Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225180
SIMS, J.The juvenile court entered an order declaring J.B. (the minor) a dependent child but allowing him to remain at home in the custody and care of Jessica C. (the mother). (Welf. & Inst. Code, §§ 300, subds. (b) & (j), 358, 360; undesignated section references are to the Welfare and Institutions Code.) Appellant Robert B., the minor’s father who has been incarcerated since before the minor was born, appeals the portion of the court’s order denying him reunification services. We shall affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2006, appellant was incarcerated for a 32-month prison sentence. The minor was born later that year.
On December 6, 2006, the Department of Health and Human Services (DHHS) filed a juvenile dependency petition pursuant to section 300 alleging current failure to provide for and protect the minor due to the mother’s substance abuse, and prior neglect of the minor’s sibling and half-siblings due to past neglect and substance abuse by both the mother and appellant (§ 300, subds. (b) & (j)).
At the combined jurisdictional/dispositional hearing on February 22, 2007, the parties stipulated to a finding of appellant’s presumed father status. DHHS initially recommended that services be offered to appellant, but noted (1) he would be incarcerated until 2008, (2) he is “a non-custodial parent and is not requesting services” and (3) the petition is “non-detaining.” The court opined that section 361.2 “could be” applicable under those circumstances, and counsel agreed. DHHS ultimately revised its opinion, recommending that the minor “remain with the mother and that no services be offered to the biological father [appellant].”
Section 361.2 provides, in pertinent part: “(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.”
The findings proposed by DHHS in its January 25, 2007, jurisdiction/disposition report contain a handwritten notation that “services need not be offered [to appellant] under 361.2 WIC.” However, the February 22, 2007, addendum report recommends that appellant “should not be offered reunification services pursuant to [section] 361.5(e) as [appellant] is presently incarcerated and will remain so until 2008” and notes that, “[g]iven the age of the child and the fact that [appellant] will be incarcerated beyond the six-month reunification period, it is the assessment of [DHHS] that it is not in the child’s best interest for [appellant] to be offered reunification services.”
Appellant’s counsel informed the court that appellant “does want services,” but questioned whether section 361.2 was applicable given that the case “is [for] family maintenance and not reunification services.” Counsel detailed the services appellant was then participating in at the correctional facility (e.g., attending parenting and anger management classes and narcotics anonymous, and making efforts to get into a substance abuse program), and stated, “If the Department is willing to offer family maintenance services, I would ask that based upon what he has informed me that they provide the same family maintenance services to him, but he is not requesting reunification services.” (Emphasis added.)
The court sustained the allegations in the petition and declared the minor a dependent child, but determined it was appropriate for the minor to remain with his mother in the home. Agreeing with the parties that the mother would be in the best position to decide whether contact between appellant and the minor was appropriate, the court struck the language in the order prohibiting appellant’s contact with the minor. However, the court denied reunification services to appellant, finding him to be a “non-custodial parent [who is] not seeking custody.” The court added that, “[w]hile this case is not in the reunification mode because the child is placed with the mother, the Court is of the opinion that the [appellant’s] incarcerated status is akin to being non-custodial in that the child was not removed from his care but that of the mother.”
The court’s minute order states that “[n]o reunification services shall be offered to the father based upon findings pursuant to Section 361.5(e);” however, the findings the court expressly incorporated by reference into its order in that regard state only that “[appellant] is the father and he is a non-custodial parent who is not seeking custody,” with no reference to either section 361.2 or section 361.5, subdivision (e).
Section 361.5, subdivision (e), provides, in pertinent part: “(1) If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child’s attitude toward the implementation of family reunification services, and any other appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a). Services may include, but shall not be limited to, all of the following:
Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the juvenile court erred when it denied him reunification services because it misinterpreted the application of sections 361.2 and 361.5, subdivision (e), and failed to make a finding of detriment under section 361.5, subdivision (e). We disagree.
