Opinion
E077033
03-17-2022
In re Y.M. et al., Persons Coming Under the Juvenile Court Law. v. V.B., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Nicole Williams and Richard D. Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore and Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J287073, J287074, J287075 & J287076. Steven A. Mapes, Judge. Affirmed in part; reversed in part.
Nicole Williams and Richard D. Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore and Tom Bunton, County Counsel, and David Guardado, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MCKINSTER ACTING P. J.
The juvenile court found true allegations that Y.M. et al. (the children) were at substantial risk of serious physical harm due to defendant and appellant, V.B. (mother's), inability to protect the children. The court granted mother reunification services.
The court also found true the same allegations with respect to father 1, who is not a party to this appeal.
On appeal, mother contends insufficient evidence supports the juvenile court's jurisdictional findings with respect to her. San Bernardino County Children and Family Services (the department) maintains mother's challenges to the sufficiency of the evidence to support the juvenile court's jurisdictional findings are nonjusticiable because: (1) she both failed to object to and agreed to the court's dispositional order; and (2) the juvenile court's findings as to the fathers would be sufficient for the court to take jurisdiction over the children regardless. We issued a tentative opinion in which we agreed with mother and proposed to reverse the jurisdictional findings against her.
After oral argument, we granted mother's request to vacate submission of the case and allow supplemental briefing. We invited the parties to brief the following issues: (1) whether mother's agreement at mediation to the disposition was effective without affirmative evidence of her counsel's approval; (2) whether mother's agreement to reunification services was implicitly conditional on the sustaining of the jurisdictional findings against her; (3) whether mother's agreement to family reunification services was an agreement to the removal of the children or merely participation in services; (4) whether the record contains sufficient evidence as to the jurisdictional allegations as to child 1; (5) whether mother has standing to challenge the sufficiency of the evidence as to the jurisdictional allegations against child 1's father (father 2); and (6) whether the record contains sufficient evidence to support the court's removal of the children from mother.
Father 2 is not a party to the appeal. Children 2, 3, and 4 have another father (father 1) who is likewise not a party to the appeal.
In her supplemental brief, mother contends that (1) the mediation agreement was ineffective and unenforceable because mother's attorney never approved it; (2) insufficient evidence supported the jurisdictional allegations regarding child 1, as to mother; and (3) insufficient evidence supported the order removing the children from mother's custody.
Mother does not respond to issues 2, 3, or 5 in our order for supplemental briefing; mother also does not contest the single jurisdictional allegation against father 2 under issue 4 of our order for supplemental briefing. Mother requests that we issue a published opinion compelling the juvenile court to change its mediation practices; the department opposes the request. We decline the invitation.
The department responds that (1) mother's counsel's failure to place an objection to the removal of the children at the dispositional hearing constitutes an implicit approval of the mediated agreement; (2) mother's agreement to participate in reunification services was not conditioned on the court sustaining allegations against her; (3) mother's agreement to reunification services in the mediation agreement expressly included the removal of the children; (4) mother does have standing to challenge the jurisdictional allegation against father 2, but; (5) mother forfeited any challenge to the jurisdictional allegation against father 2 by failing to object below or to challenge it on appeal; regardless, (6) substantial evidence supports the true finding on the allegation as to father 2; and (7) substantial evidence supports the removal of the children from mother.
We hold that mother's assent to the terms of the mediation agreement invited any error; mother's counsel below tacitly approved the mediation agreement by declining to object to the dispositional orders; and mother likewise forfeited any objection to the dispositional orders by failing to object below. As in our tentative opinion, we hold that mother has preserved her right to challenge the court's jurisdictional findings by contesting them below. We similarly hold that mother's challenge to the court's jurisdictional findings is justiciable. Finally, we hold that insufficient evidence supports the allegations pertaining to mother. We, therefore, reverse the jurisdictional findings pertaining to mother's conduct. In all other respects, the judgment is affirmed.
We decline to address the issues we raised in our order for supplemental briefing regarding whether mother could challenge the allegation against father 2 and whether sufficient evidence supported that finding; mother's failure to respond to the issues forfeits them. (People v. Hovarter (2008) 44 Cal.4th 983, 1029.)
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2020, mother took the children to the police station after child 2 (born in 2017), child 3 (born in 2018), and child 4 (born in 2019) (the girls) returned home from a visit with father 1. Mother reported that child 3 "tried to French kiss [mother] by opening [mother's] mouth and putting her tongue in mother's mouth; mother told [child 3] to stop and asked her where she learned it. A few minutes later, mother said [child 2] did the same thing to mother and mother told her to stop and asked her where she learned it; [child 2] said, '[father 1] taught me that.'" Mother reported that in April 2020, child 2 and child 3 tried to grab mother's crotch.
Mother later said this behavior occurred in August 2020.
On October 20, 2020, mother e-mailed the social worker pictures of the girls with bruises and scratches, which mother said occurred during a visit with father 1. Father 1 said the girls had come to him with the bruises. He later texted purported pictures of the girls, which did not show their faces, with what appeared to be bug bites and bruises.
On October 22, 2020, mother brought the children to the child assessment center (CAC) for an examination by Dr. Egge with respect to purported sexual abuse of the girls by father 1. Dr. Egge said that it was normal for toddlers to stick their tongues in someone's mouth. Dr. Egge said that child 2 had a vaginal discharge that Dr. Egge said could be due to child 2's obesity and poor hygiene. Dr. Egge opined as to the children's examinations, "'It's a low likelihood of sexual abuse. Normal exam. No sign of trauma.'"
Dr. Egge did observe suspicious bruises all over child 2's body, including a cluster of bruises on her lower abdomen, a cluster of bruises on her right forearm, a cluster of bruises on her left lower back, and bruises on her left lower thigh. Dr. Egge suspected that mother's long nails may have caused the injuries. Dr. Egge found the injuries "'suspicious for physical abuse due to location and cluster.'"
Father 1 reported that mother left the children with a babysitter during the day when mother worked. He said that when he lived with mother, child 2 and child 3 would physically fight with one another over toys. Mother also reported that child 2 had punched child 3, and she had been concerned about the girls' aggressive behavior ever since mother and father 1 had separated. Child 1 (born in 2007), who had a different father (father 2) than the girls, said that when father 1 lived with the family, child 1 saw father 1 "smack the girls on their butt with his hand and pinch their arms, when they misbehaved. He also shared [that father 1] picked him up by his arm and leg from his bed and threw him to the end of the bed, when [child 1] didn't readily g[i]ve [father 1's] phone back to him."
The department had received a previous referral in April 2020, which had been investigated and closed as inconclusive. That referral related to father 1's arrest for willful injury to a child (Pen. Code, § 273a); a court issued a temporary restraining order prohibiting father 1 from any contact with mother and the children. The family law court eventually denied mother's request for a permanent restraining order, granted mother and father 1 joint legal custody over the girls, and granted mother temporary physical custody over the girls.
