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In re D.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2020
No. B297966 (Cal. Ct. App. Jan. 31, 2020)

Opinion

B297966

01-31-2020

In re D.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.Z. et al., Defendants and Appellants.

Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant M.Z. Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant J.B. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP00568) APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Juvenile Court Referee. Affirmed. Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant M.Z. Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant J.B. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.

J.B. (Father) and M.Z. (Mother) are the parents of a daughter, D.B. (Minor), who was one month old when dependency proceedings commenced. The Los Angeles County Department of Children and Family Services (the Department) filed a petition alleging Minor was at substantial risk of serious physical harm from her parents' methamphetamine and marijuana abuse. Prior to the jurisdiction and disposition hearing, Mother and the Department reached an agreement whereby the Department agreed to amend the petition to strike the allegations against Mother in exchange for her agreement not to contest the Department's recommended case plan—which called for removal of Minor from both parents' custody. The juvenile court later sustained the petition's allegations against Father and adopted the Department's recommended disposition. Mother now appeals, arguing substantial evidence does not support Minor's removal from her custody. We consider whether Mother's agreement with the Department dooms the argument she makes.

I. BACKGROUND

A. Events Leading to the Dependency Petition

Minor was born in December 2018. Two days later, the Department received a referral from hospital personnel indicating Mother refused lactation counseling, disclosed that she had a history of drug abuse, and stated she previously had a child removed from her custody due to her history of methamphetamine abuse. Mother was very anxious to leave the hospital, which she ultimately did without any toxicology test being performed.

A Department social worker visited the family home the same day the referral was received and interviewed the parents. Mother claimed she had received prenatal care and was currently sober; she also told the social worker the only drug she had used in the past was marijuana. Mother also denied that Father used any illegal substances and stated she lost custody of her first child due to domestic violence with that child's father. Father likewise denied using any drugs or illicit substances, and he further denied Mother used any.

In that prior case, the juvenile court sustained allegations that Mother had a history of substance abuse, was an abuser of marijuana and methamphetamine, and had been under the influence of those substances while her older daughter, E.D., was under her care and supervision. The juvenile court also sustained allegations that Mother and E.D.'s father had engaged in a physical altercation while Mother was holding E.D., and that Mother had possessed marijuana, methamphetamine, and drug paraphernalia while Mother and E.D. were passengers in a vehicle.

Father and Mother submitted to on-demand drug and alcohol tests a few days later. Mother tested negative, but Father tested positive for amphetamine. A social worker conducted an unannounced home visit after receiving the test results. Upon arriving, the social worker observed seven empty beer bottles next to Minor's bassinet, which the paternal grandmother said were left over from a family celebration.

The social worker spoke to Father and asked if he had been using drugs or illicit substances. Father said he occasionally smoked marijuana. When confronted with the test results that were positive for amphetamine, Father stated the results were strange, agreed not to be alone with Minor, and agreed to take another on-demand drug test the following day. The social worker also spoke to Mother and she again claimed her only past drug use had been marijuana. She denied past use of methamphetamine and said she did not remember her 2011 arrest for possession of a controlled substance. Mother also declined to take a second on-demand drug and alcohol test.

The Department obtained a child removal order as to Father only. When served with the removal papers, Father packed a bag and agreed to stay at another location.

B. The Dependency Petition and Detention Hearing

The Department filed a three-count petition asserting jurisdiction over Minor under Welfare and Institutions Code section 300, subdivisions (b) and (j). Count b-1 alleged Father had a history of substance abuse and was a current user of amphetamine, methamphetamine, and marijuana, rendering him incapable of providing regular care for Minor. It further alleged Father had a prior criminal conviction for driving under the influence of alcohol and Mother failed to protect Minor when she knew or reasonably should have known about Father's substance abuse. Counts b-2 and j-1 alleged Mother had a history of substance abuse including methamphetamine and marijuana, and that her substance abuse interfered with providing regular care and supervision to Minor. Both counts further alleged Minor's sibling E.D. was a dependent of the juvenile court and was receiving permanent placement services due to Mother's substance abuse.

At a detention hearing in late January 2019, the juvenile court asked Mother and Father if they waived a further reading of the petition and a statement of rights. Mother and Father, both present with counsel, agreed to waive both. The court found a prima facie case for detaining Minor and released her to Mother's care—contingent upon Mother undergoing drug and alcohol testing twice per week, residing with the maternal grandparents, allowing the Department to make frequent unannounced home visits, and participating in family preservation services.

