Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. CK44432 D. Zeke Zeidler, 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, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Diane D. (Mother), mother of Jacob D., appeals from the judgment entered after the juvenile court declared the child a dependent of the court based on findings against Mother under Welfare and Institutions Code section 300, subdivisions (a) and (b), and at disposition removed the child from her care, custody and control. We affirm.
Statutory references are to the Welfare and Institutions Code.
The dependency proceedings regarding Jacob also involve two of his half-siblings, Jay and Alexis. Mother does not challenge the jurisdictional findings or disposition orders as to either Jay or Alexis.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Section 300 Petition and Detention
On April 6, 2010, the Department of Children and Family Services (DCFS) filed a section 300 petition regarding Jacob, then three years old, Jay, then six years old, and Alexis, then two years old. Under section 300, subdivisions (a), (b) and (j), the petition alleged as to Mother that the children were exposed to “violent physical altercations” between Mother and Alexis’s father, Francisco; Mother had failed to protect the children because Francisco lived in the home with her and the children and had unlimited access to them; and Francisco also had physically abused Jay on numerous occasions of which Mother was aware. As to Jacob’s father, the petition alleged under section 300, subdivisions (b) and (g), that he “has failed to provide the child with the necessities of life including food, clothing, shelter and medical treatment. The father is incarcerated. The father’s failure to provide for the child endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”
The juvenile court dismissed allegations against Jay’s father under section 300, subdivision (b), and they are not relevant to this appeal. The court sustained amended allegations against Francisco after a no contest plea. Those allegations also are not at issue on appeal.
According to the detention report, dated April 6, 2010, DCFS received a child abuse referral on April 1, 2010 claiming abuse by Francisco against Jay. Jay told an El Monte Police Department officer and a DCFS investigator, that Francisco had hit Mother’s head in front of Jay and that he hits Jay as well. Jay stated that he was afraid of Francisco, who “is very mean to him and to his mom.” Jacob, who is autistic, “does not have fluent conversations” and was not able to explain what happened. Mother indicated that Francisco is her boyfriend and that she has been living with him for about three years. Mother admitted only one incident of domestic violence about two months prior, and “she did not call the police because she knows that [Francisco] will not hit her anymore.” Mother stated that Francisco left the house that day, she does not know where he is and he does not have a telephone for her to call him. The maternal grandmother denied seeing Francisco hit the children or Mother, but said she had witnessed Francisco push Mother on three occasions. Jacob and Alexis were placed with a nonrelated friend of Mother, and Jay was placed in foster care. The detention report also stated that Mother’s three older children had been the subjects of dependency proceedings, her parental rights had been terminated and the children had been adopted.
At the detention hearing, on April 6, 2010, the juvenile court found a prima facie case for detaining Jacob, a substantial danger exists to his physical and emotional health absent removal, there are no reasonable means to protect him without removal and reasonable efforts have been made to prevent or eliminate the need for his removal from the home. The court ordered monitored visitation for Mother, allowing discretion to release the child to Mother, and directed DCFS to interview Jacob’s father in state prison. The court approved Jacob’s and Alexis’s placement with a nonrelated friend of Mother, and ordered Jay released from foster care to his father.
2. The Jurisdictional Findings
According to the May 12, 2010 jurisdiction and disposition report, Mother and Jacob’s father currently were married, and, although Mother had filed for divorce, no court proceedings had been held. Mother continued to report that she was dating Francisco and that they had verbal altercations, with his becoming “easily upset” with her in the last six months. Approximately two months ago Francisco began physically abusing Mother, including an episode where Jay told her that Francisco had struck her in the head and she had lost consciousness. Francisco, however, told Mother that she had hit her head on the dashboard after he stopped the car abruptly, and she believed him, forgave him and allowed him to return home. Mother explained that “she realizes that the home environment she had provided for the children was not... safe because she allowed [Francisco] to reside in the home and be verbally and physically abusive toward[] her in the presence of the children. [Mother] stated that she has enrolled in domestic violence counseling and individual counseling to address the issues that led to her involvement with DCFS and Dependency Court.” Jay, although reluctant to talk about the domestic violence in his home, and not confirming that Francisco had abused him, said that Francisco is “‘a bad person. He hits my mom.’”
