Opinion
B231102
10-03-2011
In re F.P., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.P., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK84753)
APPEAL from orders of the Superior Court of Los Angeles County. T. Saito, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
Defendant and appellant F.P. (Father) appeals from the juvenile court's jurisdiction and disposition orders regarding his children F.P. and B.P. He contends there was insufficient evidence to support jurisdiction under Welfare and Institutions Code section 300, subdivision (b). He further contends that the juvenile court erred in failing to make findings under section 361.2, subdivision (a), to determine whether the children should have been placed with him as a noncustodial parent.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
We affirm. Substantial evidence supported jurisdiction and any error in failing to reference the applicable statute at disposition was harmless in light of the evidence and the juvenile court's other findings.
FACTUAL AND PROCEDURAL BACKGROUND
Voluntary Family Maintenance and Reunification.
C.M., who was born in 2002 and is not Father's child, first came to the attention of the Los Angeles County Department of Children and Family Services (Department) in January 2005, as a result of the maternal grandmother's reports that N.M. (Mother) was alternately abusive and inattentive to him. Reports throughout 2005 and 2007 indicated that Mother constantly yelled at C.M., locked him in his room for long periods of time, left him alone while she slept for hours during the day, was generally inattentive to any of his needs, and hit and grabbed him. The maternal grandmother suspected that Mother was using drugs given her erratic behavior. By November 2007, Mother had moved in with her sister, who reported that Mother had a long history of drug abuse and domestic violence.
F.P., one of Father's children, was born in August 2008. In November 2008, Father was arrested for spousal battery. After drinking a 12-pack of beer, Mother and Father began to argue about the rent money; Father pushed Mother and hit her on the head several times in front of C.M. As part of a plea agreement, Father was convicted of disturbing the peace and placed on probation.
On September 29, 2009, the Department investigated a child abuse referral that Father was hitting Mother and had hit C.M. At that point, Father was in a random drug and alcohol testing program, and had been testing clean. He was also participating in a domestic violence program. He admitted to drinking and stated he wanted to stop. The family was accepted into a family preservation program; Mother accepted a voluntary family maintenance (VFM) contract, and Father accepted a voluntary family reunification (VFR) contract with the Department. As part of his VFR contract, Father agreed to the following services: Continue with his domestic violence program; attend fatherhood parenting classes; attending Alcoholic Anonymous (AA) meetings; enroll in an outpatient substance abuse program; participate in random drug testing; participate in individual counseling; and receive monitored visitation. B.P., also Father's child, was born in October 2009.
The October 20, 2010 detention report erroneously reports the date of the contract as September 2010.
In February 2010, in-home counselor Carmen T. reported that Mother told her Father was drinking alcohol on a daily basis, which had caused tension in the home. Mother and Father were arguing in front of the children and Father had pushed Mother. Father voluntarily moved from the family home at the end of February 2010. In April 2010, the Department received a referral about Mother's mental health. Mother, already receiving psychiatric services, reported that she was suffering from depression, hearing voices and having suicidal thoughts. She and the children moved in with her parents so they could assist her with the children.
Between March and September 2010, Father completed 52 domestic violence classes, enrolled and participated in individual therapy, had nine clean drug tests and one "no-show," and attended over 30 AA meetings. He did not attend an outpatient substance abuse program because he could not find one he could afford. He also continued to contact Mother and the children directly and texted insults to Mother. In June 2010, he arrived drunk at the maternal grandparents' home and tried to break into the garage where Mother and the children were living. After the police arrived, he signed an affidavit stating that he would stay away from Mother's home. Mother continued to receive mental health services, though she began missing appointments in August and September 2010. By the end of September 2010, many of Mother's services were terminated because of her nonattendance.
Detention.
On October 14, 2010, the Department responded to a referral alleging Mother's emotional and physical abuse of the children. C.M. stated that in the morning Mother did not want to help him with homework and she yelled at him and hit him in the arm because she was mad at him. He said Mother had not hurt him, and the social worker did not observe any marks or bruises on him. The maternal grandfather with whom Mother and the children lived had not seen the altercation, but stated that Mother slept a lot and left the children to care for themselves. He did not believe that Mother would improve anytime soon and was concerned that she was neglecting the children. A maternal aunt confirmed that while she did not believe Mother would harm the children, she neglected them because of her depression and mood swings. For example, Mother would leave B.P. in her crib all day while she slept in bed.