C. Minor Is Removed from Mother's Custody

The following month, the Department filed an ex parte application asking the juvenile court to remove Minor from Mother's care. The Department reported Mother had been arrested and charged with grand theft, false personation, identity theft, and driving on a suspended license. At the time, Mother also had an outstanding felony warrant for narcotic sales.

Minor was in the care of the paternal grandparents when Mother was arrested, but the Department expressed concerns about their ability to protect Minor. Specifically, the Department noted the home was disorganized, the paternal grandparents were not forthcoming about Father's whereabouts, the paternal grandmother denied ever seeing Mother or Father abuse substances, and the paternal aunt's four children were also residing in the home.

At an initial hearing on the Department's ex parte application, the juvenile court detained Minor in shelter care and continued the matter. At a subsequent hearing, the juvenile court ordered Minor removed from the home and authorized the Department to arrange a suitable placement. Minor was subsequently placed with a foster family.

D. Department Investigation in Advance of the Jurisdiction Hearing

Department personnel interviewed the family again in preparation for the jurisdiction and disposition hearing. Regarding count b-1, Mother stated she had been surprised to learn Father was using drugs. She had never seen him use drugs and he had never seemed high. Regarding counts b-2 and j-1, Mother said she had been clean and sober since 2018, before she became pregnant with Minor. She said it had been very hard when the social worker asked her questions about her older daughter, she had not known what to say, and had not wanted to bring up the memories.

Mother and Father submitted to additional drug tests in March 2019. Father had three positive tests for amphetamine and methamphetamine between March 12 and March 20. Mother had two negative tests in the same time period.

E. Jurisdiction and Disposition

The juvenile court held a hearing in early April 2019 at which Mother and Father were both present. The Department informed the juvenile court that it had "an agreement as to Mother" but asked the court to adjudicate the petition's allegations against Father. Father sought to represent himself and attempted to waive his right to counsel. The court denied his request to represent himself, conducted a Marsden hearing, relieved Father's attorney, and appointed new counsel. As a result of the new appointment, the juvenile court agreed it would have to continue the hearing.

At a subsequent jurisdiction and disposition hearing, which neither Father nor Mother attended, the Department again informed the court it had reached a "resolution as to Mother in this matter." The Department stated it had "agreed to strike [M]other from the petition and Mother is agreeing to a suitable placement order. She has signed the case plan. I think [Mother's counsel] can confirm that he has spoken with her. She was present at the last hearing and signed the case plan." Mother's attorney confirmed Mother had "sign[ed] the case plan that she's in agreement with." Mother's attorney also verified "Mother . . . agrees to suitable placement." Father contested the allegations against him and requested the juvenile court dismiss count b-1.

As relevant here, the case plan specified Minor's placement as "SP," shorthand for suitable placement, and provided Mother would have monitored visitation that could be liberalized by the Department.

The court asked Mother's attorney on the record if he had reviewed the case plan with Mother. Counsel answered in the affirmative and confirmed he had answered any questions Mother had.

The court found count b-1 against Father true as alleged and dismissed counts b-2 and b-3 (the counts against Mother) without prejudice. As to disposition, the court found keeping Minor in the parents' custody would pose a substantial danger to her well-being, physical health, and safety given the unresolved drug abuse. The court declared Minor a dependent and removed her from the care, custody, and control of Mother and Father. It ordered monitored visitation for both parents and directed the Department to assess all relatives for placement.

The amended petition struck counts b-2 and j-1 in their entirety, with the handwritten notation that they were "Dismissed without prejudice." Count b-1 was amended to strike the reference to Mother's alleged failure to protect Minor from Father's substance abuse.

Both Mother and Father filed notices of appeal. Father's appointed counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 raising no contentions of error. Only Mother's appeal is now before us for decision.

II. DISCUSSION

Mother's only challenge on appeal is to the juvenile court's disposition order removing Minor from her custody. Mother contends the order is infirm because it is not supported by substantial evidence and there were reasonable alternatives that would have avoided the need to remove Minor from Mother's custody. As we go on to explain, having consented to the suitable placement order in the juvenile court (in exchange for the Department's agreement to strike all adverse allegations against her in the dependency petition), Mother cannot now successfully attack the placement order.

