Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. SJ12120A, Laura J. Birkmeyer, Judge.
HALLER, Acting P. J.
A.T. and Alfred T. seek review of juvenile court findings and orders terminating family reunification services and selecting another permanent planned living arrangement for their son, Justin T., under Welfare and Institutions Code section 366.22. We affirm the findings and orders.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Justin T., born December 1995, is the eldest son of A.T. and Alfred T. In January 2009 Justin and his six siblings were removed from parental custody due to the parents' use of wooden spoons, sandals, a belt and fist to discipline Justin, and the risk of physical abuse to their other children. Justin sustained bruises to his arms, shoulders and legs as a result of physical abuse. The two next oldest children, Taylor and Jordan, also reported their parents hit them.
A seventh sibling was born during the dependency proceedings.
The San Diego County Health and Human Services Agency (the Agency) stated the focus of the proceedings was for the parents to stop using excessive physical discipline and gain the skills to use alternative discipline techniques. The social worker reported that the parents were responsive, polite, open to services and anxious to begin parenting classes. The five oldest children were placed with their paternal grandmother. The two youngest children remained in the parents' home under the supervision of the maternal grandmother.
In February 2009 Justin's sister Taylor reported that Justin engaged in ongoing sexualized behaviors with her, including touching her bottom and chest, kissing her on the lips and rubbing his penis against her. He threatened her not to tell anyone. Justin acknowledged he kissed Taylor on the lips and was "dancing dirty" with her. Jordan said he saw Justin and Taylor laying down together playing "boyfriend and girlfriend."
By April 2009 all six of Justin's siblings were living with parents under a plan of family maintenance services. Justin was placed with his paternal grandmother. The social worker reported that the siblings were happy and stable in the parents' care, and the parents were dedicated to their children and to making positive changes. The Agency stated before it would recommend Justin's return home, he needed to complete an intensive day treatment program for male adolescents with trauma reactive disorders (STEPS). (See [as of May 23, 2011].)
In January 2010, at the time of the 12-month review hearing, the Agency recommended Justin's continued placement with his paternal grandmother with continued efforts toward family reunification. Justin was on step two of the five-step treatment program. In January A.T. contacted the social worker and reported that Justin had engaged in inappropriate sexual behavior during an overnight visit with his three brothers at their paternal grandmother's home. Justin kissed Jordan's bottom and made Jordan and his brother Noah "suck his private." Justin told the social worker he and Jordan were "kissing and humping and stuff."
The social worker stated the parents were very protective of the children and acted appropriately by reporting the incident to the Agency and encouraging the children to speak truthfully.
In March Justin was expelled from school for assaulting staff security personnel. He remained on step two of his treatment program. Justin missed his family and wanted to return home. He visited his family on weekends and holidays. His parents did not leave him alone with his siblings.
In its initial report prepared for the 18-month review hearing, the Agency recommended the juvenile court terminate reunification services and select a permanent plan for Justin in his paternal grandmother's care. The Agency also recommended that the juvenile court terminate its jurisdiction in the siblings' open cases. However, after discovering that Alfred had spanked Noah with a sandal for climbing out of his bedroom window and throwing rocks at a neighbor's home, the Agency changed its recommendation to continue jurisdiction in the siblings' cases. During the investigation into Noah's spanking, the parents resisted the Agency's admonitions about corporal punishment. A.T. told the social worker that spanking was not illegal. She refused to sign a safety plan agreeing to refrain from corporal punishment without speaking to Alfred.
The court terminated its jurisdiction in the cases of the two youngest siblings in May 2010.
The parents refused to sign the safety plan and returned it to the social worker with a note stating the Agency had no right to tell them how to discipline their children.
At the contested 18-month review hearing on November 15, 2010, the parents agreed to abide by the terms of the safety plan. The parties agreed the juvenile court would terminate its jurisdiction in the siblings' open cases in December 2010. Alfred and A.T. submitted on the Agency's recommendations for Justin's permanent placement plan. The juvenile court terminated reunification services and selected another permanent planned living arrangement (APPLA) for Justin in the care of his paternal grandmother. Fourteen-year-old Justin was not present at the hearing.
