Opinion
B230185
09-27-2011
In re GEORGE R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JORGE R., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK83893)
APPEAL from orders of the Superior Court of Los Angeles County, Sherri Sobel, Juvenile Court Referee. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
Jorge R. (father) appeals from juvenile court orders declaring his children dependents of the juvenile court and removing them from his custody. The children's mother is not involved in this appeal. Father contends that substantial evidence does not support the allegation sustained against him; the court erred in ordering the children removed from his custody because he was not the custodial parent; the court abused its discretion in ordering him to participate in counseling and to cease contacting mother; and the court failed to make the findings required by the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1912(a)). We disagree and affirm.
STATEMENT OF FACTS AND OF THE CASE
I. Detention
Father and Ana Z. (mother) are the parents of George R. (born June 1997), Anita R. (born Apr. 2001), Emiliano R. (born Aug. 2005), and Joel R. (born Dec. 2006).
Mother has a fifth child, A.Z., born in July 2010. Father is not A.Z.'s father, and thus she is not the subject of this appeal.
The family came to the attention of the Department of Children and Family Services (DCFS) on August 9, 2010, when an anonymous caller reported general neglect of the children. A children's social worker (CSW) visited the family home on August 9, 2010, and reported that it was very dirty, the children were not enrolled in school, and George, then 13 years old, could not read or write. Mother admitted having taken the family to Mexico in 2008 to avoid having the children removed from her care.
The family was the subject of six prior referrals for neglect, three of which were substantiated. The family received voluntary family maintenance services from April to November 2008. In 2008, DCFS had decided to take the children into protective custody, but before it did so, mother fled to Mexico with the children.
Mother reported that father was incarcerated. He has an extensive criminal history, including convictions in 2003 for possession of a stolen vehicle, in 2005 for vehicle theft, in 2006 for giving false information to a peace officer, and in 2009 for owning a "chop shop." On August 5, 2009, father was sentenced to three years in prison.
A CSW made an unannounced visit on August 17, 2010, and observed that the home was dirty and cluttered and the front porch was littered with trash. Anita had nits in her hair and was dirty. Emiliano was also dirty. Mother said that she intended to enroll the children in school the next day.
On August 25, 2010, DCFS advised mother that after reviewing the family's history, it had decided to file a petition and bring the family under court supervision. On September 1, 2010, DCFS filed a detention report, requesting that the children be detained with their mother and that the family be ordered to participate in family maintenance services.
II. Petition
DCFS filed a juvenile dependency petition on September 2, 2010. It alleged that the home in which George, Anita, Emiliano, and Joel lived with mother was filthy and unsanitary, prior remedial services had failed to resolve the family's problems, and the filthy and unsanitary home endangered the children's physical and emotional health. (Welf. & Inst. Code, § 300, subd. (b).) It further alleged that father failed to provide the children with the necessities of life, including food, clothing, shelter, and medical treatment, endangering the children's physical and emotional health and placing them at risk of physical and emotional harm and damage. (§ 300, subd. (g).)
All further statutory references are to the Welfare and Institutions Code.
The juvenile court held a hearing on September 2, 2010. The court found a prima facie case that the children were within the court's jurisdiction pursuant to section 300, subdivisions (b) and (g), and it ordered the children placed with mother. It ordered homemaking services for mother, an educational assessment for the three older children, a multidisciplinary assessment of the children, a regional center referral for George, and a home visit by a public health nurse.
III. Jurisdiction/Disposition Hearing
DCFS filed a jurisdiction/disposition report on September 30, 2010. It stated that father had been located in prison in Lancaster and mother had been arrested on September 19, 2010, after being stopped at the Tijuana border. The children were reported to be safe in the care of their maternal aunt and grandmother. The report further stated as follows.
Father told the CSW that he and mother had separated four years earlier. He had been in custody since July 2009 and expected to be released in December 2010. After his separation from mother, he continued to see the children every day. "Sometimes [the children] were clean but sometimes they were a little dirty." Father did not give mother money, but he bought the children shoes, clothes, and food. He said that he would be willing to have the children placed with mother or with him after he is released from custody.
The maternal aunt told the CSW that father rarely saw the children and never provided for them. She said that mother is extremely afraid of father: "She wants to face him but just with his eyes he can scare her. She's scared of him doing something if she faces him."
Mother told an assessor that she had been involved with father for 14 years, since she was 12 years old and he was 17 years old. She said that father abused her emotionally, physically, and sexually, including hitting her when she was pregnant. She said she tried to get a restraining order against father, but he followed her to court. Mother said that she does not receive support from father and she has never worked. Her sole source of income is public assistance.