Carmen expressed similar concerns, stating that she was concerned that Mother was not taking her medication or complying with her VFM contract. She had observed Mother yelling at C.M. and calling him names, and exhibited no compassion when he began to cry. Carmen had contacted the police after C.M. told her about the altercation, and the police arrested Mother for outstanding traffic tickets and an outstanding arrest warrant for petty theft.
The same day, the Department received a call from the child abuse hotline that F.P. and B.P. had been abandoned at daycare. The daycare provider stated that the children were supposed to be picked up at 6:00 p.m., but no one had arrived until 9:00 p.m. She also expressed concern that F.P. and B.P. had been arriving at daycare barefoot and in dirty clothes and dirty diapers. When the social worker saw them, though, they appeared clean and had no marks or bruises. The maternal grandmother explained that the late pick-up was an inadvertent mistake on her part.
After the Department investigated the family and learned that Mother and Father had already received 10 months of services, it detained the children. The Department was unable to locate Father at the time of detention. But on October 18, 2010, Father voluntarily appeared at one of the Department's offices. He stated he had not seen Mother or the children since July 2010 and he had not attempted monitored visits with the children because he could not afford a monitor. He represented that he was not using drugs or alcohol, and was interested in resuming his AA classes. He was also interested in caring for F.P. and B.P.
On October 20, 2010, the Department filed a section 300 petition as to all children, alleging counts under subdivisions (a), (b), (g) and (j) on the basis of Mother's physical abuse of C.M. (counts a-1, b-1, j-1) Mother's and Father's violent altercations with each other (counts a-2, b-4), Mother's mental and emotional problems (count b-2), Father's alcohol abuse (count b-3), C.M.'s father's failure to provide the necessities of life (counts b-5, g-1) and Father's failure to provide the necessities of life (counts b-6, g-2). At the detention hearing the same day, the juvenile court declared Father to be F.P.'s and B.P.'s presumed father. The juvenile court found a prima facie case for detaining the children. It ordered monitored visitation for Mother and Father, and directed them to avail themselves of services including domestic violence classes, anger management, parenting, individual counseling and drug testing. It also ordered a mental health assessment for Mother. Father did not request that he be considered for placement.
Jurisdiction and Disposition.
The Department's December 13, 2010 jurisdiction/disposition report augmented the allegations concerning the September 2009 child abuse allegations, stating that Father also hit F.P. when he was an infant. According to this report, a section 300 petition was filed at that time, but the allegations of emotional abuse and general neglect against Mother were not sustained. The Department described Father's attempted drunken entry into Mother's home as occurring in July 2010 and further reported that he had hit Mother in March 2010. The most recent October 2010 incident was described consistently with previous reports.
When questioned about the allegations of the section 300 petition, Father denied that he saw Mother hit the children. Mother and Father both admitted arguing and pushing each other in front of the children. C.M. reported that Mother and Father would fight every day, and push, slap, hit and yell at each other in front of him and his siblings. He said that Father pushed Mother down to the ground and that several times she had landed on one of the children. He said that sometimes he or his siblings would get hurt when his parents fought. The maternal grandmother likewise confirmed that there had always been problems between Mother and Father.
With respect to allegations of alcohol abuse, Father stated that he drank socially, and during the summer would purchase a six-pack of beer to drink during the evening. After he was arrested in 1994 for driving under the influence of alcohol, he never drove while drunk again and was not an alcoholic. Nonetheless, Father attended 48 AA meetings between January and August 2010. Father reported that in January 2010 his brother died from alcohol poisoning. C.M. reported that Father drank all the time, and the maternal grandmother reported that most of the fights between Mother and Father occurred after Father had been drinking.
With respect to his own progress, Father stated that he had learned from his classes and counseling, and felt "empowered to make positive changes in his life and to regain custody of his children." He had been working consistently for approximately one and one-half months and was saving his money to rent a small apartment. Father expressed interest in having custody of his children F.P. and B.P. "He stated that he believes no one can take care of his children as well as he can. He stated that he is very concerned about the children's well being because they are not with family."
