Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 07CEJ300094, Jane A. Cardoza, Judge.
Marin Williamson, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, Fresno County Counsel, William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Dawson, J., and Kane, J.
Procedural and Factual Summaries
Appellant A. D., the father of N. D. and E. D., appeals from the juvenile court’s order terminating his reunification services at a six-month dependency status review hearing. In April 2007, the children were removed from the custody of the mother, L. V., by respondent Fresno County Department of Children and Family Services (department), after a law-enforcement-initiated vehicle stop. The vehicle contained methamphetamine (in the mother’s purse), and N. D. was not restrained in a car seat. The father was incarcerated at the time of the children’s removal and had been for some time. The amended petition alleged that the children fell under the jurisdiction of the juvenile court because both parents have substance abuse problems that negatively affect their ability to provide regular care, supervision, and protection of the children and because both parents have unstable lifestyles that pose substantial risk of harm to the children.
At the jurisdictional hearing, the court found the allegations of the petition true and ruled that the children were dependent children within the definition of Welfare and Institutions Code section 300, et. seq. At the dispositional hearing, the court ordered the children removed from the mother’s custody and ordered reunification services for both parents. The court set the date of August 31, 2007, for post-disposition mediation to be staffed by the department. All parties were ordered to attend. The father was released from custody on August 22 or 23. There was no appeal from this order.
All references are to the Welfare and Institutions Code unless otherwise noted.
At the six-month review hearing on December 7, 2007, the court ordered continued services for the mother, but terminated services for the father. The court found clear and convincing evidence that the father had been offered reasonable services designed to assist the father in overcoming the problems leading to removal. The court found that the department had complied with the case plan and made reasonable efforts to return the children to a safe home. It also found that the father had made no progress in alleviating or mitigating the causes necessitating placement in foster care. It is from this order the father appeals.
Discussion
I. Custodial status
The father contends that the trial court erred when it failed to identify whether he was a custodial parent or a noncustodial parent at the dispositional hearing and that, as a result, the lawfulness of the initial order for services and the order terminating the services cannot be determined. According to the father, parents are entitled to services pursuant to section 361.5, subdivision (a), only if they have custody of the children at the time of removal. Parents are entitled to services under the authority of section 361.2, subdivision (b)(3), only if they are noncustodial parents requesting custody. Any other order is outside the court’s authority. Because the court failed to make a finding about the father’s custody status, the father argues that this court cannot determine what type of services were provided and cannot determine if there is legal justification for terminating them. The father asks that this court find as a matter of law that the father was a custodial parent and remand for a new hearing to determine whether the children should be removed from the father. Only then can the issue of services be addressed.
In response, the department argues that this contention has been waived because no appeal was taken from the orders of the dispositional hearing, that any error was invited because the father argued in the juvenile court that he was a noncustodial father, and any error is harmless because the father was offered reasonable reunification services as if he had been the custodial father.
We agree the issue is waived. The dispositional order in a dependency proceeding is a final appealable order. (§ 395; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) An unappealed disposition is final and binding and may not be attacked on an appeal from a later appealable order. (In re Meranda P., supra, at p. 1150.) As we stated in Meranda P., permitting a parent to raise issues which challenge the validity of a final earlier appealable order, even when the challenge addresses important procedural or substantive rights, would directly undermine the important concern of finality in dependency proceedings. (Id. at pp. 1151-1153.) We are not willing to consider an issue for the first time on appeal which could easily have been addressed by the juvenile court had it been presented at the time of the dispositional order. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180.)
We find no confusion in the record concerning the father’s status to justify considering the issue for the first time on appeal of a subsequent order. The father was incarcerated in Fresno County Jail and had been at least since February 9, 2007. The court ordered that the children be removed from the mother alone because the children were living with her alone at the time of the removal in April 2007. Under the statutory scheme, a custodial parent is one with whom the child is residing at the time of the events or conditions leading to jurisdiction. (In re V.F. (2007) 157 Cal.App.4th 962, 969 [dependency statutory framework distinguishes between parent with whom child was residing at time § 300 petition was initiated (custodial parent), and parent with whom child was not residing at time events or conditions arose that brought child within provisions of § 300 (noncustodial parent)]; see also § 361.1 [“If a child is removed from the physical custody .…”]; § 361.2, subd. (a) [when there is removal, court must determine if there is parent with whom child was “not residing at the time that the events or conditions” leading to removal occurred who wishes to assume custody].) The father did not have physical custody of the children. (See In re V.F., supra, 157 Cal.App.4th at pp. 969-970 [father who had been incarcerated at time of removal was not custodial father].)
The father argues that a noncustodial parent can never be an offending parent for purposes of dependency, and the petition allegation as to him was sustained, making him an offending parent, which creates confusion as to whether or not he was a custodial parent. We disagree. Although children cannot be removed from a parent who does not have custody (see R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270), a parent’s custodial status is a separate question from whether the parent’s conduct brings the child within the jurisdiction of the juvenile court as a dependent child. (See In re V.F., supra, 157 Cal.App.4th at pp. 969-970 [§ 361.2 applies to noncustodial parent without regard to parent’s status as offending or nonoffending parent, suggesting noncustodial parent can be either].) This court unfortunately sees a number of cases in which the harm leading to dependency has been inflicted by both a custodial parent and a noncustodial parent (for example, sexual or physical abuse by a noncustodial parent and the custodial parent’s failure to protect.) In this case, the father’s drug use and violent lifestyle choices resulted in his incarceration and his inability as a noncustodial parent to care for or protect his children. Noncustodial parents have duties to care for and protect their children similar to those held by custodial parents. A finding that the father failed to protect or to provide for his children is not inconsistent with a finding of noncustodial status.
