Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK80326 Stanley Genser, Referee.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KLEIN, P. J.
David C. (father) appeals an order denying family reunification services with respect to his two children, O.C. and J.C. Father contends the juvenile court’s order did not comport with Welfare and Institutions Code section 361.5, subdivision (e)(1) and the denial of family reunification services was an abuse of the juvenile court’s discretion.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
We conclude father forfeited these issues by failing to request family reunification services or object to the denial of services in the juvenile court. Further, even if father’s forfeiture is overlooked, the juvenile court complied with the statutory mandate and committed no abuse of discretion. We therefore affirm the order denying father family reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
The children were taken into protective custody by officers of the Los Angeles Police Department on December 7, 2009, after mother was hospitalized following a drug overdose and there were no family members available to care for them. Father was unavailable because he was in jail awaiting trial on a pending felony charge for which he had been arrested on May 10, 2009. The Department of Children and Family Services (the Department) placed the children in foster care and filed a petition alleging the children were dependent within the meaning of section 300, subdivisions (b) and (g).
The detention report indicated mother, who had a history of substance abuse and mental and emotional problems, had been involuntarily hospitalized for evaluation and treatment of her psychiatric condition.
On December 10, 2009, father completed a Statement Regarding Parentage (JV-505) in which he declared he was in a committed relationship with mother when the children were born, both children had lived with him since birth, he held the children out as his own, and he participated in their care.
At the detention hearing, the juvenile court ordered the children to remain in shelter care and granted mother and father supervised visitation.
The jurisdiction report prepared for January 21, 2010, indicated the family previously had been the subject of referrals in January of 2008 for general neglect of newborn J.C. after mother tested positive for marijuana and benzodiazepines at the time of the child’s birth, and in June of 2008 based on allegations of caretaker absence and incapacity due to alleged drug use by mother. Both referrals were closed as unfounded. The family was the subject of another referral in May of 2009, when it was alleged mother was unable to care for the children due to drug abuse and that mother and father had engaged in domestic violence in the presence of the children. However, the referral was closed after the family denied domestic violence and mother tested negative for drugs.
The jurisdiction report indicated father had a pending court date on a kidnapping charge. Mother advised the social worker the family lived together before father’s arrest and that father appropriately had cared for the children. Mother and father planned to reside together when father is released.
Father’s arrest and conviction history provided by the California Department of Justice was attached to the jurisdiction report. It indicated that, as a juvenile, father was found to have committed robbery in 2001. As an adult, father was convicted in 2003 of driving under the influence and giving false information to a peace officer. In 2005, father was convicted of driving under the influence. In 2006, father was arrested for impersonating another and on warrants in his previous driving under the influence case. In 2007, father was convicted of misdemeanor battery. In 2008, father was convicted of inflicting corporal injury on a spouse or cohabitant, a misdemeanor. Also in 2008, father was convicted of taking a vehicle without the owner’s consent in one case and trespass in another. Father was arrested in December of 2008 for driving under the influence. On May 10, 2009, he was arrested on the kidnapping charge that remained pending and on a warrant in his most recent driving under the influence case.
Father told the social worker he was willing to do whatever was necessary to have the children placed with him after his release. Father did not know how long he would be incarcerated but wanted to make sure he did not lose his parental rights. Father told the social worker he was not aware of any drug use by mother but stated mother would benefit from a parent education program and AA classes. Although the juvenile court had ordered monitored visitation, father did not want his children to visit him “at any correctional facility, as it was not appropriate.”
The Department recommended the children remain suitably placed and that mother and father received family reunification services. The Department recommended mother participate in a substance abuse program with random drug testing, individual counseling and a parent education program and that father participate in a parent education program.
On January 21, 2010, the juvenile court found David C. the children’s presumed father. Father’s counsel requested visitation for father, pictures of the children and telephone contact with the children. Mother’s counsel requested the children be removed from San Bernardino County and replaced in Los Angeles County. The juvenile court ordered monitored visitation for both parents, authorized a monitor to transport the children to visit father and directed the Department to arrange for photographs of the children to be sent to father. The juvenile court also ordered the Department to replace the children in Los Angeles County forthwith and continued the matter to the next day for a report on the placement of the children.
An information for court officer form filed January 22, 2010, indicated that on January 8, 2010, the social worker spoke with maternal great-grandmother regarding placement of the children. Maternal great-grandmother told the social worker the family was concerned about mother’s ability to care for the children and stated, “We would like to work with [father] because he is a very genuine person and he deserves a chance to care for his children. He is very sweet and loving. [Mother] believes that he was a wonderful father and very attentive. He provided food and shelter for his children and he was dealing with a very mentally ill person. He has been trying to tell us the truth about mother using drugs and not doing what she should have been doing but we did not believe him, we did not listen to him.”
