Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 77638
RIVERA, J.
D.G., the mother of T.G., appeals from the order declaring T.G. a dependent of the juvenile court. She contends that there is insufficient evidence to sustain the allegations of the Welfare and Institutions Code section 300 petition, and that the court erred in finding that she waived reunification services. We affirm.
All further statutory references are to the Welfare and Institutions Code.
I. Factual Background
On October 24, 2007, a section 300 petition was filed alleging that mother’s live-in boyfriend rubbed T.G.’s breast, buttocks, and vaginal area but that mother did not believe T.G. when she told her of the incident. The petition further alleged that mother was no longer willing to provide a home for T.G. On October 25, 2007, the court ordered that T.G. be detained and placed in emergency shelter care.
The contested jurisdictional hearing was held on February 13, 2008. The San Mateo County Human Services Agency’s (the Department) report noted that T.G. told the social worker she initially did not tell anyone she had been molested because she feared no one would believe her. She told the social worker that the first incident of abuse occurred in August 2007 when her mother’s boyfriend touched the side of her breast. She thought the touch might have been accidental until the next morning when he sat next to her on the couch and rubbed her breasts and vagina over her clothing. She pushed him away and he told her not to tell her mother. Another incident occurred a few weeks later when he put his hands on her hips. The final incident occurred when he grabbed her buttocks. Mother accused her of lying when T.G. told her about the abuse.
The Department further reported that T.G. did not want to be placed with her father because she did not feel close to him or comfortable in his home and did not get along with his current girlfriend. T.G. had known her father for only a few years because he had been incarcerated when T.G. was born in 1994 and he was not released from custody until 2004. T.G. told the social worker she would run away if placed with her father. She had previously run away from his home when she was living with him during the summer of 2007. The social worker testified that T.G.’s maternal cousin was T.G.’s primary caregiver throughout her life and that T.G. called her, “Mom.” The Department recommended that T.G. be placed with her maternal cousin.
Mother testified that she was not prepared to have T.G. live with her. She did not have adequate housing. She produced a letter written by T.G. in which T.G. apologized for having lied “to you and everyone about everything and for talking too much.” Mother testified that she found the letter on December 13, 2007.
Father testified that he could provide for T.G. and wanted her to live in his home. T.G. had lived with him during the summer but had returned to live with mother in late August 2007 after school started. T.G.’s maternal cousin testified that T.G. had lived with her for approximately eight years and that she and T.G. were very close. T.G. told her that she was uncomfortable living with her father and believed he did not listen to her or understand her.
The court sustained the allegations of the petition and declared T.G. a dependent of the court. She found that the letter was not “an actual recantation of anything.” The court ordered that T.G. be placed with her maternal cousin. The court ordered reunification services for father, but denied services to mother, finding that she waived them both explicitly and implicitly.
II. Discussion
Mother contends that there is insufficient evidence to sustain the allegations of the petition. She cites father’s testimony that T.G. was living in his home in August 2007, when T.G. said the first incident occurred, and that T.G. recanted the allegations in the letter.
“ ‘In juvenile cases, as in other areas of 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 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.’ [Citation.] ‘ “If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed . . . .” ’ [Citations.]” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Here, the court had before it the Department’s report which contained T.G.’s statements about the abuse, and the social worker’s testimony regarding her conversation with T.G. in which she described the incidents. (See § 355, subd. (b) [hearsay evidence in department’s social study admissible and constitutes competent evidence upon which a jurisdictional finding may be based].) T.G. was also present at the jurisdictional hearing and available for cross-examination. Hence, mother could have cross-examined T.G. about her statements. (See In re Lucero L. (2000) 22 Cal.4th 1227, 1243-1244 [admission of hearsay evidence from department’s social study does not violate parents’ due process rights when parents have the opportunity to subpoena and cross-examine the hearsay declarant].)
The evidence before the court also included father’s testimony that T.G. returned to live with her mother in late August 2007 after she had returned to school which corroborated T.G.’s version that the incidents began in August. Further, the Department’s report also included mother’s statement that while she initially did not believe T.G.’s allegations, she later kicked her boyfriend out of her home and filed a restraining order against him in order to protect her children. And, the social worker testified that T.G. had never recanted her statements about the incidents. While T.G., in the letter before the court, stated that she had lied, there was nothing in the letter to indicate what she had lied about. As the trial court found, the letter did not recant anything. In sum, there was substantial evidence before the court to sustain the allegations of the petition.
Mother also contends that the juvenile court erred in denying her reunification services. The record indicates mother waived her right to services.
At the jurisdictional hearing, mother testified that she was not prepared to have T.G. living with her. Consequently, although she contested the evidence to support jurisdiction, she did not object to the court’s finding or refute the Department’s argument that she had agreed to waive services. The following colloquy occurred: “[The Court]: I have one question: Under the circumstances, I would offer reunification services to [father]. Visitation would be supervised, if [T.G.] is amenable. [¶] But I don’t believe under the circumstances and the evidence that there’s any need to offer them to mother. [¶] Am I correct, Mr. Silberman? [¶] [Mr. Silberman (county counsel)]: Well, my understanding is she’s agreed not to have them. She does have the right to waive them. [¶] [The Court]: It seems to be implied in her testimony. [¶] [Mr. Silberman]: Yes. And she said it explicitly to the social worker as well. [¶] [Ms. Yolken (mother’s counsel)]: My comment on that, your Honor, would be: What she said is, given her circumstances, she’s not in a position to take [T.G.] at this time. She just wants to know that [T.G.] is going to be safe where she is.” The court did not further address the issue of reunification services and mother did not object to the court’s finding that she had waived them. While the record does not contain an express waiver by mother of reunification services (see § 361.5, subd. (b)(14) [parent required to execute waiver of services form and court required to make finding on record that waiver is knowing and intelligent]), the error was harmless.
The record shows mother told the Department’s social worker that she was willing to have her parental rights terminated. At the hearing, she testified that she was unable to care for T.G. Finally, mother did not object to the court’s finding that she had waived her right to reunification services. On these facts, the court’s error in not requiring that a waiver be executed and failing to make the requisite section 361.5, subdivision (b)(14) finding on the record, was harmless. Mother was represented by counsel throughout the proceedings and it is clear that she understood her rights and deliberately chose not to seek reunification services. There is no evidence that had the court properly admonished her concerning her right to reunification services, she would have requested them. (See Arlena M. v. Superior Court (2004) 121 Cal.App.4th 566, 573 [court’s error in failing to advise parent pursuant to § 361.5, subd. (a)(3) that failure to participate in reunification plan can result in termination of parental rights harmless where parent aware of six-month limitation for reunification and no evidence in record that she would have participated in plan if directly advised].) In any event, if mother now desires reunification services, she has the right to petition the juvenile court under section 388 to change or modify the court’s order.
III. Disposition
The order is affirmed.
We concur: RUVOLO, P.J., REARDON, J.