On October 26, 2020, the department filed juvenile dependency petitions alleging child 2 had suffered multiple serious marks and bruises suspicious for physical abuse while in the care of mother (Welf. & Inst. Code, § 300, subd. (a), allegation A-1); child 2 had suffered multiple serious marks and bruises suspicious for physical abuse while in the care of father 1 (§ 300, subd. (a), allegation A-3); the children's sibling, child 2, had suffered multiple serious marks and bruises suspicious for physical abuse while in the care of mother, and the children were at risk of suffering similar abuse (§ 300, subd. (b), allegation B-3); and the children's sibling, child 2, had suffered multiple serious marks and bruises suspicious for physical abuse while in the care of father 1, and the children were at risk of suffering similar abuse (§ 300, subd. (b), allegation B-4). As to children 1, 3, and 4, the department additionally alleged that child 2 had been physically abused, placing children 1, 3, and 4 at risk of similar abuse (§ 300, subd. (j), allegation J-5). Finally, as to child 1, the department alleged the current whereabouts of father 2 were unknown, and he had shown no provision for child 1's support (§ 300, subd. (g), allegation G-4). On October 27, 2020, the court detained the children and placed them with the maternal uncle and aunt.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The department did not allege an A-2 allegation with respect to child 1 because he had not been visiting father 1, who was not his biological father.
The failure to protect allegations with respect to child 1 were alleged as B-2 and B-3. The B-3 allegation, with respect to child 1, alleged failure to protect by father 2.
The department actually alleged the children were only subject to the possibility of abuse; however, a possibility of abuse does not support a section 300, subdivision (j), allegation. Rather, a subdivision (j) allegation must allege that a "child's sibling has been abused or neglected . . . ." (Ibid.) Since the department did not allege neglect, we will assume they meant to allege actual abuse.
In the jurisdiction and disposition report filed November 12, 2020, the social worker recommended the court sustain the allegations in the petitions, remove the children from mother and father 1's custody, and grant mother and father 1 reunification services. Mother continued to state that she had no idea from where the girls' bruising derived. Mother said that the large bruise on child 2's left leg was a bug bite that father 1 had squeezed, and it became swollen and red. She reported that she and father 1 separated after he was arrested for throwing child 1.
The social worker recommended the court dismiss the G-4 allegation in child 1's petition.
Father 1 conceded he had been arrested for cruelty to a child for "allegedly" throwing child 1. Father 1 reported that he never hit the girls. Father 1 alleged that child 2 told him child 1 was "mean and that he punched her in the stomach." Child 1 said the girls pinched each other when they would argue and father 1 would "smack" the girls "on the bottom with his hand." Child 1 denied any sexual abuse. Child 1 said child 2 would sometimes report that father 1 hit her "sister." The girls would come home from visits with father 1 with bruises on their legs and arms.
Dr. Egge's forensic medical report as to child 4 indicated the "bruises are nonspecific-may be the result of abuse or accident." As to child 2, Dr. Egge noted that the "findings today [are] suspicious for physical abuse . . . . Further investigation [is] warranted." As to child 3, Dr. Egge noted, "Some of her bruises . . . may be suspicious for physical abuse. Further info need."
The social worker opined: "The prognosis for reunification in this case . . . is guarded. [Mother and father 1] deny using any corporal punishment and accuse each other for the marks and bruises on their children. The parents need to stop blaming each other and focus on their children's safety and well-being when they are in their care. . . . [¶] . . . [¶] Based on the above assessment, it would be detrimental to place the children . . . with mother."
On November 17, 2020, the court referred the matter to mediation. The mediation report dated December 8, 2020, reflected a "partial agreement"; according to the report, mother and father 1 contested all the allegations but agreed to the removal of the children and reunification services as to the disposition. Neither parent appears to have been represented at mediation as the report lists only the parents and a representative of the department as those actively participating. The report also reflects, "All agreements submitted are reviewed and must be approved by the attorneys before [being] submitted to the Court." The record does not reflect any express review or approval of the agreement by parents' counsel, written or otherwise. On December 22, 2020, the court set the matter for a contested jurisdictional hearing.
In an April 2, 2021, additional information to the court report, the social worker noted that mother had completed parenting classes. Mother reported that she had learned that in the future she needed to document and take pictures if she noticed any suspicious marks on the girls. The social worker noted that mother "has recognized why the department is involved and why CFS is concerned for the children's safety." The department asked for authority to grant unsupervised and overnight visits "when appropriate."
On April 8, 2021, the court held the contested jurisdiction hearing. Mother testified that she had requested a restraining order against father 1 in April 2020, based on child abuse when father 1 threw child 1, which the court temporarily granted. Father 1 had been arrested for throwing child 1. The restraining order was not issued with respect to any conduct of father 1 toward the girls.
The court extended the restraining order in June 2020. However, the court later denied a permanent restraining order, and the temporary restraining order was dismissed. Mother had submitted photographs of the girls' bruising to the family law court; however, that court found that "'Kids will be kids, they get bruises.'" The court had granted a new custody order giving father 1 visitation every other weekend, which was later increased to weekly.
Mother noticed the girls coming back with injuries after visiting father 1. She twice contacted the department, personnel from which rejected her complaints: "[M]ultiple times the girls came back saying that [father 1] had hit them, and it was discussed, and copies were turned into [the department on] October 26[, 2020]." Mother "printed out and gave those conversations to the social worker." In September 2020, she went to the police department.
It is unclear what conversations were purportedly printed out and given to the social worker; whether they were text "conversations" between father 1 and mother or between mother and the girls is unclear. No printouts of text conversations appear in the record.
The juvenile court inquired of the attorneys: "In what way do you believe that that rises to the level of serious physical harm? I reviewed the pictures. I have black-and-white photos, and that is the question I would have that I would need everyone to address. I understand risk also is considered. So it doesn't have to be serious at this time if there is a risk, so I understand that. But I really need that addressed in your argument."
Counsel for the department responded: "Your Honor, I have looked at the photos myself and did-I think I assessed it pretty much as the Court is stating. I think it could go either way. Actually, the way that the doctor described it, it could be just the children playing, given their ages and activity levels. It could be that. However, the way that the bruises and injuries were indicated on that one child, it looks more abusive. [¶] In the big picture, I guess, it wasn't really clear, based on the fact that the other two children's injuries were more-not necessarily-it couldn't be defined as abusive. So looking at all three of them together, it was more difficult."
The juvenile court inquired of the children's counsel: "[R]ight now-I think if I'm on the fence about proof, I would have difficulty with the (a) [allegations], but I'll let you be heard on the (a) [allegations]. I want you to know that I'm having trouble with the (a) allegation[s], so if you could address that real quick."
The children's attorney responded: "I did look at this as well and considered whether or not it would rise to the level of an (a) allegation. I think my concern, at least, with [child 2] has to do with the grabbing. Because when you have that level of bruising, and the force that would be required to grab a child by the arm and leave that mark behind, I-I am concerned that at some point in the future it would go beyond that. [¶] In terms of the other children, there are injuries that were not necessarily-cannot be correlated to physical abuse, and that was clear in the CACs. But regarding this particular child [(child 2)], I do have concerns that there was some grabbing or some force involved with one of the two parents, and neither is coming forward. . . . So, my fear is that they are at risk for substantial injury, based primarily on the evidence that someone grabbed those children and left those marks behind."