DISCUSSION
The parents contend the juvenile court erred when it terminated reunification services and selected APPLA for Justin instead of returning him to their care. They argue there is not substantial evidence to support the finding that Justin could not safely be returned home. The parents also contend the juvenile court committed reversible error when it did not inquire about the reason for Justin's absence at the contested 18-month review hearing and found that he received proper notice of that hearing.
Alfred joins in and adopts A.T.'s brief. He did not file a separate brief.
The Agency responds, and we agree, that the parents have forfeited their right to claim as error the order selecting APPLA as Justin's permanent plan. Even were the issue not forfeited on appeal, we would conclude that there is substantial evidence to support the court's findings and orders. Further, the parents lack standing to assert there was not proper notice to Justin. Error, if any, is harmless.
I
A
Forfeiture
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as 'waiver, ' applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. [Citations.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A party may not assert theories on appeal which were not raised in the trial court. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.)
Here, not only did the parents fail to object to the recommended findings and orders for Justin's permanent plan, they submitted on the Agency's recommendations. "Ordinarily, submitting 'on a social worker's recommendation dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders. Consequently, a parent who submits on a recommendation waives his or her right to contest the juvenile court's decision if it coincides with the social worker's recommendation.' [Citations.]" (In re N.S. (2002) 97 Cal.App.4th 167, 170.) Thus, in endorsing the juvenile court's selection of APPLA as Justin's permanent plan, A.T. and Alfred have forfeited the right to assign error on appeal.
B
There Is Substantial Evidence to Support the Detriment Finding
Even if the doctrine of forfeiture did not apply, we would reject the parents' claim the court's findings and orders are not supported by substantial evidence. At the 18-month review hearing, the juvenile court is required to order the return of the child to the physical custody of his or her parent unless it finds, by a preponderance of the evidence, that the return of the child to his or her parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child (detriment finding). The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental. (§ 366.22, subd. (a).)
We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or determine where the preponderance of the evidence lies. We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) The burden is on the petitioner to show the evidence is insufficient to support the trial court's findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
The record supports the parents' contention they participated in services to mitigate the problem that led to Justin's removal from their care. Despite a parent's progress in resolving the risks that led to the dependency, the underlying question posed at the 18-month review hearing is whether substantial evidence supports the juvenile court's finding the child's return to parental custody would create a substantial risk of detriment to the child's safety, protection, or physical or emotional well-being. (§ 366.22; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345.)
The record contains substantial evidence to show that Justin required a stable, structured home in which he could focus on completing his therapeutic program. "In some cases, the limit of a parent's capabilities to meet a child's special needs may be reached and the child, through no lack of effort on the parent's part, requires a more structured environment or greater intervention than can be provided in the home." (In re Javier G. (2006) 137 Cal.App.4th 453, 459-460 [discussing removal of the child from the home on a supplemental petition].) Alfred and A.T., despite their significant participation in services, were not able to provide appropriate structure and supervision to meet Justin's needs for rehabilitation and protect their other children from his inappropriate sexual behaviors. (Id. at p. 460.) The juvenile court could reasonably conclude that returning Justin to the physical custody of his parents would destabilize the family and impede Justin's therapeutic progress, to his emotional detriment.
Further, Alfred and A.T. only reluctantly acknowledged that hitting a child was inappropriate and continued to assert that "spanking" was an appropriate disciplinary means. Approximately six weeks before the hearing they wrote, "We are declining to sign this safety plan. We do not feel this is a safety plan. You are specifically telling us as parents not to spank our children.... We do not use inanimate objects to spank them. Just because we believe in the right to spank our children does not mean we did anything wrong, and we are not breaking any laws, which we feel that you are implying." Two months before the review hearing, Alfred used a sandal to "spank" a seven-year-old son after completing parenting classes and other services. Resolving all conflicts in the evidence and reasonable inferences from the evidence in favor of the prevailing party (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393), and in view of the parents' history of physically abusing Justin, we conclude there is substantial evidence of a substantial risk of detriment to Justin's safety, protection, or physical or emotional well-being in the home.
