Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J05-01583
Margulies, J.
Jodie V. was detained immediately after her birth by the Contra Costa County Children and Family Services Bureau (agency) when her mother (Mother) tested positive for both marijuana and amphetamine. Although the court sustained the agency’s dependency petition under Welfare and Institutions Code section 300, it permitted Jodie’s father, Lawrence V. (Father), to retain custody of the baby. The court expressly conditioned the grant of custody on Father’s keeping Jodie away from Mother, who continued to abuse methamphetamine. A little more than a month later, after Mother caused a violent confrontation with Father in Jodie’s presence, the agency detained Jodie again and placed her in foster care. The juvenile court sustained the agency’s supplemental petition to remove Jodie from Father’s custody. We affirm.
All statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
On November 15, 2005, the agency filed a petition under section 300, subdivision (b), stating that Jodie had been detained six days after her birth because Mother tested positive for amphetamine and marijuana use. The petition also alleged that Father had a serious substance abuse problem that interfered with his ability to care for Jodie.
The jurisdictional report stated that both parents had a history of methamphetamine abuse, Father’s stretching back to the mid-1990’s. Two other children of Mother, by a different father, had been removed from her care in 2002, and Mother’s parental rights in those children were ultimately terminated. An addendum to the report spelled out Father’s 10-year drug-related criminal history, including four past convictions and pending charges for drug possession from an arrest prior to Jodie’s birth.
At the jurisdictional hearing, held five months after Jodie’s birth, Father acknowledged his long-term use of illegal drugs, interspersed with periods of sobriety. Explaining the pending criminal charges, Father testified that he had been stopped for a traffic violation, given a field sobriety test, and taken into custody. He admitted the police found $3,000 in a search, but he denied having illegal drugs or drug paraphernalia in the car at the time. Father also testified that Mother had not been living in his home for approximately two months prior to the hearing. At the conclusion, the juvenile court sustained the petition against both parents, concluding that Father posed a substantial risk to Jodie because of a significant risk both of relapse into drug use and of incarceration as a result of the pending charges.
A later dispositional report noted that, according to the arrest report, Father’s car contained baggies with a white crystalline substance and a used smoking pipe when he was stopped.
The dispositional report expressed continued skepticism about Father’s ability to care for Jodie because of his history of drug abuse, but it noted that Father displayed evident love for the baby, had been diligent in completing the services offered, and had tested negative for drugs since the time of Jodie’s birth. He had not missed even one of his weekly unsupervised visits with her. The report recommended extending reunification services to Father but denying them to Mother, who was failing utterly in her struggle to overcome methamphetamine addiction.
At the dispositional hearing on May 1, 2006, the parties agreed to a continuance to allow Father an opportunity to keep Jodie in his home for 30 days. The primary condition of the agreement, articulated by the court, was that “[M]other is not to be anywhere near that home—may not live in it, stay in it, come by [to] pick up a friend there, drop by to pick up laundry or drop it off—for no reason can [M]other come by the home. There will be an absolute stay-away order for [M]other.” The court directly cautioned Father, “You’re not to be having the baby with the mother. [¶] I understand you drive her to and from—to help her, and that’s very nice, but no more for 30 days.” Father acknowledged his assent to the court’s direction.
The 30-day trial run was completed to the agency’s satisfaction, although the agency had received a report from a family member that Father had visited a convenience store with Mother and Jodie, at which time he introduced Mother as his girlfriend. Despite this apparent violation of the court’s order, the agency recommended extending family maintenance services to Father.
At the continued dispositional hearing, Father’s counsel disputed the report that he was spending time with Mother, relating Father’s claim that a cousin, not Mother, had been with him at the store and that he had not introduced anyone as his girlfriend. County counsel expressed concern that Father and Mother continued to have a relationship because Mother had told the agency that the only way to contact her was through Father. At the conclusion of the hearing, the juvenile court denied services to Mother and granted maintenance services to Father, but the court again warned Father against allowing Mother contact with the baby: “I want to be very clear about this. [Mother] is not to have any contact with the child except in a supervised setting at the Department of Social Services. . . . [¶] . . . [¶] I don’t want accidental meetings.” Father again acknowledged the court’s instruction.
Less than two weeks after this hearing, on June 12, 2006, the agency detained Jodie again. The agency filed a supplemental petition pursuant to section 387, explaining that Father was arrested for child endangerment after driving a vehicle “with the child in the backseat while [M]other was on the hood of the car, smashing windows. Glass was found in the carseat with the child.” The supplemental petition alleged that “Father has failed to protect the child from [M]other’s substance abuse, in that he was aware that [M]other was testing positive for methamphetamine and . . . allowed [Mother] to have access to the home.”