We review a juvenile court’s denial of reunification services for substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Defendant’s counsel specifically requested “family maintenance services,” not reunification services. He argues this is a “distinction without a difference” because “both are child welfare services.” While it is true family maintenance services and family reunification services both fall under the general umbrella of “child welfare services” (§ 16501, subd. (a)), each is a distinct category requiring provision of services in different circumstances. For instance, section 16501, subdivision (g), defines family maintenance services as “activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation, for the purposes of preventing separation of children from their families.” (Emphasis added.) Section 16501, subdivision (h), on the other hand, defines family reunification services as “activities designed to provide time-limited foster care services to prevent or remedy neglect, abuse, or exploitation, when the child cannot safely remain at home, and needs temporary foster care, while services are provided to reunite the family.” The former contemplates services to the minor and the custodial parent/guardian when the dependent child remains in the home, while the latter contemplates services designed to reunite the family after the minor has been removed from the home.
“The distinction between the services provided when the minors remain in parental custody and when the minors have been removed from parental custody is a subtle but important one. Services designed merely to support a family’s functioning may or may not be the same as those designed to reunify a family even if the ultimate goal in each case is to ameliorate the problems which led to the dependency at the outset.” (In re Joel T. (1999) 70 Cal.App.4th 263, 268.) Appellant requested family maintenance services. Because he did not request reunification services, and indeed expressly rejected them, he has forfeited his claim on appeal. “‘“No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [holding that correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)
In any event, even assuming appellant had requested reunification services, he was not statutorily entitled to them under either section 361.2 or 361.5, subdivision (e). Section 361.2 “deals specifically with the removal of a child from a custodial parent when there also exists a noncustodial parent.” (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 627 (Robert L.); § 361.2, subd. (a).) Because appellant was incarcerated and the minor was not residing with him at the “time events or conditions arose that brought the child within the provisions of Section 300,” he qualifies as a “non-custodial” parent. (In re Catherine H. (2002) 102 Cal.App.4th 1284, 1289 [“noncustodial” often used as shorthand term for “a parent of the child, with whom the child was not residing”]; In re Isayah C. (2004) 118 Cal.App.4th 684 [shorthand phrase “noncustodial parent” describes “a parent with whom the child was not residing at the time events or conditions arose that brought the child within the provisions of Section 300”].) However, the provisions of section 361.2 are not triggered unless (1) the “court orders removal of [the] child,” and (2) the noncustodial parent “desires to assume custody of the child.” (§ 361.2, subd. (a).) Since the court never ordered removal of the minor, and defendant never expressed a desire to assume custody (nor could he have given his incarceration), neither of those conditions is present here.
Section 361.5, subdivision (e), pertaining to provision of services to an incarcerated parent/guardian, is similarly inapplicable. “Section 361.5 requires the provision of services to parents ‘for the purpose of facilitating reunification of the family . . . .’ The provision of services to a noncustodial parent who does not seek custody of the [minor] does not in any way serve this purpose. . . . [T]herefore such services are not required to be offered or provided.” (Robert L., supra, 45 Cal.App.4th at p. 628.) Again, appellant was indeed incarcerated at the time the petition was filed; however, the minor was never removed from the home and appellant is not seeking custody, nor could he do so until his release in 2008, well beyond the statutory 12-month period. Consequently, appellant is not entitled to reunification services under section 361.5, subdivision (e), with or without a finding of detriment.
In a footnote, appellant also references section 362, subdivision (b), in support of his argument that he is entitled to reunification services. That section provides: “When a child is adjudged a dependent child of the court . . . and the court orders that a parent or guardian shall retain custody of the child subject to the supervision of the social worker, the parents or guardians shall be required to participate in child welfare services or services provided by an appropriate agency designated by the court.” We understand that to mean the parent or guardian retaining custody--here, the minor’s mother--is the individual “required to participate in child welfare services.” (See In re Jody R. (1990) 218 Cal.App.3d 1615, 1623.) Section 362, subdivision (b), does not apply to appellant under these circumstances.
Appellant was not entitled to reunification services because the court’s order did not remove the minor from the home, nor was appellant, a noncustodial parent, seeking custody or placement of the minor. The juvenile court did not err in denying reunification services to appellant.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: BLEASE, Acting P.J., NICHOLSON, J.
“(A) Maintaining contact between the parent and child through collect telephone calls.
“(B) Transportation services, where appropriate.
“(C) Visitation services, where appropriate.
“(D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.
“An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available.”