The Department recommended that all allegations be sustained with the exception of those relating to Father's failure to provide the necessities of life. It recognized that Father was partially in compliance with his case plan and recommended that he continue in individual counseling and enroll in parenting education and substance abuse programs. The Department recommended that Father receive six months of services and monitored visits with discretion to liberalize.
At the jurisdiction hearing, Mother pled no contest to an amended section 300 petition, in which the juvenile court struck counts a-1, a-2, b-6 and g-2, and sustained as amended counts b-1, b-2 and j-1. The amended counts provided that Mother used inappropriate discipline, rather than inflicted physical abuse, and eliminated certain allegations relating to Mother's mental health problems. The juvenile court also sustained counts b-5 and g-1 as to C.M.'s father. The juvenile court proceeded immediately to disposition for Mother, ordering the children suitably placed and directing Mother to attend programs for domestic violence counseling, parent education and individual counseling, and to undergo a mental health evaluation with follow-up treatment and medication.
Father argued there was insufficient evidence to sustain counts b-3 and b-4 alleged against him on the ground that he had actively been participating in his VFR case plan and there was no indication that the children were at a current risk from his behavior. The juvenile court continued adjudication and disposition for Father for one week. During that time, the Department submitted a supplemental report that addressed, among other issues, Father's difficulty in visiting the children due to his work schedule and the possibility of releasing the children to Father. Though acknowledging that Father had attended a domestic violence program, individual counseling and AA meetings, the Department remained concerned about Father's drinking. He admitted to drinking socially during the same time period he was attending AA meetings. Father also inconsistently admitted to one social worker that he was an alcoholic who needed help, while telling a different worker that he was only a social drinker. The Department recommended that counts b-3 and b-4 be sustained, writing: "There is some conflicting information, and perhaps, more time is necessary in assessing if the children will be safe in the care of the father. The voluntary case plan was, in part, focused on the father's alcohol abuse. According to the mother, the father's alcohol abuse led to the domestic violence between them."
With respect to disposition, the supplemental report indicated that Father was currently residing in a rented room at his brother's home, but that he did not plan to stay there much longer. He planned to rent a two-bedroom apartment and have his mother reside with him to help with childcare while he was at work. He expected that it would take him two to four weeks to find an apartment and have it ready for the children to be returned to him. The Department summarized that Father "seems to be stabilizing and seems eager to have his children back in his care."
The juvenile court sustained count b-3, amended to provide that Father had "an unresolved alcohol abuse issue" as opposed to a history of alcohol abuse, and count b-4 as pled. The juvenile court stated that ample evidence supported the counts, as the reports documented Father's long history of alcohol abuse and his drinking negatively affected the family's finances and precipitated incidents of domestic violence. It further stated that there appeared to be a future risk, given that Father had showed up drunk, trying to get into Mother's home as recently as June 2010. The juvenile court characterized Father as having unresolved alcohol abuse issues, stating: "It's commendable that the father is going to AA [meetings], but I believe that the AA's are just part of his recovery which has just begun. And based on the historical posture of this case, the court finds that alcohol abuse is still unresolved and poses a risk to the children until it is resolved."
Proceeding to disposition, the juvenile court made findings by clear and convincing evidence pursuant to section 361, subdivision (c), that a substantial danger existed to the children if they were returned home and there were no reasonable means to protect them without removal from the parents' physical custody. The juvenile court declared the children dependents of the court and ordered them suitably placed. Father received monitored visitation with the Department having discretion to liberalize, and was ordered to attend parent education, an alcohol program with random testing and individual counseling. The juvenile court indicated that the Department's report for the next February 2011 hearing would address Father's progress and explore whether his children could be released to him.
Father appealed.
DISCUSSION
Father challenges both jurisdiction and disposition, contending that substantial evidence did not support the juvenile's jurisdictional findings as to him and that the juvenile court failed to make an appropriate disposition finding under section 361.2, subdivision (a), for a noncustodial parent. We find no basis to disturb the juvenile court's orders.