Mother and Francisco visited with Jacob and Alexis on April 10, 2010. Mother did not visit with Jacob after that time due to transportation problems, but a new visitation plan was arranged on May 1, 2010. Mother stated that she “is hopeful that she will be able to reunify with the children.” DCFS stated that it had been unable to interview Jacob’s father in state prison.
In the report, DCFS recommended that Jacob, Jay and Alexis not be returned to Mother’s home because Mother and Francisco had “engaged in domestic violence in the presence of the children. [Mother] minimizes the domestic violence incidents and the fear the child Jay had toward[] [Francisco]. Further [Mother] has recently beg[u]n to address [the] issues of domestic violence, parenting and individual counseling.” Jacob remained with Alexis in the home of the nonrelated friend of Mother.
In connection with the jurisdiction and disposition report, and before the pretrial resolution conference on May 12, 2010, DCFS filed an amended section 300 petition, amended further by interlineation. As further amended, DCFS alleged against Mother under section 300, subdivisions (a) and (b), that “[t]he children... were exposed to violent physical altercations between the children’s mother... and the mother’s male companion..., the father of the child Alexis..., including [Francisco] striking the mother’s face and head with [his] fists while driving a vehicle with the children as passengers, causing the mother to lose consciousness [for a few minutes] in the children’s presence.... Such domestic violence on the part of [Francisco] against the mother in the children’s presence... endangers the children’s physical and emotional health and safety, creates an unsafe home environment and places the children at risk of physical harm, damage, danger, physical abuse and failure to protect.” In addition, DCFS alleged under section 300, subdivision (b), that Mother’s three older children “were prior dependents of the Court due to the mother’s drug use and positive toxicology screens during the birth of [two of] the children.... Further, ... mother[’s]... parental rights for the [older] children... were terminated on 08/25/2003 as she failed to comply with prior Court orders regarding her substance abuse. Such conduct by... mother... endangers the children[’s]... physical and emotional health and safety and places the child/children at risk of harm and damage.” The amended petition contained the same allegations as had the original petition against Jacob’s father under section 300, subdivisions (b) and (g), regarding failure to provide for the child.
The amendments deleted references in the allegations to Mother’s failure to protect the children by allowing Francisco to reside in the home with the children and to have unlimited access to them and to Francisco’s purported abuse of Jay.
Also on May 12, 2010, Mother signed a waiver of rights, indicating that the petition had been read to her and she understood it and that she was pleading no contest. The May 12, 2010 minute order of the pretrial resolution conference reflected Mother’s submission of a signed waiver of rights and indicated that Mother “intelligently and voluntarily waive[s] [her] rights and understand[s] the possible consequences of [her] plea.” It also stated, “the court receives signed waiver of rights form from Mother..., —the court finds that the waiver[] from Mother... [is] knowingly, intelligently and voluntarily made.—All counsel join in the plea and waiver[] and stipulate to the court’s finding that there is a factual basis for said plea[].” It then indicates that Mother “[p]led no contest.” On these grounds, the court sustained the allegations against Mother under section 300, subdivisions (a) and (b). The court dismissed the allegations against Jacob’s father under section 300, subdivisions (b) and (g). The court continued the matter as to Jacob to May 24, 2010 for disposition because DCFS had yet to interview his father and directed DCFS to address with Jacob’s father the potential for placement with paternal relatives and report to the court.
Before discussing the no contest plea entered by Mother, the May 12, 2010 minute order stated that the first amended section 300 petition was filed “this date” and that “parents waive reading of the first amended petition and mother and [Francisco] each enter a denial.” Francisco also pleaded no contest to the allegations against him in the first amended petition, and the court found those allegations true.