The juvenile court noted, "Right now, my tentative is not to find the (a) allegations true for the reasons we are talking about." Mother's counsel argued: "[T]he social worker comes and removes the kids from [mother] when she had been up and down trying to get somebody's attention. [¶] She went to the family court with pictures. She-in the June 24th filing, it included burn marks, which she thought were burn marks on the girls, and the family court didn't do much. The social worker didn't do much. Nothing. Until [mother] takes them to the forensic on October 21st and October 22nd, Social Worker comes and talks to [father 1], and [father 1], says, 'Oh, you know, [mother] did it.' [¶] And Social Worker says, 'Oh, okay.' And she removed the kids from both parents. . . . [¶] I don't see any evidence here, when you take a look at the history that in any way implicates Mother. I see a lot of evidence that implicates the Department."
The court found the section 300, subdivision (a), allegations untrue and dismissed them. The court found the subdivisions (b) and (j) allegations true. The court noted: "To be clear, this is a situation where the Court can't determine, despite [mother's] effort in the previous court hearings in family law court, whether the injuries occurred in her care." The court removed the children from mother's custody and placed them with the maternal grandparents. The court granted mother reunification services.
II. DISCUSSION
A. The Mediation Agreement
Mother contends the mediation agreement was ineffective and unenforceable because mother's attorney never approved it. Mother does not address the questions in our order with respect to whether, to the extent enforceable, her agreement to participate in reunification services was dependent on the court sustaining allegations against her or whether mother's agreement to family reunification services was an agreement to the removal of the children or merely participation in services.
The department contends mother's counsel's failure to object to the removal of the children at the dispositional hearing constitutes an implicit approval of the mediated agreement. Moreover, the department maintains mother's agreement to participate in reunification services was not conditioned on the court sustaining allegations against her and that the agreement included the removal of the children. The department, therefore, maintains that mother has forfeited any challenge to the court's dispositional orders. We agree with the department.
"If a dependency mediation program has been established in a juvenile court, and if mediation is requested by any person who the judge or referee deems to have a direct and legitimate interest in the particular case, or on the court's own motion, the matter may be set for confidential mediation to develop a plan in the best interests of the child, utilizing resources within the family first and within the community if required." (§ 350, subd. (a)(2).) "Dependency mediation provides a nonadversarial setting in which a mediator assists the parties in reaching a fully informed and mutually acceptable resolution that focuses on the child's safety and best interest and the safety of all family members. Dependency mediation is concerned with any and all issues related to child protection." (Cal. Rules of Court, rule 5.518(b)(1).)
All further rule references are to the California Rules of Court.
Each mediator must "[p]romote the participants' understanding of the status of the case in relation to the ongoing court process, what the case plan requires of them, and the terms of any agreement reached during the mediation." (Rule 5.518(c)(2)(I).) "When at all possible, dependency mediation should include the direct and active participation of the parties, including but not limited to the child, the parents or legal guardian, a representative of the child protective agency, and, at some stage, their respective attorneys." (Rule 5.518(d)(2)(A).)
"Any attorney who has not participated in the mediation must have an opportunity to review and agree to any proposal before it is submitted to the court for approval." (Rule 5.518(d)(2)(C).) The mediation program must include a "procedure for ensuring that each participant clearly understands any agreement reached during the mediation, and a procedure for presenting the agreement to the court for its approval. This procedure must include the requirement that all parties and the attorneys who participate in the agreement review and approve it and indicate their agreement in writing before its submission to the court." (Rule 5.518(d)(9).)
"Mediation is merely a tool to aid the parties in coming to amicable solutions to difficult family issues. While a court may look to a mediation agreement for guidance, or order that the parties engage in mediation in order to attempt to resolve differences within the confines of the orders of the court, any agreements reached by the parties are not binding on the dependency court." (In re Lance V. (2001) 90 Cal.App.4th 668, 675; accord In re Jason E. (1997) 53 Cal.App.4th 1540, 1548 [juvenile courts not bound by mediation agreement]; rule 5.518(d)(9) [mediation agreement is to be presented to court for approval]; see In re Joshua G. (2005) 129 Cal.App.4th 189, 196-197 & fn. 5 [The court is never bound by the department's recommendation as agreed to by the parties.].)
A mediation agreement is "essentially a contract." (In re N.M. (2011) 197 Cal.App.4th 159, 167.) Both the department and mother are "entitled to enforcement of the terms of their agreement. [Mother], having received the benefits of the settlement, is precluded from attempting to better the settlement on appeal. By accepting [a] negotiated settlement-and its benefits-[a parent] implicitly waive[s] [her] right to challenge" the contents of the agreement. (Ibid.)
First, it is not surprising that mother was unrepresented at mediation. Pursuant to the rules regulating mediation, the mediator is entrusted with ensuring the parties understand "the terms of any agreement reached during the mediation." (Rule 5.518(c)(2)(I).) Only at a later stage are the parties' attorneys expected to participate in order to approve the results of the mediation. (Rule 5.518(d)(2)(A), (d)(2)(C), (d)(9).)
In our order for supplemental briefing, we noted that mother was unrepresented at mediation.
Second, mother's counsel does not affirmatively show that her counsel below did not approve of the mediation agreement. "'Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error.' [Citation.] '"We must indulge in every presumption to uphold a judgment, and it is [appellant]'s burden on appeal to affirmatively demonstrate error-it will not be presumed."'" (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) Here, it is possible that mother's counsel below did expressly agree to the mediated agreement in writing. Nothing in the requirement that a parent's counsel approve of the agreement in writing requires that the written approval be submitted to the court for filing or be memorialized in open court. Thus, there is no reason for us to conclude that simply because a written approval does not appear in the record, mother's counsel never expressly approved of the agreement.
Mother does suggest, at one point, that her counsel below rendered ineffective assistance of counsel: "[A] competent attorney would have advised their client of the legal meaning of 'Family Reunification Services.' That never happened." However, mother does not develop the point with argument or citations to authority. "'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.'" (People v. Stanley (1995) 10 Cal.4th 764, 793.) Thus, we deem any intended ineffective assistance of counsel argument forfeited.
Third, mother's counsel implicitly endorsed the agreement by not objecting to the court's dispositional order, which was expressly based on the mediation agreement. Prior to the contested jurisdiction hearing, in addition to other reports, the department requested the mediation report be admitted into evidence. Mother's counsel did not object or indicate any disapproval of the content or admission of that report.
After rendering its jurisdictional findings, the court noted it was proceeding to disposition. The court observed, "I think parents had agreed to [reunification services] in mediation. So they were in agreement with that." Mother's counsel offered no objection to the court's reliance on the mediation agreement as to its dispositional orders. Mother's counsel had ample opportunity to object to the court's reliance on the mediation agreement if she disapproved of the agreement. Her failure to object implies a tacit approval of the agreement and forfeited any contention otherwise on appeal. (People v. Ross (2007) 155 Cal.App.4th 1033, 1048 [A defendant may not only forfeit an objection to a court's order but may be deemed to have tacitly approved of that order where "the court makes clear its intended [order] and defense counsel, with ample opportunity to object, fails to do so."].)