I. Substantial Evidence Supported the Juvenile Court's Jurisdictional Findings.
Jurisdictional findings are reviewed under the substantial evidence standard. (In re E.B. (2010) 184 Cal.App.4th 568, 574.) Pursuant to this standard, we determine whether there is any substantial evidence, contradicted or uncontradicted, to support the juvenile court's determination. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.) "[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Jurisdiction is appropriate under section 300, subdivision (b), where there is substantial evidence that "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." Three elements must exist for a jurisdictional finding under section 300, subdivision (b): "'(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness.' [Citation.] 'The third element "effectively requires a showing that at the time of the jurisdiction hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur). [Citations.]"'" (In re J.O. (2009) 178 Cal.App.4th 139, 152; see also In re S.O. (2002) 103 Cal.App.4th 453, 461 ["'[P]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue"].)
At the outset, we observe that jurisdiction was proper on the basis of the sustained allegations against Mother. The purpose of the dependency proceeding is "to protect the child, rather than prosecute the parent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) For that reason, "a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citations.]" (Ibid.; accord, In re Maria R. (2010) 185 Cal.App.4th 48, 60; In re P.A. (2007) 155 Cal.App.4th 1197, 1212; In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) Mother pled no contest to allegations under section 300, subdivisions (b) and (j). As a result, "the court's exercise of jurisdiction over the child is appropriate" and Father's jurisdictional challenge may be deemed moot. (In re J.K. (2009) 174 Cal.App.4th 1426, 1431.) Nonetheless, we address whether substantial evidence supported the jurisdictional findings as to Father.
A. Allegations Relating to Father's Alcohol Abuse.
The juvenile court amended and sustained count b-3, which provided that Father "has an unresolved alcohol abuse issue, which renders the father incapable of providing regular care of the children. The father's alcohol abuse endangers the children's physical and emotional health and safety, placing the children at risk of physical and emotional harm and damage." An unresolved drug or alcohol abuse problem may impair an individual's ability to parent and thus afford a basis for the assertion of dependency jurisdiction. (See Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505.)
While we acknowledge the evidence showed that Father had taken steps to begin to resolve his alcohol abuse issue, substantial evidence showed that Father's alcohol abuse continued to place the children at risk. In November 2008, two years before adjudication, Father was arrested after he repeatedly hit Mother in front of C.M. after consuming a 12-pack of beer. Approximately one year later, in September 2009 when the family again came to the Department's attention as a result of Father's violent behavior, Father admitted that he was still drinking but wanted to stop. At that time, he was already in a random testing program and testing clean. After Father entered into the VFR contract and was still living with Mother, he continued to drink a lot and, according to Mother, would become "mean" when he drank and throw things at her. Carmen and the maternal grandmother confirmed that Father was drinking on a daily basis. Likewise, C.M. reported that whenever Father was home he was drinking.
Yet another year later, in late 2010, Mother reported that when Father "was sober, he would say he wasn't going to drink again, but he would drink." Even after Mother and Father were living apart, Father showed up drunk in June or July 2010 and attempted to break into Mother's home. Father alternately admitted to being an alcoholic and needing help on the one hand, and denied having an alcohol abuse problem on the other. He maintained he was a social drinker and continued to drink alcohol throughout the time period that he attended AA meetings. Moreover, he continued to drink even after his brother—whom Father identified as an alcoholic—died of alcohol poisoning.
Discussing the evaluation of risk based on an isolated incident of endangering conduct, the court in In re J.N. (2010) 181 Cal.App.4th 1010, 1025-1026, suggested that courts should consider circumstances including "evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim . . . ." Though Father's drinking and ensuing violent behavior occurred on more than one occasion, an examination of present circumstances showed that his drinking continued to pose a risk of harm. The evidence showed that Father was prone to violence when he drank. That he continued to drink even after attending AA meetings for several months revealed a lack of understanding of his past conduct. Moreover, although Father had randomly tested clean during periods where he admittedly continued to drink, he had not yet participated in any substance abuse treatment program and thus had not resolved his problematic conduct. (See § 300.2 ["The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child"].) The evidence showed that his unresolved alcohol abuse problem continued to pose a risk to the children.
