eric H., Sr., the father of mother’s six-year-old son, Eric H., Jr. The petition alleged that the child Eric was at risk of harm due to drug use by both parents, and that petition was eventually sustained. This appeal does not concern the other child and father, however, and we will not mention them again.
Appellant was not named in the petition and throughout the proceedings was considered to be a non-offending parent. At the July 11, 2006, detention hearing, counsel was appointed for appellant, and appellant was notified of and appeared at all further hearings with counsel. It is undisputed that throughout the proceedings appellant and mother continued to live together. The DCFS detention report prepared for the July 11 hearing recommended taking Jacob from the home and placing him in protective foster care. When asked by the court at that hearing whether he wished to be heard on the subject of the detention, appellant’s counsel simply submitted and asked that appellant have unmonitored visits. The court agreed to that request, found that detaining Jacob was proper, and ordered that Jacob not live with his parents until allowed to do so by the court.
A combined jurisdiction and disposition hearing was held on August 17, 2006. According to DCFS reports prepared for that hearing, mother had not attended individual counseling and failed to appear for an August 2 drug test. The DCFS social worker concluded that Jacob was still at risk because, despite the many attempts to provide mother with assistance and counseling, mother was not committed to her own rehabilitation. Appellant told the social worker that because there were no charges against him, he did not understand why Jacob could not return home. He also felt that he and mother were trying to cooperate and that the case was being “blown out of control.” The social worker believed appellant was “unaware and unable to monitor” mother’s drug use and had failed to realize the extent of her drug use and its effect on Jacob. According to the social worker, appellant showed he was unable to provide proper care and supervision of Jacob, warranting placement outside the home. The court found the allegations of the petition true and sustained the petition as to mother. Because appellant was a non-offending parent he was not offered reunification services, but was allowed unmonitored visits. Appellant did not challenge the evidence in the DCFS report, ask to submit any evidence of his own, or object to the DCFS recommendations and the trial court’s decision.
At the request of DCFS, we have judicially noticed a March 1, 2007, minute order by which the dependency court ordered DCFS to provide appellant with reunification services.
Appellant contends the trial court violated his constitutional due process rights because it took custody of Jacob even though he was not named in the dependency petition and was a non-offending parent. He also contends the court failed to make a finding by clear and convincing evidence that it would be detrimental to leave Jacob in his custody.
DISCUSSION
Relying on our decision in In re Gladys L. (2006) 141 Cal.App.4th 845 (Gladys L.), appellant contends that he had to be named in the DCFS petition and found by clear and convincing evidence to be an unfit parent before the dependency court could take custody of Jacob from him. Because he was not named in the petition and was found to be a non-offending parent, he contends his constitutional due process rights were violated and that we must reverse the dependency court’s jurisdictional and disposition orders. We disagree.
Gladys L. involved an order terminating the parental rights of a presumed father who had never been named in the DCFS dependency petition and against whom no findings of parental unfitness had been made. Before that ultimate and terminal decision may be made, the dependency court must have filed a petition alleging parental unfitness, and such a finding must have been made. (Gladys L., supra, 141 Cal.App.4th at pp. 848-849.)
Because we are not considering an order terminating appellant’s parental rights in Jacob, Gladys L. is inapplicable. Instead, we are reviewing the dependency court’s initial assumption of jurisdiction and its determination that custody must be taken from the parents at least for the time being because one or both parents pose a sufficient risk of harm to the child. The court may assume jurisdiction over a child even if only one parent is unsuitable. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554; see In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [because the dependency court takes jurisdiction of the child, a jurisdictional finding against one parent is good as to both].) Therefore, the court properly assumed jurisdiction.
The court’s power to remove Jacob from appellant’s custody is governed by section 361. Subdivision (a) of that section states, in relevant part, that when a minor is found to be a dependent child under section 300, “the court may limit the control to be exercised over the dependent child by any parent or guardian . . . .” (Italics added.) Subdivision (c) of that section states that “[a] dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of [certain listed circumstances].” These include a finding of substantial danger to the minor’s health, safety, and emotional or physical well being if the minor were returned home. (§ 361, subd. (c)(1).) The dependency court’s August 17, 2006, minute order shows that it made precisely such a finding, and our review of the records shows that the court’s finding is supported by the evidence.
The minute order states that the court found: “By clear and convincing evidence pursuant to WIC 361(b); Substantial danger exists to the physical health of minor(s) and/or minor(s) is suffering severe emotional damage, and there is no reasonable means to protect without removal from parent’s or guardian’s physical custody.”
When a non-offending parent continues to live with an offending parent, or the evidence shows the non-offending parent is likely to resume living with the offending parent, the dependency court may be justified in taking custody of the child away from the non-offending parent. (See In re Steve W. (1990) 217 Cal.App.3d 10, 19-22, and cases cited therein (Steve W.).) For instance, in In re Van Vlack (1947) 81 Cal.App.2d 838, 838-839, a mother moved from California to Ohio with her daughter after the stepfather molested the child. When the mother returned to California and resumed living with the stepfather, the appellate court affirmed an order taking custody of the child from the mother. By contrast, the Steve W. court reversed an order taking custody of a mother’s children based solely on acts of the father because the dependency court had done no more than speculate that mother might reunite with the father or become involved with another dangerous man. (Steve W., supra, at pp. 22-23.)
The facts here are unlike those in Steve W. Appellant does not contest the dependency court’s findings that mother’s conduct made Jacob a dependent child under section 300 and that returning Jacob to mother placed him at a risk of harm. Nor does he contest (or even acknowledge) the evidence that he tried to hide Jacob from DCFS and that his attitude toward the proceedings led the DCFS social worker to conclude that he was unable to adequately protect and supervise Jacob. Finally, it is undisputed that he continued to live with mother and told the DCFS social worker that Jacob should be returned to live with both appellant and mother. It would be inappropriate for the court to remove Jacob from mother’s custody with one hand, then return him to mother with the other by leaving custody with appellant, who intended to continue living with mother. The dependency court’s express finding that Jacob had to be removed from parental custody is supported by both the facts and applicable law.
We hold in the alternative that appellant has waived his right to complain that the court removed Jacob from his custody. Before deciding to remove a dependent child from a parent’s custody, the court “shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending 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 the child from future harm.” (§ 361, subd. (c)(1).) Not only has appellant failed to raise these requirements on appeal, he never presented them as issues below. Instead, at the July 11, 2006, detention hearing, when the court asked whether appellant wished to be heard on the subject of detaining Jacob, he raised no objections and simply submitted. At the August 17, 2006, jurisdiction and disposition hearing, appellant made no objections to the proceedings, introduced no evidence, and made no arguments concerning the proposed custody recommendation. All issues relating to the dependency court’s August 17, 2006, disposition are therefore deemed waived. (In re Joshua G. (2005) 129 Cal.App.4th 189, 197-198 [waiver by failure to raise factual issue in dependency court]; Alliance for Children’s Rights v. Los Angeles County Dept. of Children and Family Services (2002) 95 Cal.App.4th 1129, 1139, fn. 4. [issues not raised in appellate brief]; In re Richard K. (1994) 25 Cal.App.4th 580, 588-590 [submitting on detention recommendation waives issue].)
DISPOSITION
For the reasons set forth above, the August 17, 2006, jurisdiction and disposition order is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.