According to the agency’s initial report, on June 12 the arresting officer saw Father driving his car with Mother hanging onto the hood while pounding on the front windshield. Jodie was secured in a car seat in the back seat. Glass from the windshield had cut Father and Mother, and shards were strewn throughout the interior of the vehicle. A woman who had been living in Father’s home and providing child care for Jodie told the officer that Mother did not live with Father but would appear unannounced at the home and demand to see Jodie. She also told the officer that Father had been staying away from the home for the last few days in an effort to avoid Mother. The woman said she would sometimes find Mother’s car parked in the driveway, at which times Mother would stay in the home’s garage. On the day of the incident, Father came by to pick up Jodie and take her to a scheduled appointment. When Father returned, Mother ran out of the garage and jumped onto the hood of the car as Father drove away. Father explained to the officer that he continued to drive with Mother on the hood to prevent her from smashing the side windows and gaining entry to the car. When the officer returned with Mother to the Father’s home, the officer saw drug paraphernalia in the garage, as well as a playpen, bottle, and baby formula. Mother told two agency workers who interviewed her the day after the incident that she had been living with Father in the garage since he had regained custody of Jodie, with unsupervised access to the child, and that Father had left the child with her for four days recently while Father was away from home.
At the adjudicatory hearing on the supplemental petition, the social worker assigned to Jodie testified that she had told Father on June 5 that Mother continued to test positive for methamphetamine and amphetamine. Later that day, she received a distressed call from Mother, who asked why the social worker had told Father about the positive drug tests. After the windshield-smashing incident a week later, the social worker again spoke with both parents, who told her radically different stories. Mother claimed that she lived with Father, kept her belongings at his house, was in frequent telephone contact with him, and was engaged to marry him, even displaying an engagement ring. Father claimed to have had no contact with Mother.
As Father points out, the initial hearing on a supplemental hearing is not properly referred to as a “jurisdictional” hearing, since the court has already determined its jurisdiction. Nonetheless, the court’s section 387 procedures follow the same two-step process for original petitions under section 300, in which a factfinding hearing is followed by a hearing at which an appropriate disposition is determined. (See In re Javier G. (2006) 137 Cal.App.4th 453, 460–461.)
Father testified at the hearing that he had invited a friend and her daughter to live in his home and care for Jodie—the same woman who spoke with the police officer on the day of the incident. Because his house has only one bedroom, Father moved into the garage. He acknowledged that he had permitted Mother to use his home to store her belongings and change clothes. He had hoped to reunite with her if she was successful in overcoming her addiction. The day he found out that Mother continued to test positive, he called Mother and ended further contact after learning about the tests, but Mother began to “badger” him with telephone calls. The next day Father feared he was having a heart attack and spent the day in the hospital. Father had spent the two days and nights prior to the windshield-smashing incident away from the house to avoid the stress she was causing. Even after the incident, Mother had continued to attempt to contact him, but he was in the process of moving of all her things from his home.
Following Father’s testimony, the juvenile court made the necessary findings to sustain the supplemental petition, commenting that Father was not a wholly credible witness and concluding that he had endangered Jodie by permitting Mother access to his home.
At a dispositional hearing, on July 17, 2006, the parties assembled for the court’s ruling. When asked for her “thoughts,” Father’s counsel responded, “We are submitting on the recommendation to go to reunification services with the request that I believe the [agency] has agreed to—that we can return in 90 days for a status review. [¶] [Father] . . . would prefer to have his daughter placed with him, but he’s prepared at this time to submit on the recommendation, . . . to go to reunification services.” The court thereafter confirmed, “All parties agree, with objections and observations and arguments duly noted, . . . to the recommendations contained within the 7/17/06 report . . . ?” Upon an affirmative response from all counsel, the court ordered into effect the recommendations, including reunification services for Father. No formal findings were made.
II. DISCUSSION
Father argues that the juvenile court’s decision to sustain the supplemental petition and offer reunification services at the July 17 hearing was not supported by substantial evidence. The agency argues that Father waived his claim when his counsel stipulated to the disposition recommended by the agency.
This matter consists of two consolidated appeals, No. A114302, which seeks review of the juvenile court’s orders of April 6 and May 30, 2006, and No. A115029, which seeks review of the July 17, 2006 order. The only order actually challenged by Father in his opening brief, however, is the July 17 order. We therefore deem appeal No. A114302 to have been abandoned and dismiss it. (E.g., Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 131, fn. 5 [party deemed to have abandoned appeal when no brief filed].)
A. Waiver
Ruling on the issue of waiver requires a brief examination of the statutory scheme. In order to sustain a supplemental petition under section 387, which seeks “[a]n order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home” (§ 387, subd. (a)), the juvenile court must find that “the previous disposition has not been effective in the rehabilitation or protection of the child.” (§ 387, subd. (b); In re Joel H. (1993) 19 Cal.App.4th 1185, 1200.) Once that finding has been made, the court must select a disposition at a subsequent hearing. (In re Javier G., supra, 137 Cal.App.4th at p. 462.) If this disposition requires removal of the child “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” (§ 361, subd. (c)), the court must find, by 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 or guardian’s physical custody.” (§ 361, subd. (c)(1).) This finding is to be made at the dispositional hearing, rather than at the earlier adjudicatory hearing. (In re Javier G., at p. 462.)