Indeed, the father recognized his status as a noncustodial father and affirmatively asserted it during the proceedings in an attempt to challenge the petition. The father cannot change his position to gain legal advantage on appeal, and any error spawned by a party’s position at trial is invited error. (See Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685 [where party, by conduct, induces commission of error, he is estopped from asserting it as grounds for reversal].) No one was confused about the father’s status. Implicit in the court’s removal order, which was limited to the mother, is a finding that the father was a noncustodial father.
We also reject the father’s contention that the services offered him could only be offered to a custodial parent. At the time of the dispositional hearing, it was implicit in the report of the social workers and the assessments that the father intended to return home when he was released from custody. At that point, he would rejoin the family and be subject to the same efforts to achieve reunification of the family. Reunification services are authorized to assist noncustodial parents in obtaining future custody. (§ 361.2, subdivision (b)(3).)
Even if there were confusion as to the father’s custodial status, no harm was done. The father was provided services designed to correct the family’s identified problems and facilitate reunification. At the time of the dispositional hearing, this included reunification with the father because he would soon be released. We cannot see how the father was harmed irrespective of what statutory section authorized the services. There is no contention that the services would have been different had a particular section been identified as the granting authority. Given the circumstances, it is highly likely that the identical services would have been offered regardless of whether the court considered the father custodial or noncustodial. The reality was that the father was rejoining the family and he would as a result have physical custody of the children if the family were to be reunified. His drug problems, like the mother’s, would need to be addressed.
II. Reasonableness of services
The father also claims that the reunification services offered him were not reasonable. At the review hearing, the father claimed there was a conflict between the services mandated by probation and those mandated in the dependency proceeding. On appeal, he argues that the department did “very little to assist [him] with services” and “nothing to coordinate his case plan with the requirements of his probation.” He claims the department did not meet with the probation officer until shortly before the dispositional hearing and this was too late.
We have reviewed the record and find that reasonable services were provided, and substantial evidence supports the court’s finding that the father had made no progress toward reunification. Services are reasonable when the supervising agency identifies the family’s problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) There was no objection to the original service agreement, which mandated domestic violence, substance abuse, and mental health evaluations, an inpatient substance abuse program, random testing, a parenting course, and a batterer’s treatment course. The father participated in the evaluation process while he was incarcerated. When he was released, he was available to begin treatment. In August, shortly before he was released, the court warned both parents that, due to the young ages of their children, there was a very limited time frame for reunification and that each parent needed to make compliance with the plan a priority. Each parent was advised to be “persistent” and “diligent” in their dealings with the department. After his release, the father participated in a meeting with department staff on August 31, 2007. He was told what would be required of him if he were to receive his children back. Specifically, he was told an intake interview had been arranged for him so that he could begin his inpatient substance abuse treatment as soon as possible. He was also told he would be required to begin drug testing immediately.
Despite the warnings from the court and from the department, the father made little or no effort to comply with the services offered until shortly before the six-month review hearing. He failed to even show up for the intake appointment the department had arranged at the inpatient program. He made no effort to explain his absence. He made no effort to complete a parenting course. He tested only once for drug use and did not show up for any of the remaining random drug tests, even though he had been told a no-show would be treated as a dirty test. He did not stay in contact with the department, a component of his reunification agreement, and did not seek to visit with the children until early November. His only justification for his minimal efforts in complying with his reunification agreement is that there was a conflict between his dependency requirements and his probation requirements. He fails to acknowledge, however, that any conflict was of his own making.
The father claims that, in late August, he told the department social worker assigned to the case that there was a conflict with his probation that prevented his participation in the scheduled substance abuse treatment program. He claimed the conflict was that he had been ordered to attend a batterer’s treatment course and the substance abuse treatment program arranged by the department did not contain a domestic-violence component. According to the father, the social worker told him she would contact the probation officer and get back to him, but never did. This claim is not supported by the department’s service log record. The department’s records do not record any such conversation and show in contrast that it was the father who was to contact the probation officer. Instead, the father chose not to inform his probation officer that he had a dependency case pending, because it was embarrassing. The probation officer gave his directions without any knowledge of the department’s efforts to set up services for the father because the father chose to keep the probation officer in the dark. As the court noted, the father’s claim that he would be violated by complying with the department’s directions is not credible. The father made no effort to resolve the perceived conflict. His probation officer later stated that, had he known of the dependency case requirements, there would not have been a conflict. The basic requirements of the reunification agreement and the probation conditions were compatible, not conflicting.
The father also claims he did not drug test as required by the department because his probation officer told him not to test until December. However, this is an indefensible position for a number of reasons. First, the father knew in August that random testing was required by the department. Where is the conflict? There is no showing that probation forbade him to test prior to the December date. The father testified he believed the two cases were separate. So why did he believe the testing date set by the probation officer would nullify the testing requirements of the department? Second, the reason the father did not test for probation until December was that he was using illicit drugs and would have tested dirty. He admitted to his probation officer that he had used marijuana since his release from jail. Any claim that he was confused about the testing requirements is a creative attempt to shift attention from the real reason he did not test.
Although the department must assist a parent in complying with the reunification plan, it is not required to hold a parent’s hand.
“The requirement that reunification services be made available to help a parent overcome those problems which led to the dependency of his or her minor children is not a requirement that a social worker take the parent by the hand and escort him or her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct his or her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go ‘on hold’ while the parent makes another stab at compliance.” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)
The father cannot show that the department failed to assist him in resolving any conflict between his reunification plan and his probation conditions because he cannot show that there were any. It was his choice to ignore the terms of his reunification plan and to keep the existence of the dependency case from his probation officer. He now bears the consequences of these decisions.
Disposition
The order of the juvenile court terminating services for the father is affirmed.