II
A
The Parents Lack Standing To Raise the Issue of Justin's Right to Appear on Appeal
Alfred and A.T. contend the juvenile court erred when it failed to inquire into Justin's absence at the 18-month review hearing and found that he was properly notified of the hearing.
A child who is the subject of a juvenile court hearing is entitled to be present at the hearing. (§ 349, subd. (a).) The social worker is required to give notice of the 18-month review hearing to the child, if the child is 10 years of age or older. (§ 293, subd. (a).) Notice must be served "not earlier than 30 days, nor later than 15 days, before the hearing." (§ 293, subd. (c).)
If the child is 10 years of age or older and is not present at the hearing, the court is required to determine whether the child was properly notified of his or her right to attend the hearing. If the child was not properly notified or if the child wished to be present and was not given that opportunity, the court must continue the hearing unless it finds that it is in the best interest of the child not to continue the hearing. The court shall continue the hearing only for that period of time necessary to provide notice and secure the presence of the child. (§ 349, subd. (d).)
This court recently concluded that a parent does not have standing to raise the notice and inquiry issues to his or her child on appeal. (In re Desiree M. (2010) 181 Cal.App.4th 329 (Desiree M.).) Desiree M. controls our analysis here.
In general, an appellant may contest only those orders that injuriously affect him or her. The appellant cannot raise errors that affect only another party who does not appeal. (Desiree M., supra, 181 Cal.App.4th at p. 333.) To confer standing, an injury from a court's ruling must have an immediate and substantial effect on the appellant rather than a nominal or remote consequence. (Desiree M., supra, at p. 333.) Whether Justin received notice of the continued 18-month hearing and wanted to be present at the hearing are matters that affect his rights, not his parents' rights. (Id. at p. 334.) Justin's right to be present at the hearing is a statutory right that belongs to him, not to his parents. (Ibid.) We therefore conclude that the parents do not have standing to raise this issue on appeal.
Further, the parents did not raise the issue of proper notice and inquiry to Justin at the 18-month review hearing. If they had brought this matter to the attention of the juvenile court, the juvenile court could have remedied any error. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) This issue has been forfeited on appeal. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.)
B
Any Error Is Harmless
The record shows that Justin received proper notice of the 18-month review hearing initially set for August 4, 2010. The hearing was continued several times for various reasons. There is no indication in the record to show that Justin was noticed of the continued hearing dates, or of the contested hearing on November 15, 2010, or to show that he was advised of his right to be present at the hearing and declined the opportunity to appear.
The juvenile court should have inquired into Justin's absence when he did not appear at the 18-month review hearing and determined whether he received proper notice of the hearing. (§§ 293, 349.) Counsel for all the parties, including minor's counsel, should have brought this omission to the juvenile court's attention. Nevertheless, the parents do not show they were prejudiced by Justin's absence from the hearing. (Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, 819 [the burden rests on the complaining party to affirmatively show injury from error].)
Alfred and A.T. submitted on the Agency's recommendations. They cannot show prejudice from the juvenile court's selection of APPLA as Justin's permanent plan. Further, the social worker's reports, which were admitted in evidence, consistently set forth Justin's wishes to return home to his parents and siblings. Despite Justin's wishes, the issue at the 18-month hearing is whether there was a substantial risk of detriment to Justin if he were returned to his parents' care. (§ 366.22, subd. (a).) As we discussed in Part I, B, ante, the juvenile court could reasonably find that, despite Justin's desire to return home, there would be substantial detriment to Justin's physical and emotional well-being if returned home at that time. Consistent with the obligation of minor's counsel not to advocate for the child's return home if counsel believes that returning home conflicts with the child's safety and protection, Justin did not contest the selection of APPLA at the hearing. (§ 317, subd. (e).) Thus, the parents do not show that the outcome of the hearing would have been more favorable to them if Justin had been present at the hearing or if he had affirmatively waived his right to be present. (People v. Watson (1956) 46 Cal.2d 818, 836.) Reversal is not required. (Cal. Const., art. VI, § 13.)
DISPOSITION
The petition is denied.
WE CONCUR: McINTYRE, J.O'ROURKE, J.