Fourth, the agreement expressly included the removal of children from mother's custody as to disposition. The mediation agreement expressly reflected that mother agreed to the children's placement with the maternal uncle and included the terms of mother's visitation with the children during the period of their removal. Therefore, the court's removal of the children was expressly within the terms of the mediation agreement, and mother is estopped from arguing otherwise. (K.G. v. County of Riverside (2003) 106 Cal.App.4th 1374, 1379{Fourth Dist., Div. Two} ["'Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.'"].)
Fifth, nothing in the agreement reflects that participation in reunification services was contingent on the court's sustainment of any allegations against mother. (Series AGI West Linn of Appian Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 164 ["[C]ourts will not rewrite contracts to relieve parties from bad deals nor make better deals for parties than they negotiated for themselves."].) Moreover, as discussed ante, mother expressly agreed to reunification services, and her counsel never objected to reunification services at the disposition. Thus, again, mother invited, forfeited, and/or tacitly approved of the disposition, which included participation in reunification services regardless of whether any of the allegations against mother were sustained. (In re D.L. (2018) 22 Cal.App.5th 1142, 1148 [Even a nonoffending parent can be compelled to participate in reunification services if the court has taken jurisdiction over the children.].)
B. The Jurisdictional Findings
Mother acknowledges at the outset that, even assuming success on her challenges to the court's jurisdictional findings, the juvenile court would still have jurisdiction over the children pursuant to its findings as they pertain to the fathers. Nonetheless, mother requests we consider the merits of her appeal, in our discretion, because "a favorable outcome would mean the difference between Mother being an offending versus a non-offending parent." Thus, mother challenges the sufficiency of the evidence to support the section 300, subdivisions (b) and (j), allegations.
The department contends that mother forfeited any challenge to the court's jurisdictional findings because she failed to object to the court's dispositional orders and "knowingly agreed to the orders." Similarly, the department argues we should decline to reach the merits of mother's challenges because the allegations pertaining to the fathers separately supported the juvenile court's jurisdiction; thus, mother's "claimed errors have no practical effect on the court's dependency jurisdiction." Assuming arguendo that mother can challenge the sufficiency of the evidence to support the section 300, subdivisions (b) and (j), allegations, the department maintains sufficient evidence supports the court's findings.
We hold that mother has preserved her right to challenge the court's jurisdictional findings against her by contesting them below. We similarly hold that mother's challenge to the court's jurisdictional findings is justiciable. Finally, we hold that insufficient evidence supports the allegations pertaining to mother.
1. Mother's assent to the dispositional orders
The department contends the appeal should be dismissed because mother failed to object to the court's dispositional orders and, "knowingly agreed to the orders." We disagree.
"A reviewing court ordinarily will not consider a challenge to a lower court's ruling if an objection could have been, but was not, made below. [Citation.] This rule is applicable in dependency matters, and its purpose is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. [Citation.] But here, mother preserved her right to challenge the sufficiency of the evidence supporting the juvenile court's orders by requesting a contested jurisdictional/dispositional hearing after the parties were unable to reach a negotiated resolution. 'Sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal.'" (In re Isabella F. (2014) 226 Cal.App.4th 128, 136.)
Here, mother's agreement to the removal of the children and reunification services did not forfeit or invite any error with respect to the court's jurisdictional findings because both mother and father 1 contested the juvenile court's jurisdiction over the children. The court set a contested jurisdictional hearing at which mother testified, and her counsel argued, against the court's jurisdiction. Had the court found that the allegations alleged in the petitions were untrue, mother would not have been an offending parent. Thus, mother did not forfeit or invite any error with respect to the court's jurisdictional findings.
2. Justiciability of mother's challenges to the jurisdictional findings
The department maintains that because the allegations pertaining to the fathers independently support the juvenile court's jurisdiction, mother's "claimed errors have no practical effect on the court's dependency jurisdiction." Ergo, we should decline to address mother's challenges to the jurisdictional findings. We disagree.
"'[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 [him] within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.'" (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.) "As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate." (In re Ashley B. (2011) 202 Cal.App.4th 968, 979.) Even a nonoffending parent can be compelled to participate in reunification services if the court has taken jurisdiction over the children. (In re D.L., supra, 22 Cal.App.5th at p. 1148.)
"However, we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction.'" (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; accord, In re D.P. (2014) 225 Cal.App.4th 898, 902 ["[W]e may also exercise our discretion to reach the merits of a challenge to any jurisdictional finding when the finding may be prejudicial to the appellant . . . ."]; In re D.C. (2011) 195 Cal.App.4th 1010, 1015 [Where a juvenile court's ruling "could be prejudicial to [the mother] if she is involved in future child dependency proceedings," an appellate court would "consider the merits of her appeal."]; In re Rashad. D. (2021) 63 Cal.App.5th 156, 164 ["[A]n erroneous jurisdiction finding can have unfavorable consequences extending beyond termination of dependency jurisdiction."]; contra, In re I.A. (2011) 201 Cal.App.4th 1484, 1495 [Dismissing an appeal and finding that "[i]n any future dependency proceeding, a finding of jurisdiction must be based on current conditions."].)
Here, we exercise our discretion to address mother's challenges to the jurisdictional findings because of the prejudice that may attach to mother from those findings as an offending parent. The court's jurisdictional findings include that due to mother's failure or inability to adequately supervise or protect child 2, that child was abused, and there was a substantial risk that the remaining children would likewise suffer serious physical harm. In the context of this case, the section 300, subdivision (j), finding strongly implies, if not expressly reflects, that child 2 was in fact physically abused. Thus, the court's jurisdictional findings may prejudice mother both in the instant case and beyond, e.g., in any attempt by a subsequent court to take jurisdiction over mother's current or future children. They may also affect any future orders in the family law court since mother had initiated proceedings there prior to the juvenile court's intervention.
3. Sufficiency of the evidence to support the section 300 , subdivisions (b) and (j), allegations
Mother contends the evidence was insufficient to support the court's findings that at the time of the jurisdictional hearing, the children were at substantial risk of future harm based on mother's conduct. We agree.
"'The three elements for jurisdiction under section 300, subdivision (b) are: "'(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the [child], or a "substantial risk" of such harm or illness.'" [Citation.] "The third element, however, effectively requires a showing that at the time of the jurisdictional 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)."' [Citation.] Evidence of past conduct may be probative of current conditions. [Citation.] To establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.'" (In re D.L., supra, 22 Cal.App.5th at p. 1146; cf. In re R.T. (2017) 3 Cal.5th 622, 629 [Failure or inability to protect does not require parental culpability.].)
With respect to the third prong, "'previous 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.'" (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.) A finding under section 300, subdivision (j), "requires a finding of a current risk of abuse . . . ." (In re Carlos T. (2009) 174 Cal.App.4th 795, 803 ["[A] finding of current risk is required for jurisdiction under subdivisions (b) and (j)."].)