In order to sustain the supplemental petition and, later, offer reunification services to Father, the juvenile court was required to make both findings mentioned above. Father contested the adjudicatory hearing, offering his own testimony as well as extended argument by his counsel that his conduct did not endanger his daughter. At the end of that hearing, the juvenile court made the finding necessary to sustain the petition, that the prior disposition had been inadequate to protect Jodie. Without objection, the court then scheduled a dispositional hearing. It was at the subsequent hearing that Father’s counsel consented to the disposition recommended by the agency, telling the court Father was “submitting on the recommendation to go to reunification services.” Upon receiving the consent of all counsel, the court proceeded to enter the disposition requested by the agency without making any further findings.
The extent of any waiver must be determined by the degree to which Father contested or assented to the findings of the court. (See, e.g., In re Kevin S. (1996) 41 Cal.App.4th 882, 886 [finding a waiver where the parent offered no defense at all during the proceedings, offering no evidence and making no argument against the disposition recommended by the agency].) Father vigorously contested the adjudicatory hearing regarding the agency’s supplemental petition. Accordingly, there is no basis for concluding that he waived his right to challenge the finding that placing the child in his custody was ineffective in protecting her, which was necessary to sustain the supplemental petition. At the dispositional hearing, the court would have been required to find that continued placement with Father presented “a substantial danger” to Jodie in order to enter the agency’s recommended disposition. Father’s counsel, however, consented to the recommendation, making it unnecessary for the court to make any factual findings. Because Father did not challenge the disposition recommended by the agency, Father has waived any challenge to the findings that would have been necessary to support that disposition.
Father argues that he should be permitted to challenge the finding because his consent was made “reluctantly,” his counsel noting at the time that he “would prefer to have his daughter placed with him.” Whether reluctantly or not, however, Father consented to the disposition. As a direct result of this consent, the court did not need to, and did not, make the required findings. Father cannot now claim that the evidence was insufficient to support a disposition to which he agreed.
Accordingly, while Father may challenge the court’s finding that his custody failed to protect the child, he may not challenge the sufficiency of the evidence to support a finding that his custody presented a substantial danger to her.
B. Substantial Evidence
As noted above, in order to sustain a supplemental petition under section 387, the juvenile court must find that “the previous disposition has not been effective in the rehabilitation or protection of the child.” (§ 387, subd. (b); In re Joel H., supra, 19 Cal.App.4th at p. 1200.) In reviewing such a finding, we apply the substantial evidence test, “view[ing] the record in the light most favorable to the order and decid[ing] if the evidence is reasonable, credible and of solid value.” (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.)
Father contends that there was no substantial evidence to support the juvenile court’s findings because, in essence, “[t]he allegations of the supplemental petition all stemmed from mother’s conduct, and none had to do with any aspect of [Father’s] care for the child.” This argument fails on its face because protecting Jodie from Mother was a primary aspect of Father’s “care for the child.” As was recognized by all involved, Mother posed a serious threat to Jodie’s well-being as a result of her abuse of methamphetamine. Regardless of Mother’s love for her daughter, this combination created a distinct risk of erratic behavior dangerous to a helpless infant—as Mother subsequently demonstrated. At two separate hearings, the court made it clear to Father that one of his primary tasks as Jodie’s caretaker, in addition to providing food and shelter, was to keep her away from Mother. In light of these strong and repeated warnings, Father cannot treat Mother’s conduct as outside his responsibilities in caring for Jodie.
Substantial evidence supported a finding that Father did, in fact, fail at this primary task. Discounting Mother’s unsupported claims to have been staying with and caring for her daughter, it is nonetheless clear, based on the statements of Father and the caregiver, that Father gave Mother free access to the garage of his home, where Mother was allowed to keep her belongings and to come and go freely. By permitting Mother free access to his home, Father virtually guaranteed that Mother would come into contact with Jodie. Further, just prior to the windshield-smashing incident, Mother’s conduct had become so burdensome to Father that he left Jodie alone with the caregiver in his home for two days. At the time, Father was well aware that (1) Mother was using methamphetamine habitually; (2) Mother was frantic at his decision to sever the relationship with her; (3) Mother had free access to the garage; and (4) Mother had reason to come to the garage, since she kept her things there with his permission. Father’s departure under these circumstances suggested that Father was either cavalier with regard to his duty to protect Jodie from Mother or simply failed to recognize that Mother posed a threat. Either way, this conduct demonstrated that he could not be relied upon to keep Jodie apart from her Mother, thereby exposing Jodie to the risks created by Mother’s unpredictable conduct. The foregoing provided substantial evidence to support the court’s finding that “the previous disposition has not been effective in the rehabilitation or protection of the child.”
Father minimizes the evidence suggesting that he had an ongoing relationship with Mother and argues that, in any event, merely maintaining a relationship with Mother did not necessarily bring her into contact with Jodie. Events demonstrated the fallacy of this reasoning. Even if Father intended to keep Mother away from Jodie, the windshield-smashing incident proved convincingly that by maintaining a continuing relationship with Mother and allowing her access to and a reason to visit his home, he effectively invited contact between Jodie and Mother. Under the circumstances, the incident was an entirely foreseeable result of Father’s failure to keep Mother away from Jodie, as he was instructed to do by the court.
III. DISPOSITION
The ruling of the trial court is affirmed.
We concur: Marchiano, P.J., Stein, J.