A social report prepared for March 1, 2010, indicated mother had been evicted from her apartment but was living with relatives and was compliant with her medication. Mother had been provided referrals but was not participating in any services and failed to appear for random drug tests in February of 2010. Father remained in jail on his criminal matter.
On March 1, 2010, the juvenile court continued the matter for a contested hearing. Mother indicated she was staying with a friend in Lancaster but was unable to provide an address. The Department reported mother repeatedly failed to appear for scheduled visits and further visits would be monitored by a Department aide.
On April 2, 2010, the juvenile court received the social reports into evidence and sustained the dependency petition as modified. When the juvenile court asked if the parties were ready for disposition, father’s counsel responded affirmatively. The juvenile court then inquired as to the status of father’s criminal matter. Father indicated he had been sentenced to four years in prison at 80 percent which would require him to serve “another 26 months.” Father’s counsel indicated father believed he was going to be incarcerated “up state.” When the juvenile court asked if the Department was recommending family reunification services for father, county counsel responded, “We didn’t have that information about the amount of time he will be serving.”
As sustained, the petition alleged mother has a history of substance abuse and is a current abuser of controlled substances which renders mother incapable of providing regular care. Further, mother has a history of mental and emotional problems which, if left untreated, render mother incapable of providing regular care. Father has failed to provide the children with the necessities of life and is incarcerated.
The juvenile court then stated family reunification services for father would be “pointless.” Father’s counsel responded, “That’s fine, your honor. [¶] The only thing the Department is asking for my client to do is parenting class.”
The juvenile court found clear and convincing evidence requiring removal of the children from the custody of their parents. The juvenile court noted the children could not be placed with father because he was incarcerated and father had failed to provide for the children when he was not incarcerated. The juvenile court ordered the children to remain suitably placed and indicated it would “order permanent placement services for father...” under section 361.5, subdivision (e)(1). The juvenile court stated father was going to be “incarcerated beyond the period of reunification and there’s no evidence it would be in the best interest... [¶]... [¶] of the children to provide him with reunification services.” The juvenile court then indicated, “As I understand the reports, father really has no relationship with the children.” Father’s counsel responded that was incorrect and indicated father lived with mother and the children until he was arrested and “mother’s subsequent inability to care for the children... led to the case being here.”
Section 361.5, subdivision (e)(1) provides: “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 length and 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, the likelihood of the parent’s discharge from incarceration or institutionalization within the reunification time limitations described in subdivision (a), and any other appropriate factors. In determining the content of reasonable services, the court shall consider the particular barriers to an incarcerated or otherwise institutionalized parent’s access to those court-mandated services and ability to maintain contact with his or her child, and shall document this information in the child’s case plan. 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:
The juvenile court asked whether father and mother had lived together under the conditions in which mother currently was living. Father’s counsel responded negatively and indicated father was arrested seven months before the children came to the attention of the Department. The juvenile court responded, “So the child would have been 14 months old when he was incarcerated?” Father’s counsel responded affirmatively.
Although counsel was correct with respect to father’s youngest child, father’s oldest child was 28 months of age on the date of father’s arrest.
The juvenile court then denied father family reunification services pursuant to section 361.5, subdivision (e) (1) and stated: “Providing [family reunification] services would prevent permanency for the child[ren] in the event that mother [is] unable to reunify [and] that [would] be detrimental to the children.”
The juvenile court ordered mother to participate in drug rehabilitation with random testing, parenting class and individual counseling to address case issues and ordered mother to take all prescribed medications. The juvenile court set the matter for a review hearing on August 30, 2011, and ordered the Department to send photographs of the children to father every three months at his place of incarceration.
CONTENTIONS
Father contends an incarcerated parent is entitled to family reunification services unless the juvenile court finds, by clear and convincing evidence, that provision of services would be detrimental to the children. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 76; § 361.5, subd. (e)(1).) He asserts the denial of family reunification services must be set aside because the juvenile court did not make this necessary finding. He also contends the denial of family reunification services was an abuse of the juvenile court’s discretion.
The Department has filed a letter indicating it will not file a brief supporting or opposing father’s position because it did not request the order and it takes no position on the issue in this appeal.
DISCUSSION
1. Father has forfeited the issues he seeks to raise on appeal.
Initially, we note father appears to have acquiesced in the juvenile court’s determination to deny family reunification services. When the juvenile court indicated family reunification services for father would be “pointless, ” father’s counsel stated, “That’s fine, your honor. [¶] The only thing the Department is asking for my client to do is parenting class.” This comment by father’s counsel can only be read as an expression of agreement with the juvenile court’s observation that providing father family reunification services would be “pointless.” By noting the proposed case plan involved only participation in a parenting class, counsel essentially conceded that, given father’s term of incarceration, attending a parenting class would not make a difference in the outcome of the case. Although father’s counsel disputed the juvenile court’s characterization of father’s participation in the lives of the children prior to his incarceration, counsel did not object to the denial of family reunification services or request that services be provided.