3. The Disposition Orders
The interim review report prepared for the May 24, 2010 disposition hearing regarding Jacob indicated that DCFS had interviewed Jacob’s father in state prison on May 17, 2010. Jacob’s father indicated that Mother used to bring Jacob to visit him in prison and that he maintained a relationship with the child until Jacob was about 13 months old, when Mother stopped visiting. He has been in prison since 2003 for a robbery, and thus in prison for the entirety of Jacob’s life, the child being conceived during a conjugal visit. “[H]is family members have provided financial support to the mother when needed for the child’s care.” At Jacob’s father’s request, DCFS interviewed his stepmother as a possible person for placement of Jacob. Based on that interview, DCFS reported that “[t]he relatives the father identified as perspective caretakers for the child are not able to care for the child due to their medical issues and living situations.” DCFS thus recommended that Jacob remain placed with the nonrelated friend of Mother. It also recommended reunification services and monitored visits for Jacob’s father, who had an expected release date from prison in 2012. Regarding Mother, DCFS reported that she did not “understand how... Jay reported that [Francisco] was being physically and emotionally abusive towards him. Mother described [Francisco] as being argumentative with her however not towards the children. Despite this, mother stated [she] believed that things happen for a reason and she now realizes that being with [Francisco] is not an option as she prefers to have her children under her care.” Mother also reported concerns with Jacob’s current placement and said she wished DCFS to look into the maternal grandmother caring for him even if that meant Mother would need to move from maternal grandmother’s home, where she currently was living. Maternal grandmother reported her prior involvement with law enforcement and her 32-year history of heroin abuse and intervention to DCFS and said that she is now physically well and able to care for the children.
The hearing scheduled for May 24, 2010 was continued to June 30, 2010 because Jacob’s father was unable to be transported to court that day. The May 24, 2010 minute order directed DCFS to address Mother’s concerns regarding the current placement for Jacob and Alexis.
A further interim review report prepared for the June 30, 2010 hearing indicated that Jacob and Alexis had been removed from their placement and assigned to a new foster parent because the caretaker’s boyfriend had not provided documentation for a criminal waiver and, although he did not live in the home with the children, he had significant contact with them, requiring a criminal waiver.
At the hearing on June 30, 2010, the court further continued disposition to August 12, 2010 based again on the inability of Jacob’s father to be transported to court.
An additional interim review report prepared for the August 12, 2010 hearing stated that Mother had completed a parenting program, participated in two domestic violence education classes, enrolled in a program for victims of domestic violence, with two classes taken thus far, and was likely to be placed on a waiting list for individual counseling. Nevertheless, since the last hearing on June 30, 2010, Mother “has continued her relationship” with Francisco. “It is evident that the mother continues to have difficulty understanding that her violent relationship with [Francisco] is the primary reason of her current involvement with DCFS and Dependency Court. The mother is in need of intensive counseling to assist her in addressing the abuse that existed in her home. The mother needs to take responsibility for the abuse and neglect she exposed her children [to] to recognize the harm she caused. She did not protect her children from [Francisco]. As long as the mother continues to maintain a relationship with [Francisco], the children remain at a very high risk of on-going abuse and harm.” DCFS thus recommended that Jacob remain in foster care.
At the August 12, 2010 hearing, the court noted that Jacob’s father was a non-offending parent and that this hearing was his first court appearance. Jacob’s father requested a continuance of the hearing so he could have additional time to make an appropriate plan for his son, explaining that he previously had been unable to contact family members because of issues at his place of incarceration. The court continued the hearing to August 30, 2010.
In the interim review report prepared for the August 30, 2010 hearing, DCFS stated that it had had an in-person interview with Jacob’s father on August 23, 2010. On August 25, 2010, Jacob’s father called DCFS and provided the names of three family members who may be able to care for his son—a paternal uncle and two paternal aunts. DCFS interviewed the wife of the paternal uncle and one of the paternal aunts, but was unable to reach the other paternal aunt. DCFS reported that it was continuing to assess the family of the paternal uncle and the family of the paternal aunt as possible placements for Jacob and that both families had expressed interest in caring for him. DCFS continued to recommend that Jacob remain in foster care.
At the August 30, 2010 hearing, the court indicated that placement with the family of Jacob’s father’s paternal aunt appeared to be an appropriate plan and that placement with the family of Jacob’s father’s paternal uncle may be an appropriate plan after further investigation into prior the criminal history of the paternal uncle. The court announced a tentative decision to retain jurisdiction over the child and release custody, care and control of Jacob to his father to make appropriate arrangements for his son.