We find no merit to Father's argument that his past conduct was insufficient to demonstrate any current risk to the children. (E.g., In re J.N., supra, 181 Cal.App.4th at p. 1025 ["'[P]revious acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur'"].) The juvenile court expressly evaluated the "historical posture" of the case to conclude that Father's alcohol abuse remained an unresolved issue and posed a current risk to the children. The evidence showed that Father's alcohol consumption had resulted in violent confrontations over the years—the most recent incident occurring less than six months before adjudication when Father attempted to break into Mother's home while he was drunk. Father admitted to continuing to drink after that incident. Thus, the juvenile court relied on more than speculation to find that Father's drinking continued to pose a risk to the children until it was resolved. (See In re S.O., supra, 103 Cal.App.4th at p. 462 [present risk of harm found on the basis of conduct occurring one month and six months before adjudication].)
We likewise reject Father's argument that the Department failed to meet its burden to show that his drinking posed any risk of physical harm to the children. (See In re James R. (2009) 176 Cal.App.4th 129, 137 ["The mere possibility of alcohol abuse, coupled with the absence of causation, is insufficient to support a finding the minors are at risk of harm within the meaning of section 300, subdivision (b)"].) Here, the evidence showed that Father's drinking was inextricably intertwined with his violent behavior. Again, even after Father had moved out of the family home, he tried to break into the house while drunk, causing Mother to call the police because she was afraid for herself and for the children. These circumstances are unlike those in In re David M. (2005) 134 Cal.App.4th 822, 829-830, where the court reversed a jurisdictional finding because there was no evidence showing that Mother's isolated instance of drug use posed any risk of harm to her child or in any way impacted her ability to parent. Substantial evidence supported the juvenile court's sustaining count b-3.
B. Allegations Relating to Domestic Violence.
The juvenile court also sustained count b-4, which alleged that Mother and Father "have a history of engaging in violent altercations in which [Father] pushed the mother. Such violent altercations on the part of [Father] against the mother endangers the child's physical and emotional health and safety and places the child at risk of physical and emotional harm damage [sic] and danger." As aptly noted in In re S.O., supra, 103 Cal.App.4th at pages 460 to 461, "'domestic violence in the same household where children are living is neglect; it is a failure to protect [them] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.' [Citation.]"
Although count b-4 refers to a "child" singularly, at the adjudication hearing the juvenile court declared that F.P. and B.P. were children described by section 300, subdivision (b).
The evidence here showed that Mother and Father engaged in multiple violent altercations in front of the children, though C.M. was the only child old enough to describe the incidents. As early as November 2008, C.M. told the police that he had seen Father hit Mother on five or six occasions in the past. When Mother and Father lived together, they would push and shove each other. Father admitted that the children were present when he and Mother argued and fought. Though he believed he learned some things from his domestic violence classes, Father indicated that it was difficult for him to get along with Mother because of her mood swings and angry outbursts.
For the December 2010 jurisdiction/disposition report, C.M. described his experiences with his parents' domestic violence, telling the social worker that Mother and Father "would push, slap, hit, and yell at each other a lot. He stated that sometimes they would get home from the store and would fight over money or 'I don't know about what.' He stated, 'they would fight every day and I would tell them to stop, but they would not listen to me.' He stated that they would fight with him, his brother and his sister in the room and many times his brother and sister would cry when they started fighting. [C.M.] stated that there were several incidents in which the father would push the mother, mother would fall and land on him, or his brother or sister. He stated that several times, they would also get hurt while the mother and father were fighting."
Evidence of Mother's and Father's repeated acts of domestic violence in front of the children supported jurisdiction under section 300, subdivision (b). We are guided by In re Heather A., supra, 52 Cal.App.4th 183. There, the appellate court upheld jurisdictional findings as to a father under section 300, subdivision (b) where the evidence showed that acts of domestic violence occurred in front of the children and when the children were elsewhere in the home, which put the children in physical danger. "[F]or example, [the children] could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg, or by [their stepmother] falling [on] them." (In re Heather A., supra, at p. 194.) The court concluded that domestic violence in the same household where a child resides constitutes neglect. (Ibid.) "[I]t is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (Ibid.; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [observing that "'[b]oth common sense and expert opinion' . . . 'indicate spousal abuse is detrimental to children'"].)