Generally, a claim that the evidence is insufficient to support a disposition order in a dependency matter is not forfeited even if not raised in the juvenile court. (In re R.V. (2012) 208 Cal.App.4th 837, 848.) An exception applies, however, where a parent submits to a social worker's recommendation that a child be removed from the parent's custody without introducing evidence or making argument. In such instances, the parent forfeits the right to challenge the sufficiency of the evidence to support the removal order on appeal. (In re Richard K. (1994) 25 Cal.App.4th 580, 589-590 [submission on a disposition recommendation "constitute[s] acquiescence in or yielding to the social worker's recommended findings and orders"] (Richard K.).)

A parent's submission on a social worker's recommendation is distinct from a submission on a social worker's report. Unlike submission on a recommendation, submission on a report merely constitutes agreement "to the court's consideration of such information as the only evidence in the matter" because the court must still weigh the evidence, make findings, and apply the law. (In re Richard K. (1994) 25 Cal.App.4th 580, 589.)

Here, Mother not only submitted on a social worker's recommendation without introducing evidence or argument, she also signed and agreed to the case plan, which included a requirement that Minor be suitably placed. She did so as part of an agreement with the Department, pursuant to which the petition was amended and the allegations against Mother were stricken. The juvenile court assumed jurisdiction over Minor based on the allegations against Father and adopted the case plan to which Mother had agreed. Mother's challenge to the disposition order is thus forfeited. (Richard K., supra, 25 Cal.App.4th at 589-590 ["[i]f, as occurred in this case, the court in turn makes the recommended orders, the party who submits on the recommendation should not be heard to complain"]; see also In re N.M. (2011) 197 Cal.App.4th 159, 168.)

Mother argues Richard K. is distinguishable because the mother in Richard K. was present at a four-day evidentiary jurisdiction hearing and participated in direct and cross-examination of witnesses. Mother's absence at the hearing has no bearing here, where Mother previously reached an agreement with the Department, upon the advice of counsel, and consented to the case plan. Moreover, Mother was present at the prior hearing, at which the Department informed the court Mother and the Department had reached an agreement. She did not object to the Department's statement at that time.

The remainder of Mother's arguments that seek to avoid the consequences of the agreement she reached with the Department are likewise unavailing. She argues the juvenile court erred by failing to comply with California Rules of Court, rule 5.534(g), which states a juvenile court must advise parents in section 300 cases of the right to assert the privilege against self-incrimination, the right to confront and cross-examine the persons who prepared reports or documents submitted to the court and witnesses called to testify at the hearing, the right to use the process of the court to bring in witnesses, and the right to present evidence to the court. Mother, however, waived a statement of her rights at the initial hearing on the petition. (See generally Cal. Rules of Court, rule 5.668(a) [rule 5.534(g) advisement is to be given "[a]t the beginning of the initial hearing on the petition, whether the child is detained or not detained"].) Next, Mother cites In re Monique T. (1992) 2 Cal.App.4th 1372 (Monique T.) for the proposition that it was a violation of her due process rights for the court to accept there was an agreement between Mother and the Department based only on the representations by Mother's attorney. Monique T. is inapposite because that case concerns California Rules of Court, rule 5.682 and holds a personal waiver by the parent of the right to contest a jurisdiction determination is required. (Id. at 1377; see also Cal. Rules of Court, rule 5.682(d), (e).) There was no waiver of a right to contest a jurisdiction determination by Mother here (indeed, quite the opposite), and even if the rationale in Monique T. were extended to disposition determinations, Mother's consent to the disposition order was confirmed not only by her attorney's representations but by her own signature on the case plan form. Mother's decision not to attend the jurisdiction and disposition hearing was hers to make, but her absence does not undermine the agreement she reached with the Department (an agreement her attorney referenced in open court at an earlier hearing when she was present).

DISPOSITION

The juvenile court's disposition order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J. We concur:

MOOR, J.

KIM, J.


Summaries of

In re D.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2020
No. B297966 (Cal. Ct. App. Jan. 31, 2020)
Case details for

In re D.B.

Case Details

Full title:In re D.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 31, 2020

Citations

No. B297966 (Cal. Ct. App. Jan. 31, 2020)