DCFS objected, arguing that Jacob should remain in foster care with Alexis and that he does not have any relationship with the paternal relatives. Counsel for Jacob submitted to release Jacob to his father for placement with the paternal aunt, asking that DCFS investigate whether Alexis could be placed in the family as well. Mother objected to the court’s tentative on the ground “that she would rather the children be together. She is arguing that this is somewhat of a sibling group. Her other concern is what [DCFS] stated, the lack of a relationship, which although it is correct didn’t exist when the child went to [his current foster home].” The court then questioned Mother’s counsel as to whether “[s]he would rather that the child be heading toward the possibility of adoption in the sense she does not do what she needs to do th[a]n to be with the father and the father be making arrangements with relatives until he gets out of custody....” Mother’s counsel represented that “it is true that that could be a detriment to her right now, the status quo, but this is her position.” Jacob’s father’s counsel submitted on the court’s tentative decision and indicated that he believed placement with the paternal uncle’s family also would be determined after investigation to be an appropriate plan for Jacob. After listening to the arguments, the court found clear and convincing evidence of a substantial danger to the child’s physical or mental health if he were returned to Mother’s care. The court declared Jacob a dependent child of the court and ordered Jacob removed from the care, custody and control of Mother and placed in the care, custody and control of his father, with a direction for his father to make an appropriate plan for his care. The court ordered continued reunification services for Mother, as well as family maintenance services for Jacob’s father, and visitation for Mother and sibling visits. The court scheduled a November 4, 2010 hearing under section 364 for Jacob.
Mother timely appealed. (§ 395, subd. (a)(1); see In re Tracy Z. (1987) 195 Cal.App.3d 107, 112 [jurisdictional findings reviewable on appeal from the judgment following disposition].)
DISCUSSION
1. No Basis Exists to Reverse the Jurisdictional Findings Against Mother
Mother contends the jurisdictional findings against her must be reversed, and a new jurisdictional hearing held, because the reporter’s notes from the hearing on May 12, 2010 at which the juvenile court made its jurisdictional findings are lost and the reporter was unable to provide a transcript of the hearing. On May 12, 2010, however, Mother pleaded no contest to the amended allegations in the section 300 petition against her and signed a waiver of rights form on which she initialed her agreement to a no contest plea. The minute order of the May 12, 2010 hearing reflected Mother’s no contest plea and detailed that there is a factual basis for the plea and waiver, that the plea and waiver were knowingly, intelligently and voluntarily made and that counsel joined in the plea and waiver and stipulated to the court’s finding that there is a factual basis for the plea. Given Mother’s no contest plea, she cannot challenge on appeal the jurisdictional findings against her, and the lack of a reporter’s transcript from the hearing on May 12, 2010 is not grounds for reversal of the findings. (In re Troy Z. (1992) 3 Cal.4th 1170, 1181 [“plea of ‘no contest’ to allegations under section 300 at a jurisdiction hearing admits all matters essential to the court’s jurisdiction over the minor” and a parent who pleads no contest to jurisdictional allegations gives his or her “knowing and voluntary acquiescence to the allegations of the petition, ” “waiv[ing] the[] right to challenge on appeal the legal applicability” of the jurisdictional provisions to his or her conduct].)
Mother points out that the May 12, 2010 minute order also, in recognizing the filing of the amended section 300 petition, stated that “parents [referring to Mother and Francisco] waive reading of the first amended petition and Mother and [Francisco] each enter a denial.” Mother initially may have entered a denial to the first amended petition, as it was further amended by interlineation to remove allegations regarding her failure to protect her children from the abuse of Francisco and his purported abuse of Jay. Even without a reporter’s transcript, however, the record is clear that Mother pleaded no contest and signed a waiver of rights, the court made the appropriate findings regarding the knowing, intelligent and voluntary nature of her decision to do so and her counsel joined in the plea and waivers and stipulated to the court’s findings. In addition, Mother does not suggest on appeal that she in fact did not enter a no contest plea, or that the jurisdictional findings against her are in some way unsupported. Under these circumstances, the reference to a “denial” in the May 12, 2010 minute order does not establish grounds for reversal of the jurisdictional findings against Mother based on the lack of a reporter’s transcript.