Father argues that the Department failed to meet its burden to show a continuing risk of harm from domestic violence, given that there was no evidence that he had even contacted Mother since June or July 2010. While certainly the violence between Mother and Father diminished after Father moved from the family home, there was substantial evidence of a continuing risk given the level of recurring violence that the children had witnessed and the fact that Father had not resolved his alcohol abuse, which was a significant factor precipitating his violent behavior. Moreover, even after Father had attended domestic violence classes and individual counseling, he continued to harass Mother, texting insults to her, hitting her at least once and attempting to break into her home. This evidence was unlike that in In re Daisy H. (2011) 192 Cal.App.4th 713, 717, where the mother and father engaged in a single altercation seven years before the dependency petition was filed, and the children did not witness the altercation or have any fear of their father. As the In re Daisy H. court recognized, the parents' domestic violence may support the exercise of jurisdiction under section 300, subdivision (b) where "there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm. [Citations.]" (In re Daisy H., supra, at p. 717.)
II. The Juvenile Court Properly Ordered the Children Suitably Placed.
Father argues that the juvenile court's disposition order must be reversed because the court improperly proceeded under section 361, subdivision (c) to order the children removed. He contends that because he was a noncustodial parent, the juvenile court should have proceeded under section 361.2, subdivision (a), to consider him for custody. While Father's position is correct in the abstract, he forfeited the issue by failing to raise it below, and, in any event, any error was harmless.
At the disposition hearing, the juvenile court found by clear and convincing evidence that there was a substantial danger to the physical health, safety, and physical and emotional well-being of the children if they were returned home, and that there were no reasonable means to protect them absent removal from Mother's and Father's physical custody. The juvenile court declared the children dependents of the court pursuant to section 300, subdivisions (b), (g) and (j), and ordered them suitably placed pursuant to a disposition case plan that Father had signed.
The juvenile court also ordered Father to attend a Department-approved parent education program, an alcohol program with random testing and individual counseling to address case issues, including domestic violence—none of which father has challenged on appeal.
Father contends that the juvenile court erred in failing to evaluate him for custody pursuant to section 361.2, subdivision (a), which provides: "When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child."
We reject the Department's contention that section 361.2, subdivision (a) did not apply to Father because he was living with Mother when some of the events that led to jurisdiction occurred. The Department's own reports established that Father moved from the family home in January or February 2010, well before the filing of the October 2010 petition that brought the children within the juvenile court's jurisdiction.
Preliminarily, we observe that Father did not object to the juvenile court's disposition findings on this basis or any other basis. Instead, he signed the disposition case plan that directed F.P. and B.P. be suitably placed. Father's signature on the case plan and his failure to object to disposition amounted to a forfeiture of his right to challenge the placement on appeal. (In re Richard K. (1994) 25 Cal.App.4th 580, 590 ["by submitting on the recommendation without introducing any evidence or offering any argument, the parent waived her right to contest the juvenile court's disposition since it coincided with the social worker's recommendation"]; accord, In re Christopher B. (1996) 43 Cal.App.4th 551, 558 ["In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal"].) Nonetheless, because there is authority suggesting that a request for custody under section 361.2 need not be made at the disposition hearing where there is some indication in the Department's reports that a noncustodial parent desires custody, we address Father's claim on the merits. (See R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271.)
"Section 361.2 governs placement when the child has a parent 'with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300.' [Citation.] It directs that before the child may be placed in out-of-home care, the juvenile court must first consider placing the child with the noncustodial parent, if that parent requests custody." (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55, italics & fn. omitted.) "If [the noncustodial] parent requests custody, the court 'shall place' the child with the parent unless 'it finds that placement with that parent would be detrimental to the minor.' [Citation.]" (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1821.) A juvenile court's determination under section 361.2, subdivision (a) that a child should not be placed with a noncustodial parent requires a finding of detriment by clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Moreover, section 361.2, subdivision (c) requires that the juvenile court make findings, either in writing or orally on the record, as to the basis for its determination under section 361.2, subdivision (a). (In re Isayah C. (2004) 118 Cal.App.4th 684, 701.)
