Opinion
A101149.
7-22-2003
In re TIANNA W., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY BUREAU OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. WILLIAM W., Defendant and Appellant.
Appellant is the father of Tianna W., who was made a dependent of the juvenile court. In this appeal from the dispositional order, appellant challenges the jurisdiction of the juvenile court and the visitation order. We affirm.
PROCEDURAL AND FACTUAL HISTORY
Tianna W. is one of three children born to Kelly M. In September 2002, Kelly gave birth to her youngest child in Butte County and was living with the baby in that county. Only the two older children were subject to the current dependency proceedings in Contra Costa County.
By December 2002, the baby had been taken into protective custody in Butte County and the mother had returned to Contra Costa County.
On August 27, 2002, Cody M. and Tianna W., the two older children, were taken into protective custody when they were discovered living in squalid conditions with their maternal grandmother, who was using drugs. As to Tianna, the petition alleged that her parents whereabouts were unknown, that the home of the maternal grandmother was unsafe, and that that the mother had left the child with an unsuitable caretaker with no provision for the childs support or care. (Appellant is not the father of Cody, the second child, and this appeal does not concern that child.)
Before the jurisdictional hearing was held, both parents were located-the mother in Butte County and the father in the Contra Costa County jail. Counsel was appointed for each parent, and the allegations of the parents unknown whereabouts were dismissed. The petition was amended to allege that both the mother and the father had a history of drug abuse that rendered them unable to support or care for Tianna.
At the jurisdictional hearing, the father appeared in person, though he was still in custody awaiting trial on criminal charges. The social workers report revealed that the father had been arrested in April 2002 while burglarizing a residence, and he was found to have marijuana in his possession. The father also had a criminal history involving possession of weapons and drugs. He argued, however, that his criminal history and prior drug offenses were insufficient bases for the juvenile courts jurisdiction, without evidence that his ability to parent Tianna was impaired. The trial court sustained the petition.
For the disposition hearing, the social workers report indicated that the father was interested in assuming a parental role for Tianna. The social worker noted, however, that the outcome of the fathers pending criminal trial was still unknown. Even if the father were released from custody, the social worker concluded that the father would need to develop some understanding of the effect upon his parenting ability of his criminal behavior, weapons possessions, and drug use. Moreover, the father would need to develop a relationship with Tianna.
Tianna, born in November 2000, was then two years old. She was described as a withdrawn, fearful child. She had been abandoned by her mother in October 2001 and apparently did not know her father. The social worker recommended that contacts between Tianna and her father be limited to letters while the father was in custody and supervised visits after he is released. The father submitted the matter on the social workers report.
The juvenile court adopted the social workers recommendations. Tianna was removed from parental custody under a reunification plan for both parents. The father appeals.
DISCUSSION
I. Jurisdiction of the Juvenile Court
Appellant first challenges the jurisdictional allegations of the petition, arguing that his alleged history of drug use is not sufficient to support a conclusion that he is unable to care for Tianna. Appellant also challenges the sufficiency of the evidence to support the juvenile courts findings that the allegations were true. Appellant argues that there was no "nexus" between the evidence of appellants criminal history and Tiannas welfare.
Appellants arguments reflect a misunderstanding of juvenile dependency proceedings. Appellant mistakenly presumes that the juvenile court could not take jurisdiction without a showing that Tianna was at risk because of appellant. Appellant ignores the basic principle that jurisdiction of the juvenile court in a dependency proceeding is taken over the child, not the parent. (Welf. & Inst. Code, § 300.)
All undesignated section references are to the Welfare and Institutions Code.
Allegations concerning one parent may be sufficient to support a jurisdictional finding without any need to plead jurisdictional facts as to the other. (In re James C. (2002) 104 Cal.App.4th 470, 482; In re Jeffrey P. (1990) 218 Cal. App. 3d 1548, 1552-1554, 267 Cal. Rptr. 764; see In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
Here, the petition alleged that the mother had left Tianna with an unsuitable caretaker and that the mothers history of drug abuse rendered her unable to care for the child. The trial court found these allegations true. Because appellant, the father, was not a custodial parent, no jurisdictional allegations about him were necessary to bring Tianna within the juvenile courts jurisdiction.
If appellant believed the allegations did not support a jurisdictional finding that Tianna fell within the statutory description of a dependent child, appellant should have filed a motion, akin to a demurrer, at the pleading stage. (See In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036-1037.) His failure to challenge the sufficiency of the allegations precludes raising the issue on appeal. (In re Shelly J. (1998) 68 Cal.App.4th 322, 328-329.)
The issue concerning appellant was whether he, as noncustodial parent, was entitled to custody of Tianna or whether placement with him would be detrimental to her safety, protection, or physical or emotional well-being. ( § 361.2, subd. (a).) This issue is not a jurisdictional question, but rather one of disposition. The social workers dispositional report recommended that Tianna not be placed with appellant. Appellant was in jail and obviously unable to take custody. Furthermore, appellant had a history of weapons and drug offenses and had demonstrated no ability to care for a two year old. Moreover, appellant had no existing relationship with Tianna. Appellant submitted to the social workers dispositional report and makes no claim on appeal that the order for placement of Tianna was in error.
II. Reunification Services
Appellant challenges the adequacy of his reunification plan, asserting that the plan is "generic" and gives no indication that the services are actually available to him in jail. Appellant further complains that the juvenile court should not have denied him visitation with Tianna while he was in custody.
There is no question that an incarcerated parent is entitled to reasonable reunification services, including phone calls with the child, visitation when appropriate, as well as counseling, parenting classes and vocational training when available. (& sect; 361.5, subd. (e)(1).) Here, the reunification plan requires appellant to take parenting classes and undergo counseling for drug abuse. He must also obtain suitable housing, remain drug-free, and develop a parental relationship with Tianna. Appellant was granted supervised visits with Tianna upon his release from custody but limited to contact by letter while he remained in jail.
We conclude that appellant has waived his objections to the reunification plan and the visitation order by failing to object below. At the disposition hearing, appellant submitted the matter on the social workers report. He made no assertion that reunification services would be unavailable to him in jail or that the contact with Tianna would be too limited. Had appellant raised the objections before the juvenile court, the court may well have entered a different order. Appellant cannot raise the points for the first time on appeal. (In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886; In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642.)
We note, however, that appellant is not without recourse. At each status review hearing and again at the section 366.26 hearing, the juvenile court must consider the reasonableness of the services offered or provided to the parents. If the court finds the services were inadequate, the court may extend the reunification period. (§§ 361.5, subd. (a)(3), 366.21, subds. (e), (f) & (g)(1), 366.26, subd. (c)(2).) Consequently, appellant may appropriately raise at a future hearing the adequacy of the reunification services, including visitation, actually provided to him. At such hearing, the juvenile court will have information that we do not have on what services were available to him in jail, whether appellant participated in the services offered to him, whether appellant remained in custody and wrote letters to Tianna, or whether he was released from custody and given supervised visits.
We are informed that a status review hearing is scheduled for July 22, 2003.
DISPOSITION
We concur. JONES, P.J., STEVENS, J.