Mother said that father has visited the children once or twice since their separation. Once, father put sugar in the gas tank of her car, causing it to catch fire. She said that father threatened to kill her and the children if she left him. She is very fearful of father.
The CSW reported that father has two other children with another woman. Those children were under juvenile court jurisdiction pursuant to a petition alleging that father engaged in domestic violence in the children's presence and disciplined the children by locking them in a closet. The status review report indicated that father had been ordered to participate in domestic violence counseling, parent education, and individual counseling, but he had made no progress and said he was not interested in reunifying with his children. The court terminated jurisdiction in that case in February 2010 with a family law order giving sole legal and physical custody of the two children to their mother.
The court held a jurisdiction and disposition hearing on November 4, 2010. Mother was present and represented by counsel; father did not appear but counsel appeared on his behalf. Father's counsel argued that DCFS had not met its burden of proof as to allegations against father under section 300, subdivisions (b) and (g) because he bought the children shoes, clothes, and school supplies and the children were well cared for by mother.
The court sustained the allegations of paragraphs (b)(1) and (g)(1) of the petition, as amended. Paragraph (b)(1) alleged: "On 8/17/2010, and on prior occasions, the children['s] home was found to be in a filthy and unsanitary condition including dirty diapers and trash on the front porch of the home. The floor of the home was dirty. The children Anita and Emiliano were dirty. Prior remedial services failed to resolve the family problems in that the children's home continues to be in a filthy and unsanitary condition. Such a filthy and unsanitary home environment established for the children by the children's mother, Ana [Z.], endangers the children's physical and emotional health, safety and well being and places the children at risk of physical and emotional harm and damage." Paragraph (g)(1) alleged: "The children, George [R.], Anita [R.], Emiliano [R.] and Joel R.['s] father, Jorge [R.], failed to provide the children with the necessities of life including food, clothing, shelter and medical treatment. Such failure to provide for the children on the part of the father endangers the children's physical and emotional health, safety and well being and places the children at risk of physical and emotional harm and damage."
The court ordered the children placed with mother. Father was granted monitored visitation with the children once he is released from custody but was ordered to stay away from mother and not to contact her by phone. He also was ordered to participate in individual counseling. The court ordered that mother receive family maintenance services, including assistance with either schooling or job skills, and the children receive individual counseling.
Father filed a timely appeal of the court's November 4, 2010 order.
DISCUSSION
I. The Juvenile Court Properly Exercised Jurisdiction Over the Children
Father concedes that mother's actions justify the juvenile court's exercise of jurisdiction over the children pursuant to section 300, subdivision (b). He urges, however, that the court erred in finding that jurisdiction was also proper pursuant to section 300, subdivision (g), because "substantial evidence [did] not support the requisite findings that the children were left without any provision for support or that their incarcerated father was unable to arrange for their care as of the hearing." Thus, he asks that we reverse the court's finding on count (g)(1) of the petition.
Section 300, subdivision (b) provides that a child is within the jurisdiction of the juvenile court if he or she "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 the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, 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."
Section 300, subdivision (g) provides that a child is within the jurisdiction of the juvenile court if he or she "has been left without any provision for support; . . . the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful."
Even if we were to agree with father that the finding against him was not supported by substantial evidence, that conclusion "profits him nothing because, '[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)" (In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6.) Thus, because mother's conduct concededly supported the exercise of jurisdiction, we need not reach father's jurisdictional claim. (See also In re Alexis H. (2005) 132 Cal.App.4th 11, 16 ["Appellant contends there was insufficient evidence that his behavior put the children at risk. His argument focuses on whether he did anything that endangered the children . . . . His focus ignores, however, that [mother's] conduct that endangered the children—which she admitted under the mediated settlement—was enough to establish jurisdiction"]; In re James C. (2002) 104 Cal.App.4th 470, 482 ["[t]he court could declare jurisdiction over the children based on the actions of the mother alone"]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 [same].)
Father contends that such a result prejudices him because the findings against him "will have far-reaching consequences for him, impacting father's status as an offending versus a non-offending parent, his custody rights over the children, his case plan, and the nature of the relationship he'll be allowed to have with his children." This contention misapprehends the purpose of juvenile court dependency jurisdiction. "'The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. (§ 300.2.)' (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) . . . [Thus], the focus of the system is on the child, not the parents." (D.M v. Superior Court (2009) 173 Cal.App.4th 1117, 1129.) We therefore decline to reach father's jurisdictional claim.