"'In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we 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 R.T., supra, 3 Cal.5th at p. 633.) "'"We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] '"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]."'"'" (In re I.J. (2013) 56 Cal.4th 766, 773.)
Here, at the outset, even the department recognized the dearth of evidence to support the conclusion that children 1, 3, and 4 had suffered serious physical harm or that any harm they had experienced was the result of an intentional act by mother: "Your Honor, I have looked at the photos myself and did-I think I assessed it pretty much as the Court is stating. I think it could go either way. Actually, the way that the doctor described it, it could be just the children playing, given their ages and activity levels. [¶] In the big picture, I guess, it wasn't really clear, based on the fact that the other two children's injuries were more-not necessarily-it couldn't be defined as abusive."
The court found little evidence to support a contention that any of the children had suffered serious physical harm or that any harm was the result of an intentional act by mother: "In what way do you believe that that rises to the level of serious physical harm? I reviewed the pictures. I have black-and-white photos, and that is the question I would have that I would need everyone to address. I understand risk also is considered. So it doesn't have to be serious at this time if there is a risk, so I understand that. But I really need that addressed in your argument. [¶] . . . [¶] . . . [R]ight now-I think if I'm on the fence about proof, I would have difficulty with the (a) [allegations], but I'll let you be heard on the (a) [allegations]. I want you to know that I'm having trouble with the (a) allegation[s], so if you could address that real quick. [¶] . . . [¶] Right now, my tentative is not to find the (a) allegations true for the reasons we are talking about." Ultimately, the court found the section 300, subdivision (a), allegations untrue. It also found that none of the children had already suffered serious physical harm. We, like the trial court, have only black-and-white photographs of child 2's injuries, which do not appear serious. Thus, the question is, having found that the children had not already suffered serious physical harm, were they at risk of suffering such harm in the future?
Insufficient evidence supports the juvenile court's finding that the children were at risk of suffering serious physical harm by mother in the future. Even prior to the filing of the petitions, mother had repeatedly taken steps to protect the children whenever they appeared at risk of any harm. In April 2020, father 1 was arrested for hitting child 1 upon the accusation of mother. She obtained a temporary restraining order prohibiting father 1 from having contact with her and the children. Mother attempted to obtain a permanent restraining order against father 1, which the court denied. The matter was brought to the department's attention in the current case when she took the children to the police station when she believed child 2 and child 3 had been sexually abused by father 1. On October 20, 2020, mother e-mailed the social worker pictures of the girls with bruises and scratches after they had returned home from a visit with father 1.
Even assuming child 2's injuries had occurred while in mother's care, there was no evidence that the children were at substantial risk of serious physical harm in the future. At the time of the jurisdictional hearing, more than five months had passed since the court had detained the children. Mother had completed parenting classes. Mother reported that in the future, she would document and take pictures if she noticed any suspicious marks on the children. The social worker noted that mother "has recognized why the department is involved and why CFS is concerned for the children's safety."
Mother had completed eight sessions of individual therapy. The therapist noted that mother had "a positive prognosis of remediation of her referring problems . . . ." The therapist also noted that mother's case plan goals had been completed and recommended therapy be discontinued. Moreover, mother had agreed to reunification services, which would provide the department sufficient oversight to ensure the children would not suffer serious physical injuries in the future. Insufficient evidence supports the juvenile court's true findings on the section 300, subdivisions (b) and (j), allegations as follows: allegations B-3 and J-5 as to children 2 and 3; allegation B-3 as to child 2; and allegations B-2 and J-5 as to child 1.
III. DISPOSITION
The judgment is reversed as to the section 300, subdivisions (b) and (j), jurisdictional true findings that pertain to mother's conduct. In all other respects, the judgment is affirmed.
I concur:
FIELDS J.
MENETREZ, J., Dissenting.
The panel unanimously agrees that the evidence is insufficient to warrant removal of any of the children from the custody of appellant V.B. (mother). But the juvenile court removed all of them, and the majority opinion does nothing about it.
Instead, the majority opinion gives mother the hollowest of victories, reversing all of the true findings on the jurisdictional allegations against her but affirming the disposition in its entirety, including the removal of all four children from mother's custody. That is like reversing a criminal conviction but affirming the sentence.
In my view, the majority opinion's resolution of this case is not only logically incoherent but also contrary to the record in several ways. The record does not contain substantial evidence to support any jurisdictional allegations as to the teenage boy (child 1). The record does, however, contain substantial evidence to support the true findings on the jurisdictional allegations as to the three young girls (child 2, child 3, and child 4) concerning both mother and the girls' father (father 1). But the record does not contain substantial evidence to support removal of the girls from their parents' custody. Accordingly, we should reverse with directions to dismiss the petition as to child 1 and to conduct a new disposition hearing as to child 2, child 3, and child 4.
BACKGROUND
This case began when mother accused father 1 of sexually abusing the girls, who were then one, two, and three years old. Mother took the girls to a police station and then to a medical examination at the Children's Assessment Center to investigate her claims. The doctor who conducted the examination concluded that there was a "'low likelihood of sexual abuse, '" but the doctor also identified some bruises on the belly and forearm of the oldest girl that were "'suspicious for physical abuse due to their location and cluster.'" It appeared that mother had never noticed the bruises, and the doctor was "concerned that mother had no clue how [the] child sustained these injuries." According to the doctor, some of the marks could have been caused by "mother's long nails-as mother has long, red, manicured nails-as they are consistent with grab marks." The doctor also explained that "it's hard to monitor that many children and the parents may be at their wit's end," suggesting that the bruising might be the result of inappropriate physical discipline because the parents are overwhelmed. There were other marks that the doctor was not concerned about, at least one on child 2 and another on child 4 for which mother gave an explanation.
San Bernardino County Children and Family Services (CFS) investigated for physical abuse. When interviewed, mother and father 1 denied causing the bruises and blamed each other. The girls could not be interviewed; child 3 and child 4 were too young, and child 2 (the oldest girl) would not speak, whether from lack of language development, shyness, or some other cause.
Child 1, a 13-year-old boy, was interviewed for the detention report and said he did not know anything about his sister's injuries, no one was hitting or hurting him, and he was not afraid of or worried about anything. When interviewed for the jurisdiction/disposition report, he again reported no concerns. When asked to rate how safe he feels on a scale from 0 (unsafe) to 10 (safe), he answered "10."
About six months before the girls' sexual abuse examination, there was an incident in which father 1 (i.e., the girls' father) picked up child 1 (i.e., the teenage boy) and "threw him to the end of the bed" because child 1 would not give his phone to father 1. Child 1 was not injured. Mother then sought a restraining order against father 1, but her application was denied.
According to mother, child 1's father (father 2) had not been part of child 1's life since child 1 was 11 months old. By family court order, mother has physical custody of child 1, and father 2 has only supervised visits. According to father 2, who was located and interviewed for the jurisdiction/disposition report, he last saw child 1 in person when child 1 was four years old. Father 2 said that "he would like to see [child 1] and build a relationship with him if [child 1] wants to." When interviewed, child 1 said he did not want to see father 2.