Though the statute itself is directed to a "noncustodial" parent, some courts have construed the statute to apply only to a nonoffending, noncustodial parent. (E.g., In re M.C. (2011) 195 Cal.App.4th 197, 224 ["Under . . . section 361.2, placement of the dependent child with a nonoffending, noncustodial parent must be the juvenile court's first priority if that parent requests the placement"]; In re Karla C. (2010) 186 Cal.App.4th 1236, 1245 [under section 361.2, "[i]f there is no showing of detriment, the court must order the [Department] to temporarily place the child with the nonoffending noncustodial parent"]; but see In re V.F. (2007) 157 Cal.App.4th 962, 966 ["Unlike section 361.5, section 361.2 does not distinguish between an offending and nonoffending parent"].)
Father maintains that the juvenile court's failure to make specific findings under section 361.2, subdivision (a) was reversible error, while the Department asserts that we may imply such findings from the record. Father correctly observes that some appellate courts have refused to imply findings when the juvenile court failed to properly consider placement under section 361.2. In In re Marquis D., supra, 38 Cal.App.4th 1813, the nonoffending, noncustodial father appealed from a disposition order made pursuant to section 361, subdivision (b)(1), denying him placement of his six children. (In re Marquis D., supra, at p. 1820.) Though conceding that the juvenile court improperly failed to make any finding of detriment under section 361.2, subdivision (a), the social services department contended that such a finding could be implied and was supported by substantial evidence. (In re Marquis D., supra, at p. 1821.) The appellate court disagreed, explaining it could not determine from the record whether the juvenile court considered that placing the children with the father would be detrimental to them within the meaning of section 361.2, subdivision (a), and it questioned whether the evidence supported a finding of detriment. (In re Marquis D., supra, at pp. 1824-1827; accord, In re V.F., supra, 157 Cal.App.4th at pp. 969-970, 973-974 [declining to imply findings where juvenile court did not consider whether placement with an incarcerated, noncustodial father would be detrimental to the children within the meaning of § 361.2, subd. (a)].)
Here, however, the juvenile court expressly explored whether F.P.'s and B.P.'s placement with Father would be detrimental to them. A significant section of the Department's December 22, 2010 supplemental report was devoted to the topic entitled "Regarding the release of the P[.] children to the P[.] father." The report explored Father's previous partial compliance with his VFR contract; his remaining issues with alcohol abuse and domestic violence; his current living situation, including his plans to move into his own apartment to accommodate the children and his mother; and his job situation. At the adjudication/disposition hearing, the juvenile court explained in detail the reasons why Father continued to pose a risk to the children, acknowledging that Father was seeking the release of the children to him. The juvenile court thereafter found on the record that a substantial danger existed to the children if permitted to reside with either parent. The juvenile court's findings amounted to a finding that it would be detrimental to place the children with Father. (See In re P.A., supra, 155 Cal.App.4th at p. 1212 [required findings of detriment made by the necessary standard where the juvenile court found at the disposition hearing "by 'clear and convincing evidence there exist[ed] a substantial danger to the children and [there was] no reasonable means to protect them without removal from the parents' custody'"].)
Moreover, unlike the records in In re Marquis D. and In re V.F., substantial evidence supports the finding that placement of the children with Father would be detrimental to them. (See In re Marquis D., supra, 38 Cal.App.4th at p. 1825 ["[W]here the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear"].) In determining whether placement with a noncustodial parent would be detrimental under section 361.2, subdivision (a), the juvenile court has "broad discretion to evaluate not only the child's physical safety but also his or her emotional well-being. In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child." (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.) At the time of disposition, Father was still drinking socially, even though he had admitted to being an alcoholic. He did not have a stable living situation, nor did he have any means of caring for the children while he was at work. Indeed, while the Department acknowledged that Father appeared to be stabilizing, there remained multiple outstanding issues for Father to address before it would not be detrimental to the children to be placed with him.
Here, the juvenile court fully considered and addressed detriment to the children within the meaning of section 361.2, subdivision (a). On this record, any error in failing to specify findings under that particular provision was harmless.
DISPOSITION
The jurisdiction and disposition orders as to Father are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, J. We concur:
BOREN, P. J.
CHAVEZ, J.