We decline to follow In re Anthony G. (2011) 194 Cal.App.4th 1060, cited by father. That decision is contrary to the weight of appellate authority and, by its language, appears limited to the facts of the case.
II. Father Forfeited His Contention That the Juvenile Court Erred by Ordering the Children Removed From Him
Father contends that the juvenile court erred by ordering the children removed from his custody pursuant to section 360, subdivision (c) because he was not the custodial parent. Further, he says, the error is prejudicial because "if the court does remove the children from their mother's custody in the future, it ha[s] already predetermined that the children should not be placed with their father by way of its earlier removal order from the father."
We agree with DCFS that father has forfeited this contention by failing to raise it in the juvenile court. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.]The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Appellate courts have discretion to consider forfeited claims in dependency cases, but such discretion "should be exercised rarely and only in cases presenting an important legal issue." (Ibid.)
"Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a 'waiver,' the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim. . . ."
In the present case, father's counsel did not object to the juvenile court's order purporting to remove the children from father's custody; thus, the claim is forfeited. Further, because father's claim of error does not raise an important legal issue, we decline to exercise our discretion to consider the forfeited claim on the merits. In any event, any error does not prejudice father. Notwithstanding the juvenile court's finding that placing the children with father would endanger their physical or emotional well-being, the court will necessarily revisit this determination in the future should the children need to be placed away from mother.
III. The Court Acted Well Within Its Discretion When It Ordered Father to Participate in Counseling and to Stay Away From Mother
Father contends that, because DCFS had not pled or proven domestic violence, the juvenile court abused its discretion when it ordered him to participate in individual counseling and to stay away from mother. We disagree.
"At the dispositional hearing, the juvenile court must order child welfare services for the minor and the minor's parents to facilitate reunification of the family. (§ 361.5, subd. (a); Cal. Rules of Court, rule 1456(f)(1).) The court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accord with this discretion. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104; In re Eric B. (1987) 189 Cal.App.3d 996, 1005.) We cannot reverse the court's determination in this regard absent a clear abuse of discretion. (Ibid.)" (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
"'"[A] reunification plan formulated to correct certain parental deficiencies need not necessarily address other types of conduct, equally deleterious to the well-being of a child, but which had not arisen at the time the original plan was formulated."' [Citation.] However, when the court is aware of other deficiencies that impede the parent's ability to reunify with his child, the court may address them in the reunification plan." (In re Christopher H., supra, 50 Cal.App.4th at p. 1008 [although court found unproven allegation that father's alcohol problems affected his ability to care for child, juvenile court was well within its discretion in requiring random drug and alcohol testing where record demonstrated father's substance abuse problem].)
In the present case, there was substantial evidence in the record of father's domestic violence against both mother and his current girlfriend. Because such violence is an obvious barrier to reunification, the juvenile court did not err in ordering father to stay away from mother and to participate in individual counseling.
IV. The Juvenile Court's Failure to Make an ICWA Inquiry Does Not Require Remand
Father contends that there is no evidence that the court or DCFS inquired whether he had Indian heritage before it found that ICWA did not apply. He urges, therefore, that the case should be remanded to the juvenile court for an appropriate ICWA inquiry.
We do not agree. "By its own terms, [ICWA] requires notice only when child welfare authorities seek permanent foster care or termination of parental rights; it does not require notice anytime a child of possible or actual Native American descent is involved in a dependency proceeding. The Act states, 'In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe . . . .' (25 U.S.C. § 1912(a); see also 25 C.F.R. § 23.11 (2005) [notice requirements when foster placement or termination of parental rights sought].)" (In re Alexis H., supra, 132 Cal.App.4th at p. 14.) Thus, "[w]hen authorities remove a child of Native American descent from his home, the act promotes foster care or adoption by a Native American family in the hope of preserving tribal culture. If, however, authorities do not move the child to another family, the purpose does not come into play." (Id. at p. 15, italics added [no error in failing to make ICWA inquiry where children were not removed from mother's home].) Because in the present case the children were placed with mother, ICWA is not implicated.
Moreover, we note that father does not contend on appeal that he is of Native American descent; rather, he suggests only that "[t]his court should not speculate about what father's response would be upon the required inquiry." We are certain that were father of Native American descent, he would so inform us; because he has not done so, we are confident that any failure of inquiry by the juvenile court was harmless error.
DISPOSITION
The juvenile court's findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P. J.
WILLHITE, J.