CFS decided to seek detention of all four children, and both mother and father 1 consented to the detention. (Father 2 had not been located at that time.) According to the detention report, mother "readily signed" the consent form, "as if a weight ha[d] been lifted off her."
By the time of the jurisdiction/disposition hearing, both mother and father 1 had completed parenting classes. Both parents continued to "deny abusing the children." The juvenile court sustained allegations under subdivisions (b) and (j) of Welfare and Institutions Code section 300 as to all four children and all three parents (except that there was no allegation under subdivision (j) as to child 1). (Undesignated statutory citations are to the Welfare and Institutions Code.) The court removed all of the children from their parents' custody and ordered reunification services.
DISCUSSION
I. Jurisdiction
Although the evidence concerning the girls is thin, I believe it is sufficient to support allegations under subdivision (b) of section 300 as to both mother and father 1 for all three girls. Child 2 had sustained physical injuries that, in the opinion of the doctor who examined her, were suspicious for physical abuse. Both parents denied responsibility and pointed the finger at each other, and the girls were very young and could not speak for themselves. Under those circumstances, it was reasonable for the juvenile court to sustain allegations against both parents for failure to protect. Regardless of whether the bruises were inflicted by mother, father 1, or a third party (for example, each parent expressed suspicions about the other's babysitter), the injuries happened on the parents' watch, neither parent could explain them, a doctor opined that they were suspicious for physical abuse, and all three girls were similarly situated.
That is the reasoning expressed by both the emergency response social worker in the detention report and the juvenile court at the jurisdiction hearing. In the words of the social worker, "the challenge is that [father 1] said the injuries came from mother and mother said they came from him and since the girls cannot readily speak for themselves, their safety and well-being is at stake." Similarly, the juvenile court explained its ruling on the petition as follows: "To be clear, this is a situation where the [c]ourt can't determine, despite Mom's effort in the previous court hearings in family law court, whether the injuries occurred in her care. That could be somebody she entrusted to watch her child, so it may not have been her or if in [father 1's] care. The [c]ourt cannot make that determination, but the [c]ourt does know that something happened to the kids while in one of their care, and that is sufficient to establish jurisdiction over the children for this case. So that's what I'm doing."
I do not mean to suggest that unexplained bruising on a child is always sufficient for dependency jurisdiction. Of course it is not. Active children can innocently get bruises without anyone knowing how or remembering how. But here the doctor who examined the girls opined that the bruises were suspicious for physical abuse, and the girls are very young and could not be interviewed. In addition, the doctor's opinion has at least two indicia of reliability: (1) Because the doctor conducts forensic medical examinations for the Children's Assessment Center, it is reasonable to infer that he has relevant expertise in identifying physical signs of abuse or neglect; and (2) he discounted some of the marks he found on the girls, indicating that he does not see every bruise or scrape as evidence of abuse. Given the evidence as a whole, and given that it was impossible to determine which parent had either inflicted the injuries or failed to protect child 2 from whoever did inflict them, it was reasonable for the trial court to sustain the allegations under subdivision (b) of section 300 as to mother and father 1 for all three girls. (The allegations under subdivision (j) of section 300 were identical to the allegations under subdivision (b) and hence need not be discussed separately.)
The majority opinion never addresses the juvenile court's stated basis for sustaining the allegations under subdivisions (b) and (j) of section 300, instead focusing on the court's basis for dismissing the allegations under subdivision (a). (Maj. opn., ante, at p. 24.) I agree with the juvenile court's dismissal of those allegations, because subdivision (a) of section 300 applies only if the injuries were inflicted "nonaccidentally," and the record contains no evidence of that. But it does not follow that the evidence is insufficient to support the allegations under subdivision (b) of section 300, which does not require nonaccidental infliction of harm. (In re Cole L. (2021) 70 Cal.App.5th 591, 603.)
For the foregoing reasons, I believe the record contains substantial evidence supporting the juvenile court's true findings on the jurisdictional allegations as to mother and father 1 concerning the three girls.
The jurisdictional allegations concerning the teenage boy, child 1, are a different matter. He never suffered any physical injuries, and there was no evidence that he was at risk of suffering any. He was interviewed repeatedly, he consistently maintained that no one was hitting or hurting him and that he felt safe, and there was no evidence to the contrary. There was the incident with father 1 (who is not child 1's father), but (1) the incident took place six months before the events leading to this case, (2) there was no evidence that it might recur, (3) child 1 was not injured in that incident, and (4) mother responded to the incident in a protective manner, seeking a restraining order protecting child 1 from father 1, which was denied. Perhaps for those reasons, CFS does not argue that the incident with father 1 was a basis for sustaining any jurisdictional allegations as to child 1. There is simply no evidence that mother poses any risk of harm to child 1 or is failing to protect him from such a risk, or that child 1 is subject to any risk of harm at all.
The sustained allegation against child 1's father, father 2, fares no better. Mother has sole physical custody of child 1, and father 2 has only monitored visits. As a result, father 2's ability to protect child 1 from anything is severely limited by court order. There is no evidence that father 2 knew or should have known about any harm or risk of harm to child 1 and failed to protect him. Moreover, the sole allegation that was sustained against father 2 was the following: "The availability and willingness of the child's alleged father, [father 2], to provide for the child, [child 1], is unknown. He has reportedly not been involved in the child's life since he was 1-year-old." The first sentence is not only unsupported but conclusively refuted by the evidence in the record. Father 2 was contacted and interviewed. By the time of the jurisdiction hearing, his availability and willingness were known to everyone in this case, though it was also known that, by family court order, he had only monitored visits. And yet the juvenile court found the allegation true. The second sentence of the allegation-that father 2 reportedly has not been involved in child 1's life since the child was one year old-adds nothing. Although the sentence is obviously true (given the qualification "reportedly"), it is also obviously insufficient for dependency jurisdiction.
In its supplemental brief, CFS argues that the basis for sustaining a jurisdictional allegation as to father 2 is his failure to protect child 1 from mother. The argument is meritless for at least two reasons. First, the petition for child 1 does not alleged that father 2 failed to protect child 1 from mother. We cannot affirm the assertion of dependency jurisdiction over child 1 on the basis of evidence putatively supporting an allegation that was never made. (In re I.S. (2021) 67 Cal.App.5th 918, 927 [parents have a due process right to notice of the specific allegations on which the petition is based]; In re Andrew S. (2016) 2 Cal.App.5th 536, 544 (Andrew S.).) Second, as I have already explained, there is no evidence of any risk posed to child 1 by mother. In support of its contrary argument, CFS relies on a referral from 2018 in which it was alleged both that mother "throws [child 1] against the wall if he gets in trouble" and that child 1 is sometimes "late to school because he has to care for his siblings." The detention report reflects that the "Disposition" of the referral was "EVO," presumably meaning "evaluated out." A referral from 2018 that was never substantiated does not constitute substantial evidence to support dependency jurisdiction in 2021, when the petitions in this case were adjudicated. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [court's jurisdictional findings must be based on evidence of circumstances existing at the time of the hearing].)