Ordinarily a reviewing court will not consider a challenge to a ruling if an objection could have been made, but was not made, in the juvenile court. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [“A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do”]; see also In re Alanna A. (2005) 135 Cal.App.4th 555, 562 [a party may not raise a fact-driven issue for the first time on appeal].)
Thus, father has forfeited the issues he seeks to raise on appeal by failing to raise them in the juvenile court. However, even putting father’s forfeiture aside, father’s claims fail on the merits.
2. The juvenile court made the required finding of detriment to the children.
Father places primary reliance on In re Kevin N. (2007) 148 Cal.App.4th 1339. In that case, the juvenile court found the parent was going to be incarcerated for more than six months and, because one of the two children at issue was under the age of three years at the time the children were detained, services could not exceed six months. Further, even if services could be provided for 18 months, the parent would be released only one month before services ended. The juvenile court concluded provision of services would be futile, noting the parent had minimal contact with the children and any possibility of return to the parent was speculative. Kevin N. reversed the order denying family reunification services. It held that, because only one of two children was under the age of three years, the six-month limitation may not apply to the children. (Former § 361.5, subd. (a)(3) [see Stats. 1999, c. 805 (A.B. 740), § 1.2]; the corresponding provision is now found at § 361.5, subd. (a)(1)(C).) Further, section 361.5, subdivision (e)(1) requires a finding services would be detrimental to the children and the juvenile court’s finding services would be futile did not comply with the statute. Thus, the matter was remanded to permit the juvenile court to consider whether provision of services would be detrimental to the children, as required by the statute. (In re Kevin N. at p. 1345.)
Kevin N. is distinguishable from father’s case in that both of father’s children were under the age of three years when they were detained. Section 361.5, subdivision (a)(1) directed the juvenile court to provide family reunification services as follows: “(B) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under three years of age, court-ordered services shall be provided for a period of six months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care as defined in Section 361.49 unless the child is returned to the home of the parent or guardian.” (§ 361.5, subd. (a)(1)(B.)
Because father stated he would be incarcerated for more than two years after the disposition hearing, it was clear that father’s attendance at a parenting class would not have permitted father to reunify with the children within the statutorily mandated family reunification period. Indeed, father was going to remain incarcerated well beyond the 18-month maximum term of reunification. (See § 361.5, subd. (a)(3) [“Notwithstanding subparagraphs (A), (B) and (C), of paragraph (1), court ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown... that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period.”])
This case is also distinguishable from Kevin N. in another important respect. The juvenile court in Kevin N. did not consider the issue of detriment and found only that providing family reunification services to the parent would be futile. (In re Kevin N., supra, 148 Cal.App.4th at p. 1435.) Here, although the juvenile court initially stated family reunification services would be “pointless, ” it later also stated: “Providing [family reunification] services would prevent permanency for the child[ren] in the event that mother [is] unable to reunify [and] that [would] be detrimental to the children.” Thus, the juvenile court expressly found providing services to father would be detrimental to the children.
Based on the foregoing, we conclude the juvenile court adequately complied with the relevant provisions of section 361.5, subdivision (e)(1).
3. The record does not support father’s claim the juvenile court abused its discretion.
Father contends that, rather than engaging in the statutorily mandated weighing of factors enumerated in the statute, the juvenile court simply announced it would be “pointless” to grant reification services and found services were not in the children’s best interest. Father goes through each of the factors set forth in the statute and complains the juvenile court either did not address the factor or did so in an unsatisfactory manner. Father concludes the juvenile court exceeded its authority and abused its discretion when it ignored this statutorily imposed duty. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.)
However, in light of father’s failure to object to the denial of family reunification services, the juvenile court’s failure to make a detailed record is entirely understandable. In any event, the record indicates the juvenile court considered the relevant factors, namely, the age of the children, the length of the parent’s prison sentence and the likelihood of the parent’s discharge within the reunification time limitation of the Welfare and Institutions Code. In sum, we find no disregard of the juvenile court’s statutory duty or abuse of its discretion.
We note, in passing, that family reunification services need not be provided to a parent when the juvenile court finds, by clear and convincing evidence, the parent has been convicted of a violent felony as defined in Penal Code section 667.5, subdivision (c). (§ 361.5, subd. (b)(12).) Kidnapping, the offense for which father was arrested, is a violent felony. (Pen. Code, § 667.5, subd. (c)(14). However, the record does not indicate the offense underlying father’s criminal conviction.
DISPOSITION
The order denying father family reunification services is affirmed.
We concur: CROSKEY, J., KITCHING, 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 reunification service plan if actual access to these services is provided. The social worker shall document in the child’s case plan the particular barriers to an incarcerated or institutionalized parent’s access to those court-mandated services and ability to maintain contact with his or her child.”