2. No Basis Exists to Reverse the Juvenile Court’s Disposition Order Removing the Child from Mother’s Care, Custody and Control
At the August 30, 2010 disposition hearing regarding Jacob, the juvenile court, noting one and possibly two appropriate placements for Jacob with paternal relatives, announced a tentative decision to retain jurisdiction over Jacob and place him in the care, custody and control of his father, with direction for his father to make an appropriate plan for Jacob’s care while he remained incarcerated. DCFS objected, requesting that Jacob remain in the foster care home where he had been placed for approximately two months. Mother objected, not requesting that the court leave Jacob in her care, but that Jacob remain in foster care, and not be placed with paternal relatives, because she wanted Jacob and Alexis together and Jacob did not know his paternal relatives. After questioning by the court, Mother through her counsel recognized that Jacob’s remaining in foster care could be a detriment to her, but she wished to retain the status quo rather than have Jacob placed with a paternal relative. Jacob’s counsel agreed with the court’s tentative decision, suggesting only that DCFS investigate whether Alexis could be placed with the same family as well. After hearing the arguments, the court adopted its tentative decision as the order.
Despite her position in the juvenile court requesting that Jacob remain in foster care and not be placed with paternal relatives, and her concession that such a position might be detrimental to her, Mother now argues on appeal that the juvenile court at disposition lacked grounds to remove Jacob from her care, custody and control. Not having made this argument before the juvenile court, or in any way suggested at disposition that there were insufficient grounds to remove Jacob from her care, custody and control, Mother is not entitled to rely on the argument on appeal as a basis for reversal of the judgment. (In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [mother forfeited right to raise issue regarding placement of child with maternal grandmother on appeal when she did not seek such placement in the juvenile court but instead sought only return of the child to herself]; see In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 [recognizing “courts have taken the position that if the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent”].)
On appeal, Mother does not complain about the juvenile court’s decision to place Jacob in the care, custody and control of his father, as opposed to maintaining Jacob’s placement in foster care, as she argued at disposition.
In any case, even considering Mother’s argument on the merits, it fails. As relevant here, section 361, subdivision (c)(1), provides 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” that “[t]here 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... physical custody.” “The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent’s past conduct as well as present circumstances. [Citation.]” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) We review the juvenile court’s decision on disposition “to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence. [Citation.]” (In re Mariah T. (2008) 159 Cal.App.4th 428, 441.)
The evidence is sufficient to support the juvenile court’s decision at disposition to remove Jacob from Mother’s care, custody and control. According to the evidence, Francisco physically abused Mother in the presence of her children over a period of time, so severely that on one occasion Mother lost consciousness. Jay, the only child able to communicate with DCFS, feared Francisco and said he was “mean” and “bad.” Mother at times minimized Francisco’s physical abuse of her. Despite the abuse, she continued her relationship with him. As reported on August 12, 2010, since the prior juvenile court hearing on June 30, 2010, Mother “has continued her relationship” with Francisco. “It is evident that the mother continues to have difficulty understanding that her violent relationship with [Francisco] is the primary reason of her current involvement with DCFS and Dependency Court.... As long as the mother continues to maintain a relationship with [Francisco], the children remain at a very high risk of on-going abuse and harm.” Although Mother was in a program for domestic violence victims, she had not participated in the individual counseling necessary to “assist her in addressing the abuse that existed in her home.” Based on this evidence, the purpose of section 361, subdivision (c)(1), of averting harm to the child was fulfilled by the juvenile court’s disposition order removing Jacob from the care, custody and control of Mother, and no grounds exist to reverse it.
Of course, if circumstances have changed since the August 30, 2010 disposition hearing, Mother may ask the juvenile court for a change in Jacob’s placement. (§ 388, subd. (a).) Mother states in the conclusion of both her opening and reply briefs that, at the very least, she is entitled to unmonitored, extended visitation. If Mother seeks a change in the current visitation plan, she should raise the issue in the first instance in the juvenile court.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., CHANEY, J.