In sum, although the evidence concerning the girls is thin, I believe it is sufficient to sustain allegations against both mother and father 1 under subdivision (b) of section 300. But there is no evidence that either of child 1's parents poses any risk to him or is failing to protect him from anything. He has no business being in dependency court.
Neither of the fathers has appealed. In our order requesting supplemental briefing, we asked the parties to address several issues, including (1) whether the evidence was sufficient to support any of the jurisdictional allegations as to child 1, and (2) whether mother has standing to challenge the sufficiency of the evidence for the jurisdictional allegations against child 1's father. Our order also cited case law indicating that mother does have standing. (In re R.V. (2012) 208 Cal.App.4th 837, 848-849 (R.V.); In re E.E. (2020) 49 Cal.App.5th 195, 215, fn. 4.) Mother's supplemental brief does not address either question. CFS's supplemental brief concedes the standing issue but argues that the evidence is sufficient for jurisdiction over child 1. Having given the parties the opportunity to brief the issues, we are not prohibited from reaching the issues ourselves, notwithstanding mother's appellate counsel's failure to brief them after having been directed to do so by this court. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 (Williams) ["An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party"]; Hibernia Sav. & Loan Soc. v. Farnham (1908) 153 Cal. 578, 584 [an appellate court "is undoubtedly at liberty to decide a case upon any points that its proper disposition may seem to require, whether taken by counsel or not"].)
II. Disposition
Although the evidence is sufficient for jurisdiction as to the three girls, it is insufficient for removal of the girls from the custody of their parents at disposition. That is unsurprising, because the evidence is barely sufficient for jurisdiction, and removal requires a much more robust showing.
To assert jurisdiction over a child under subdivision (b) of section 300, the juvenile court need only find by a preponderance of the 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 the child's parent . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1).) But in order to remove a child from parental custody at disposition, the court must find by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).)
There are at least two reasons why the evidence concerning the girls, although sufficient for jurisdiction, is not sufficient for removal from parental custody. First, the jurisdictional findings do not address whether there are reasonable means to protect the children without removal. Here, once the court exercised jurisdiction over the children, they would remain under the watchful eyes of CFS and the court. The court could have placed the girls with their parents on condition that the parents comply with frequent unannounced home visits, so that the social worker could regularly and without warning assess the children in person to look for any signs of injury or mistreatment. The court could also have ordered other in-home support services, such as Family Preservation, both to assist the parents in learning how to parent these three young girls appropriately and to put additional trained observers in the home to look for any indications of abuse or neglect. (In re Ashley F. (2014) 225 Cal.App.4th 803, 810 [juvenile court should have considered reasonable means to protect the children, including unannounced visits by the child welfare agency and in-home counseling services].) There is no evidence that these measures or others would not have been adequate to keep the girls safe. Accordingly, there is no evidence, let alone clear and convincing evidence, that there were no reasonable means to protect the girls without removal. (See In re Hailey T. (2012) 212 Cal.App.4th 139, 145-148.)
Second, substantial evidence review on appeal is informed by the standard of proof applied in the trial court. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995 ["appellate review of the sufficiency of the evidence in support of a finding requiring clear and convincing proof must account for the level of confidence this standard demands"]; In re V.L. (2020) 54 Cal.App.5th 147, 149, 155 [applying Conservatorship of O.B. to substantial evidence review of the court's dispositional order].) The evidence concerning the girls, although sufficient to support a finding by a preponderance (i.e., that it is more likely than not) that they were at risk of physical harm, is not sufficient to support a finding by clear and convincing evidence (i.e., that there is a high probability) of a substantial danger to their safety. The evidence depends entirely on the doctor's opinion that the bruising on child 2, because of its "'location and cluster, '" was "'suspicious for physical abuse.'" As the juvenile court recognized, we do not know what happened to child 2, who caused it, or how, and the injuries were minor, nothing more than some suspicious bruising. Without more, that evidence does not show that it is highly probable that there is a substantial danger to the girls' safety. (Conservatorship of O.B., supra, 9 Cal.5th at pp. 998-999; In re I.R. (2021) 61 Cal.App.5th 510, 520 [a jurisdictional "finding of parental abuse cannot alone provide the clear and convincing evidence necessary to justify removing a child"].)
Finally, given the majority opinion's determination that the evidence is insufficient to support any of the jurisdictional allegations against mother, it follows that the evidence must be insufficient to support removal of any of the children from mother's custody. (Andrew S., supra, 2 Cal.App.5th at p. 544.) Again, the standard for removal is more demanding than for jurisdiction-there are additional elements and a higher standard of proof. Thus, if the majority opinion were to reach the issue of disposition, its analysis of the evidence for jurisdiction would require that we reverse and remand for a new disposition hearing for all of the children. In fact, the result would be the same if the majority opinion were to reach the issue of disposition only as to mother. We would still have to reverse and remand for a new disposition hearing.
For all of these reasons, I conclude that the juvenile court's removal of the children from their parents' custody was not supported by substantial evidence. We should accordingly reverse and remand for a new disposition hearing.
III. Forfeiture and Related Issues
The majority opinion concludes that mother forfeited any challenge to disposition, both because she agreed to the disposition at mediation and because mother's counsel did not object to disposition in the juvenile court. (Maj. opn., ante, at pp. 13-18.) The analysis is mistaken.
Mother's argument against disposition, like her argument against jurisdiction, is a substantial evidence challenge. Substantial evidence challenges are not forfeited by failure to raise them in the trial court. (R.V., supra, 208 Cal.App.4th at p. 848 [substantial evidence challenge to disposition not forfeited by failure to raise it in the juvenile court]; In re Javier G. (2006) 137 Cal.App.4th 453, 464 [same] (Javier G.); see generally People v. Butler (2003) 31 Cal.4th 1119, 1126 & fn. 4 (Butler).) Mother's counsel's failure to object at disposition therefore did not forfeit mother's substantial evidence challenge to the removal of her children from her custody.
The majority opinion reasons that mother unconditionally agreed at mediation to the removal of her children from her custody regardless of whether any of the jurisdictional allegations against her were sustained, so she has forfeited any challenge to that removal. (Maj. opn., ante, at pp. 13, 17-18.) I disagree for numerous reasons. First, the majority opinion claims that the mediation agreement is an enforceable contract and that because mother has "'received the benefits'" of the agreement, she "'is precluded from attempting to better the settlement on appeal.'" (Maj. opn., ante, at p. 15.) But the majority opinion fails to identify any benefits that mother received under the mediation agreement. In fact, she received nothing. The agreement was entirely unilateral-the parents made concessions, and CFS made none. Hence, as a matter of contract law, the mediation agreement is unenforceable for lack of consideration (Us Ecology v. Cal. (2001) 92 Cal.App.4th 113, 128), and mother, having accepted no benefits under the agreement (there were none to accept) is not precluded from raising her substantial evidence challenge on appeal.
Second, as the majority opinion recognizes, the mediation agreement is not binding on the juvenile court. (Maj. opn., ante, at p. 15; see In re Lance V. (2001) 90 Cal.App.4th 668, 675; In re Jason E. (1997) 53 Cal.App.4th 1540, 1548; In re Joshua G. (2005) 129 Cal.App.4th 189, 196-197 & fn. 5.) Indeed, the juvenile court lacks the power to remove children from parental custody unless the court makes the necessary findings, regardless of any agreement the parties might reach. (In re Ashley M. (2003) 114 Cal.App.4th 1, 6 ["The juvenile court is a special department of the superior court whose powers are limited to those granted by the Juvenile Court Law"]; § 361, subd. (c) ["A dependent child shall not be taken from the physical custody of his or her parents" unless the juvenile court makes the necessary findings by clear and convincing evidence].) Mother's unilateral mediation agreement consequently cannot insulate the juvenile court's removal findings from substantial evidence review on appeal. Regardless of what the parties agreed to, the court still had to exercise its own judgment and determine whether there was clear and convincing evidence to support the required findings. Those factual findings are reviewable on appeal like any others, and again, substantial evidence challenges are not forfeited by failure to raise them in the trial court. (R.V., supra, 208 Cal.App.4th at p. 848; Javier G., supra, 137 Cal.App.4th at p. 464; Butler, supra, 31 Cal.4th at p. 1126 & fn. 4.)
Third, assuming for the sake of argument that mother did make the unconditional agreement that the majority opinion attributes to her, doctrines of forfeiture, invited error, and estoppel would at most allow but would not require us to decline to reach the issue. (Williams, supra, 17 Cal.4th at p. 161, fn. 6.) The panel is unanimous that the evidence is insufficient to support removal of the children from mother-the majority believes that the evidence does not meet even the lower standard for jurisdiction as to mother. (See Andrew S., supra, 2 Cal.App.5th at p. 544.) Given that we all agree that the removal orders are not supported by substantial evidence, we should exercise our discretion to reach the issue in the interest of justice, regardless of whether a forfeiture rule might apply.
Fourth, the agreement that the majority opinion attributes to mother is inherently illogical. It would be like unconditionally agreeing to a prison sentence regardless of whether the jury returned a guilty verdict. We should give agreements reasonable interpretations that avoid absurd results. (Eucasia Schools Worldwide, Inc. v. DW August Co. (2013) 218 Cal.App.4th 176, 182.) We would need extremely strong evidence before attributing such a patently irrational agreement to any party.
Fifth, we have no such evidence. The mediation report states that mother agreed "to Family Reunification services" and "to placement with the minor's maternal uncle." The majority opinion concludes that mother thereby unconditionally agreed to removal of the children from her custody. (Maj. opn., ante, at p. 17.) But the mediation report does not say that mother agreed to removal. We have no way of knowing whether mother thought she was agreeing only to participation in services and placement with the uncle if her children were removed from her custody. And we have no way of knowing whether even that agreement was conditioned on the sustaining of at least one jurisdictional allegation against her. We consequently do not have strong evidence of an unconditional agreement to removal.
Sixth, the mediation report itself provides that all agreements are subject to review and approval by counsel, as required by rule 5.518(d)(2)(C) of the California Rules of Court. The majority opinion reasons that mother's counsel's "failure to object implies a tacit approval of the agreement" (maj. opn., ante, at p. 17), but there are at least two problems with that argument. First, nothing in the record affirmatively indicates that counsel reviewed and approved the mediation report. (See Cal. Rules of Court, rule 5.518(d)(9) [requiring "that all parties and the attorneys who participate in the agreement review and approve it and indicate their agreement in writing"].) Second and more importantly, if the mediation report means what the majority opinion says it means, namely, that mother unconditionally agreed to removal of all of her children from her custody even if all of the jurisdictional allegations against her were dismissed, then no competent attorney representing mother could have approved it. The majority opinion does not dispute that conclusion-instead, it deems mother's ineffective assistance of counsel argument forfeited. (Maj. opn., ante, at p. 16, fn. 14.) In sum, either the mediation report was never approved by mother's counsel and thus was ineffective under the California Rules of Court, or the report does not mean what the majority opinion says it means, or mother's counsel rendered ineffective assistance. One way or another, the mediation report does not prevent us from addressing mother's substantial evidence challenge to the removal of her children from her custody.
There is one further aspect of the majority opinion's analysis that deserves mention. The majority opinion states that mother's trial counsel had "ample opportunity" to object to disposition. (Maj. opn., ante, at p. 17.) The record does not support that characterization. The juvenile court did not entertain any argument as to disposition. Rather, after hearing argument on jurisdiction and announcing its ruling, the court immediately began adopting CFS's recommended findings and orders as to disposition. Minor's counsel objected to unsupervised visitation, and the court then asked county counsel if there were "any changes to the findings and orders." That was it. I agree that mother's counsel could (and should) have been more assertive in protecting her client's rights by interrupting the court and at least lodging an objection for the record or incorporating her arguments concerning jurisdiction as to disposition as well. But to describe the hearing as affording counsel "ample opportunity" (maj. opn., ante, at p. 17) to do so is not accurate. Nothing in the reporter's transcript suggests that the court desired or expected or would have been receptive to any input from parents' counsel as to disposition.
For all of these reasons, I believe the majority opinion errs by declining to address disposition. In her supplemental brief, mother argues that the findings and orders removing the children from her custody are not supported by substantial evidence. Nothing prevents us from addressing that argument on the merits, and we all agree that it is meritorious.
IV. Conclusion
The juvenile court got a lot of things in this case wrong. It should not have sustained any jurisdictional allegations as to child 1, and at disposition it should not have removed any of the children from the custody of their parents. There is no substantial evidence to support the juvenile court's rulings on any of those points. The majority opinion makes matters worse by partially reversing one of the few things that the juvenile court got right-namely, the sustaining of the jurisdictional allegations concerning the girls as to both of their parents-but leaving all of the juvenile court's errors intact.
In my view, the record reflects that the juvenile dependency judicial system has failed this family in a lamentably comprehensive manner. No attorney for the parents or the children noticed that child 1 is differently situated from the girls and that there is no evidence of any risk posed to him by either of his parents. Nor did any attorney, including father 2's attorney, notice that the sole allegation against father 2 is conclusively refuted by the admitted evidence. Neither the mediator nor any attorney tried to protect mother or father 1 from being stuck with the ambiguous and/or absurd agreement reflected in the mediation report. No attorney even suggested that, on such weak evidence for jurisdiction, the question of removal at disposition might call for a different answer. All of those points escaped the notice of the juvenile court as well. Mother's appellate counsel too did not notice that the sole allegation against father 2 was conclusively refuted by the admitted evidence; mother's opening brief and reply brief say nothing about it. When we ordered supplemental briefs on several issues, including the sufficiency of the evidence against father 2 and mother's standing to challenge it, mother's counsel still failed to address both points, even though our order cited relevant legal authority. And now this court, instead of performing its core function of error correction, is introducing a new error while leaving the juvenile court's errors untouched.
For all of these reasons, I respectfully dissent. We should reverse and remand with directions to dismiss child 1's petition and to conduct a new disposition hearing for child 2, child 3, and child 4.